Tallman v. Jones

1. Irrelevant Instructions— Effect of. Where the trial court gives an instruction to the jury which is good law in the abstract, but which is irrelevant, and not applicable to the case under the evidence, the court does not commit such an error as will require a reversal of the judgment, unless the irrelevant instruction may have misled the jury, or unless it may in some way have prejudiced the rights of the plaintiff in error. 2. Married Women; Power to Make Purchases, and Carry on Trade. Any married woman, under $ 4 of the Married Woman’s Act, whether she previously has any separate estate of her own or not, may carry on any trade or business; and for the purposes of carrying on such trade or business may purchase on credit such property as is necessary to carry on such trade or business, and may hold the same as her sole and separate property. 3. Trespass ; Mortgaged Property; Damages. The mere fact that one person mortgages goods to another does not authorize any person except the mortgagee or some person claiming under him to take the property from the mortgagor; and if any such person other than the mortgagee or some person claiming under him does so take said property, he is liable for more than merely nominal damages.

Error from Bourbon District Court. Action by Emetine M. Jones to recover the value of a stock of goods seized and sold by Tollman as sheriff on an execution issued on a judgment against D. E. Cobb and Edward Jones, partners as “Cobb & Jones.” The goods were alleged to be worth $3,000. Cobb & Jones had kept a drjj-goods store in the town of Marmaton from 1864 to 1870, when they were sold out under execution by one of their creditors. Their stock of goods was bought at such sale by one Foster, who carried on business as a merchant in the same store-room formerly occupied by C. & J. until August 1871. Foster did not give personal attention to said business, but entrusted its management to said Edward Jones as his agent. In August, 1871, Foster sold his stock of goods to said Emetine M. Jones, who was the wife of said Edward Jones, and said Edward from that time, as agent and clerk for his wife, remained in the store and assisted in the management of the business. In February, 1872, Tollman as sheriff, took the goods in said store and sold them at sheriff’s sale, for $1,481.12. ' The goods were seized under an execution in favor of the administrator of L. Foreman, issued upon a judgment against Cobb & Jones, which was rendered by the district court of Bourbon county, in July, 1871. At the time the sheriff made the levy said Edward Jones was in charge of said store, conducting the-business thereof. It was claimed on the part of the sheriff, (representing the execution-creditor,) that the goods were in the possession of said Edward Jones, and that they belonged to him, and not to his wife. The action was against the sheriff and his sureties, on his official bond, and was tried at the December Term 1872 of the district court, (C. W. B., judge pro tern., presiding.) The jury found in favor of the plaintiff, and assessed her damages at $1,915.5,0. New trial refused, and judgment on the verdict. Tallman and his co-defendants bring the case here on error. 1. The district court, among other things, gave to the jury the following instruction: “The exclusive, peaceable possession of goods and chattels, under a claim of ownership, is prima facie evidence of ownership, and a person in such possession may maintain an action against a mere trespasser, and recover the full value of such goods,,” Now, the theory of defendant in error was,.that she purchased these goods, and Edward Jones continued in possession of the store as her clerk and salesman. She says she was in the store when the sheriff came in to levy, and that Mr. Jones had stepped out, while the sheriff, says she was not, and that Jones was in. Our claim is, that this sale from Foster was to Edward Jones, and that the name of his wife was introduced to cover up the goods from his creditors. This being the pivot of the dispute, what light does this instruction throw upon the case ? None. To give it any application to the case, you must assume that this possession of Jones in the store was not in fact and truth his own possession, but that of his wife, held for her as her agent, and that the sheriff, who represents the creditors of Jones, was a mere trespasser, without any claim or color of right. Here Jones had held possession of these goods from the 11th of August, 1871, until they were taken on execution. She claims the possession was hers." The creditors claim that it was not hers; the theory of the court was that this possession itself furnished prima facie proof that it was her possession. This is bad logic, because the right of possession here, and the ownership of the goods, must be in the same' person; and to assume the one, and argue from such assumption the existence of the other, is reasoning in a circle. Either this instruction is justly liable to this criticism, or else it simply asserts an abstract proposition of law that has no application to, and can perform no office in this case, except to mislead the jury. The exact converse of the doctrine of this instruction is true, namely, “ Possession by the husband is supposed to be in his own right, until the contrary be made to appear.” “In a contest with the husband’s creditors, proof of the wife’s interest must be shown by clear evidence.” (53 Penn. St., 400.) “Where the husband manages the store as salesman, the presumption is, that the goods belong to him; if the wife claims as her separate property against her husband’s creditors, she must satisfy the jury by clear and indisputable evidence that the goods in question were her own separate property.” (57 Penn. St., 428; 3 Green, (N. J.) 472; 25 Cal., 225; 38 Miss., 350; 37 Penn. St., 155, 247, 433.) 