Early v. Rolfe

Mr. Justice Gordon

delivered the opinion of the court,

_ It is certainly not necessary to cite authority in order to prove that since the Act of 1848, the husband cannot dispose of his wife’s choses in action without her consent, and it may be conceded that he cannot, of his own motion, receipt for her money or satisfy her judgments or mortgages. But it by no means follows that with her consent he may not do all these things and even more, appropriate her moneys and assets to his own use. So, it was held in Martha Mann’s Appeal, 14 Wright 375 , where a husband had, from time to time, received money from his wife’s debtor in her presence, that it was a proper inference not only that he had rightly received it, but where he had appropriated it to their common benefit, that it was so appropriated with her assent, and that she could not, after his death, recover it from his estate. Indeed, to hold otherwise would be measurably to deprive the married woman of the confidence and agency of her husband in the care and management of her separate property and in the disposition of her business affairs; a deprivation which, in most instances, would be to her very serious and in some cases disastrous. As a rule, married women, in consequence of the character of their education, as well as by reason of the circumstances by which they are ordinarily surrounded, have little of business knowledge or capacity, and if they cannot have the aid of their husbands to collect their rents, receive the interest upon their mortgages, judgments and other obligations without a power of attorney or other formal delegation, they are bad off indeed. The relation of husband and wife is one of the profoundest trust and confidence, and is so regarded by the community at large; hence, where the husband acts for the wife in matters relating to the disposition of her personal property, he is presumed to be so acting with her consent and as her agent. As a rule, people cannot be made to think that in dealing with a husband for his wife, he must be regarded as a stranger, and that he can do no business for her except under her express sanction. They presume, and so ought to presume, that the two are acting in harmony ; that he acts with her assent and for her welfare. It follows that where, in ordinary transactions, as in those above enumerated, the husband receives the moneys of the wife, and the circumstances are such that her assent may be fairly inferred, the jury may adopt the presumption that he was acting under her authority and hold her accordingly. We conclude then that the *61 court below erred in saying to the jury, in answer to the plaintiff’s third point, that there was no evidence of any previous authority having been conferred by Mrs. Wilmarth on her husband to receive payment in whole or in part of the mortgage in suit from the defendant, nor any evidence of a subsequent ratification of the payments so made. We think differently; yre think there was evidence from which such authority might properly be inferred. Wilmarth testifies that he received, on account of this mortgage, some six hundred dollars in three different payments of two hundred dollars each; and when asked whether he had authority from his wife so to do, he answered, “Yes, sir; for the use of the family.” It is true he afterwards qualifies this by saying : “ I had no special authority, only being her husband and getting it for her benefit as wrell as mine.” He also says that she knew of his receipt of these payments because he told her. But the above stated qualification has no effect in the way of altering the plain inference resulting from this testimony. Here is the husband properly doing business for the wife by receiving the interest on her mortgage, not once but thrice ; of this she has full knowledge; she knows that he is receiving this money and applying it to the relief of their joint necessities, and knowing all this she neither objects nor dissents; under such circumstances we do not think it would be a strained inference to presume her assent. It would indeed have been very bad faith in her did she intend to object to the business thus transacted, to allow her debtor to go on paying to her husband when her notice to the contrary would harm at once put a stop to it. As, however, the presumptions are in favor of good faith rather than bad, we may well suppose that Wilmarth had the assent of his wife to receive the money paid :to him by the defendant. Whether mere knowledge and want of dissent on part of the Avife Avould raise a presumption of power in the husband to receive and receipt for the corpus of his wife’s personal estate, as in this case, to receive the money in satisfaction of her mortgage, is something upon which we do not pass, and merely refer to the case of Bardsley’s Estate, 7 W. N. C. 48, where a similar question is fully discussed by Judge Penrose. HoAvever this may be, we repeat such knowledge and AYant of dissent are evidence from which a jury may infer a power to the husband'-from the wife to transact the ordinary business of her estate, such as the receipt of her rents, interest and the like.

Judgment reversed, and a venire facias de novo is awarded.