Upshaw v. Gibson

Campbell, J., delivered the opinion of-the court. The facts of this case are, that Mrs. Upshaw-being a married woman and an infant of eighteen years of age, her husband, in her presence, made a sale of her mules to one Humphreys, who had leased her plantation for two years, and that afterwards, while occupying said plantation and having possession of said mules, Humphreys executed a deed of trust on them for supplies. The plaintiff in replevin claimed the mules against Mrs. Upshaw by virtue of the deed of trust executed by Humphreys, and the question presented is, whether a married woman who is under twenty-one years of age can recover her personal property sold with her knowledge by her husband, without objection on her part, or any notification to the buyer at the time that she is the owner of the property. The court below held that Mrs. Upshaw was estopped from claiming the mules, and this is the error assigned. [344] If Mrs. Upshaw had been twenty-one years of age at the time ■ of the sale, her title would have passed to Humphreys by the sale made by her husband; for her silence would have amounted to consent, and it would have been as if she had sold the mules herself. It is competent for a married woman to sell her personal property as if she was unmarried. The restriction of the statute as to the mode of disposing of the property of a married woman relates alone to real estate. Harding v. Cobb, 47 Miss. 599. The difficulty in this case arises from the infancy of Mrs. Upshaw. It is certain that she could not have contracted a valid sale of the mules or other personal property, and that the rights of third persons had supervened makes no difference. Hill v. Anderson, 5 S. & M. 216 ; Cason v. Hubbard, 38 Miss. 35. Did her silent consent, deduced from her failure to proclaim her rights and object to the sale, confer any greater right on Humphreys than her contract would have done ? The authorities assert a distinction between rights based on contracts with infants and those resulting from the frauds of infants ; and in the effort of the courts to'prevent the privilege of infancy from being employed to do great wrong, they have sometimes applied the principle of estoppel to infants to prevent such result. While we may be willing, in a proper case, to follow the lead of these decisions, we have not been able to find a case like this, in which the infant feme covert has been held to have lost her property because of her silence in the presence of her husband, who was making a sale of her property. It is true that “ neither infants nor femes covert are privileged to practise deception or cheats upon other innocent persons,” that infants are liable for torts, and will, where j ustice requires, be precluded from profiting by their frauds. But there is a marked distinction between “ actual and positive fraud, committed by some unequivocal act,” and that inferred from mere silence or acquiescence. Barham v. Turbeville, 1 Swan, 437; Wilie v. Brooks, 45 Miss. 542. We think the Circuit Court erred in holding that Mrs. Upshaw lost her title to the property by her silence in the presence of her husband when he was negotiating the sale. It does not appear [345] that Humphreys was induced to buy the property, or that the person who trusted him on the faith of it was induced to do so, or was misled by any act of Mrs. Upshaw. No question of affirmance, after the sale, by Mrs. Upshaw arises, because she was under twenty-one years of age when this action was brought. Judgment reversed, and' cause remanded for new trial.