Tinkler v. Cox

Mr. Chief Justice Breese delivered the opinion of the Court: This was an action of replevin for a horse, originally commenced before a justice of the peace of Marion county, by Mary Cox, against John Tinkler, and taken by appeal by the defendant to the circuit court of that county. In that court the plaintiff recovered a judgment, to reverse which the defendant appeals. It is established by the testimony, that the plaintiff, in 1867, then and yet a married woman, purchased the horse with "her own means, in the State of Indiana, and removed with her husband, Alfred Cox, to this State, with the property in question. Her husband mortgaged the horse to the defendant. The mortgage was given to secure the payment of a note which defendant had signed as security for Cox. Defendant claimed that in January, 1872, in consideration that he paid this note, together with the note he himself executed to Cox for fifty dollars, the absolute title to the horse should be in him, and Cox thereafter brought the horse to defendant’s house and delivered it to him. It was proved by several other witnesses, that Cox repeatedly said, he had sold the horse to defendant. The claim of the plaintiff, Mrs. Cox, is based entirely upon the ground that this horse was her separate property, free from the control of her husband. There is much evidence tending to show this disposal of the horse was made by her husband with her full assent and approbation. But be that as it may, the proof is, Mrs. Cox purchased the horse in the State of Indiana, but it is not proved, as it might have been if the law was so established in that State, that by the laws of that State property so purchased became the separate property of the wife, free from the control of her husband. In the absence of such proof, we must presume that the common law was in force in 1867, at the time Mrs. Cox purchased the horse, and, so presuming, by that law the title to the property became vested absolutely in her husband ; being so vested in the husband, by no act of our legislature could his title be divested. Dubois v. Jackson, 49 Ill. 49, is in point. The judgment is reversed and the cause remanded. Judgment reversed.