Ilgenfritz v. Ilgenfritz

Ellison, J. This action is in equity and is brought by the plaintiff against defendant, her husband. We have set out the pleadings in the statement, to. which — 135 — reference is made, that the nature of the relief and the kind of property may be ascertained. The evidence shows that at the time of their marriage, in 1880, the friends of the plaintiff gave to her a part of the articles described in petition, as “wedding presents,” the remainder were given to her by her parents and other friends after the-marriage, “in the nature of wedding gifts.” All the articles are either of household use or ornament, and all were given to her either in view of her approaching marriage to defendant, or. afterwards, for household use. No words accompanied the gifts, evidencing the intention of the donors to give her separate ownership — simply the usual words of compliment to her, and the plaintiff herself says, “They were given to me with the purpose in view, so far as I know, of using them as a married woman, in my home after I was married,” and “They are things that I certainly had no use for in the world as a single woman.77 After the marriage, these articles were taken to their home in Sedaba, where they remained until taken therefrom by the order of the court in this case. On the thirtieth day of November, 1887, plaintiff and defendant entered into an agreement that they should live separate for a short time. The defendant admits that they agreed to separate for awhile, but averred that such agreement was not willingly made by him, but solely in the hope that they would again unite. Failing to do so, he withdrew from said .agreement and demanded that she return to her home, where he was ready to provide for her, and in which he had kept all the articles described. It is conceded by the parties that at common law the husband would have been the owner of the articles of property enumerated in plaintiff 7s petition, and her claim or right is based upon section 6869, Revised Statutes, 1889, wherein it is enacted that: “All real estate — 136 — and personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture, by gift, bequest or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor, or has grown out of any violation of her personal rights, shall, together with all income, increase and profit thereof, be and remain her separate property and under her sole control, and shall not be liable to be taken by any process of law for the debts of her husband. This section shall not affect the title of any husband to any. personal property reduced to his possession with the express assent of- his wife: provided, that said personal property' shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care or protection thereof, but the same shall remain her separate property, unless by the terms of said assent, in writing, full authority shall have been given by the wife to the husband to sell, incumber or otherwise dispose of the same for his own use and benefit; but such property shall be subject to execution for the payment of the debts of the wife contracted before or during marriage, and for any debt or liability of her husband, created for necessaries for the wife or family; and any such married woman may in her own name, and without joining her husband as a party plaintiff, institute and maintain any action, in any of the courts of this state having jurisdiction for the recovery of any such personal property, including rights in action as aforesaid, with the same force and effect as if such married woman was a feme sole: .provided, any judgment for costs in any such proceeding, rendered against any such married woman, may be satisfied out of any separate property of such married woman subject to execution.” — 137 — Defendant contends that this statute does not confer' upon the wife the right to an exclusive possession of the property therein described as against the husband. We are of the opinion that the language of the statute, as well as the apparent intention, does not justify defendant’s construction. It is declared that the property shall be the wife’s separate property and shall be under her sole control. It cannot reasonably be contended that the only or chief object of the law-makers was to free such property frqm the debts of the husband. The intention was, furthermore, to divest the husband of all interest therein. It is contemplated by the statute that the husband may use and care for such property, but this is evidently in recognition of the fact that usually such property will be under the care and protection of the husband by reason of their harmonious marital relation; the wife’s consent to such use and care resulting from such relation. The use and care of such property by the husband is essentially permissive. This care and protection is in the nature of an agency. This construction is strengthened by the additional provision of the same statute, which’ clothes her with the- power and right to . protect such property and her rights therein'by suit, without joining her husband. It is next insisted that, to vest a separate title in the wife to property given - to her by a person other than her husband, a clear intention on the part of the donor that it is for her separate use must appear. We rule the point against' defendant. The wedding presents given to her before the marriage ceremony were her property “at her marriage.” And the presents which were given to her after her marriage were property which “came to her during coverture, by gift'.” In either instance the property is her statutory separate estate, and an intention on the part of the donor need — 138 — not appear in order to make it her separate property; the statute itself designates the effect of the gift. It is further insisted that, under the provisions of our present statute, plaintiff had a remedy at law by bringing an action of replevin against defendant, and that, therefore, a bill in equity cannot be sustained. The sections relied upon are the following, in addition to section quoted above (R. S. 1889, sec. 1996): “ A married woman may, in her own name, with or without joining her husband as a party, sue and be sued in any of the courts of this state having jurisdiction, with the same force and effect as if she was a feme sole, and any judgment in the cause shall have the same force and effect as if she were unmarried.” R. S. 1889, sec. 6864. “A married woman shall be deemed feme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued, and to enforce and have enforced against her property such judgments as may be rendered for or against her, and may sue and be sued at law or in equity, with or without her husband being joined asa party: provided, a married woman may invoke all exemption and homestead laws now in force for the protection of personal and real property owned by the head of a family, except in cases where the husband has claimed such exemption and homestead rights for the protection of his own property.” In our opinion, neither of these statutes authorizes the wife to sue the husband at law. They give her the right to sue without joining her husband ás a party plaintiff — she may bring her action independent of her husband — and a third party may sue her without joining the husband as a party defendant. But she is not. empowered to sue her husband. The unity of husband and wife is not destroyed by these statutes. They are, as before these statutes, one legal entity in the eye of — 139 — the law, except as they are separated by the express provisions of the statute, or necessary implications arising from such provisions. We are cited to the cases of Larison v. Larison, 9 Ill. 27, and Wilson v. Wilson, 36 Cal. 451, where the husband is sued at law by the wife. In the former case, the action is for injuries to her property; and, in the latter, on a promissory note. But in each case a statute is cited, giving authority in express words for either to sue the other. What we have said in this opinion sufficiently disposes of the question as to striking out a portion of the answer. Other points suggested by defendant are not deemed tenable, and the judgment will be affirmed. All concur.