Rodgers v. Bank of Pike County

Napton, J. 1- means?Emamed i87“constru°ed.of There are two questions presented by this record. 1st. The defendant claims that the money, which was ^® proceeds of the sale of the wife’s land, was reduced to the husband’s possession, and, therefore, that the bank who received the money from the husband, as his money, had a right so to regard it. That this was the common law is conceded, but it is contended that the act of 1875 (Sess. Acts p. 61) taken in connection with the 14th section of the statute in relation to married women, (2 Wag. Stat. 935) has changed the law in this respect; and this is my opinion, and that of a majority of the court. The provision of the act of 1875, is as follows : “ Any 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, inheritance, or by purchase with her separate [563] money, or means, or be due as wages of her separate labor, or have grown out of any violation of her personal rights, shall together with all income, increase and profits 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 act 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 property, unless by the terms of said assent, in writing, full authority shall have been given by the wife to the husband to sell, encumber, or otherwise dispose of the same for his own use and benefit.” Although the language of this section does not literally apply to this case, the exchange or sale of the wife’s land, and its conversion into money, makes the money which results from the sale, if not literally a purchase by her means, certainly an acquisition of personal property by her means. The word means is a very broad one, and the spirit and intent of the act is to embrace such a case. To put an end to all investigations, the law plainly requires the assent of the wife to be in writing, and there was no such assent proved in this case. 2. wife’s katifiba™b’sFconÍ teaot. 2. The second defense presents more difficulty. It is conceded that the wife can make her husband her agent, but agency must be clearly established. Si® declarations will, of course, not be evidenee of his agency. The question then for the court, raised by the instructions, was whether there was any evidence of such agency. If there was any legitimate proof of such agency the instructions should have been given. The only evidence of such agency offered in the testimony was that of the wife. She states that being informed by her husband that he had deposited the money to her credit in the bank, and after finding the certificate [564] of deposit in her husband’s pocket, she went to the bank and asked the cashier how much money she had on deposit, and was informed that there was $300. To this she made no reply, and the statement of the cashier is to the same effect. She was aware that the proceeds of her land was $400, and was, therefore, advised that $100 of her money had been used by her husband. There is no doubt that the evidence to establish a ratification by the wife of a contract made by the husband, as her agent, must be of an unmistakable character. And it is remarked by Judge Cole, in McClaren v. Hall, (26 Iowa 305) that it is necessary, in order to bind her, that the husband should claim to act as her agent. In this case it appears, from the evidence of the cashier, that the husband did not claim to act as agent of his wife, but deposited the monéy as his own, and never changed the form of the deposit until he was advised that his creditors might levy on it if deposited in his own name. The opinions of this court recognize the principle asserted in McClaren v. Hall, and reiterated in Bishop’s Treatise on the Law of Married Women, vol. 2, § 395-6-7. Eystra v. Capelle, 61 Mo. 578. It is the obvious intent of our recent legislation, to restrict within the narrowest limits, the power of a husband over his wife’s personalty. Such legislation may lead to hardships, as it does apparently in the present case; but the judiciary have no concern with the policy or impolicy of legislative enactments. The legislature have required the written assent of the’wife, to the husband’s reduction of her personal property to his possession. They have not prohibited her from making him her agent, nor altered the common law in that respect. But the spirit of legislative enactments corresponds with such judicial decisions as require very clear and unequivocal proofs of such agency. As was well said by Judge Cole, in McClaren v. Hall, “ This is for the reason, that in the general experience of the past, if not in the philosophy of the present, the wife is under the control- of, and subordinate to the husband, [565] and neither good law nor sound reason will require the wife to destroy the peace of her family, and endanger the marriage relation by open repudiation or hostile conduct towards her husband, in order to save her property from liability for his unauthorized contracts.” There was evidently some want of care on both sides in this case. The cashier knew very well that Rodgers, the husband, deposited this money as his own, and not as agent for his wife, and he supposed it was only placed in his wife’s name to avoid executions against the husband. ITe therefore made no inquiries when Mrs. Rodgers called. She knew that the money was hers, and that her husband had received no authority from her to use it; but although apprised by the cashier that $100 was gone, she was silent. Whether this silence on her part is to be construed as some evidence of a recognition of his agency in the management of this fund, is really the only question in the case on its merits. 3.husband and wipe: practice: jeofails. The judgment must be reversed at all events, because of the non-joinder of the husband; 2 Wag..Stat., p. 1001, s 8. The Statute of Jeofails (2 Wag. Stat. ' , pip. 10d6, § 19), does not reach a case of this sort, where the defense was made by answer on the trial and called to the attention of the court by an instruction. Judgment reversed and case remanded. All concur except Hough, Judge, who concurs in the result. Reversed.