2. Instructions asked by the plaintiff in error, and refused, present this question: Where a married woman has no separate property whatever, can she and her husband upon their joint credit purchase a stock of goods in the wife’s name, to be paid for out of the business to be conducted by the husband, as her agent, when the wife has no separate estate? and are the goods thus purchased, and the profits and increase of the business thus carried on, exempt from the execution of the husband’s creditors? If this question can be answered in the affirmative, then the ruling of the court was correct, otherwise erroneous. We say in this case these goods belonged to the husband, and we had a right to have this hypothesis put to the jury. There are certain kinds of property owned by a married woman exempt from the control of her husband and his creditors, (ch. 62, p. 563, Gen. St-at.;) 1st, the property owned at the time of the marriage, and the issues and profits thereof, are so exempt; 2d, the earnings of any married woman from any trade or business carried on by herself, is so exempt. But with these exceptions the rights of a married woman are, in this state, governed by the common law. Can a man who has failed in business buy a stock of goods jointly with his wife, upon their joint credit, pay for them out of the profits and proceeds of the goods, devote his labor to carry on the business as agent for his wife, and by this device protect the goods from his creditors? If the wife had bought these goods upon credit given to her, or if the goods were paid for in the first place out of her separate property, and if the business had been increased by the labor of the husband, the law might be different; but the doctrine of the district court was, that where the wife and the husband purchased the goods in the first place upon their joint credit, and where the business was conducted and managed by the husband, the wife having no separate estate, and adding nothing to the stock by her labor or services, that still she might own the goods as against her husband’s creditors. We think this very question is decided in the case of Barringer v. Stiner, decided by the supreme court of Penn., 4 Am. Law Reg., 559. See also, 55 111., 352; 47 Mo., 350. 3. In this case the goods were mortgaged by the defendant in error and her husband, to L. P. Poster. If the goods in fact were purchased by her as she claimed, then under this mortgage “the legal title thereto” was in Foster, the mortgagee. (Gen. Stat., ch. 68, § 15.) If the “right of possession” and “the legal title” to this property was in Foster at this time, there being no stipulation in the mortgage to the contrary, then the only interest the defendant in error could have was a mere equity of redemption, and the court should have given the instructions asked for by plaintiffs in error upon this point. 4. This court will take judicial notice that M. V. Voss is judge of this district, and not C. W. Blair. 56 111., 304. 1. We submit there is no error shown by the record prejudicial to plaintiffs in error. The law undoubtedly is, in Kansas, that a married woman may acquire and hold property, free and clear of all liabilities of the husband. The question presented to, and decided by the jury was: Who was the owner of this stock of goods? They answered it by their verdict in favor of the defendant in error. The question of possession was a fact, submitted to the jury, and their verdict is conclusive. There was no intimation of any kind given by the court as to who had possession, either this defendant in error, or her husband, Edward Jones. 2. The instructions asked by plaintiff in error, whether good law or not, make no figure in this action. The evidence shows that the defendant in error was purchaser of the original stock of goods, and all subsequent purchases. And it also shows a want of any evidence of increase or profit, either by the skill and labor of the husband, or otherwise. "We submit that said instructions asked by plaintiffs in error are not law; but if they are, there was no evidence to warrant the court in submitting them to the jury. 3. The mortgage executed by defendant in error and Edward Jones to Foster embraced both real and personal property, and was executed by the husband and wife because required by Foster in making sale to defendant in error, and has no bearing in this case to relieve plaintiff in error from his liability. The jury having decided Mrs. E. M. Jones to have had the possession of the goods taken in execution, the sheriff finds no defense in showing title in Foster. 4. The court will not only take judicial notice that M. V. Voss is judge of this district, but will also conclude that C. W. Blair was the lawful judge pro tem., unless the contrary appear. The case cited by counsel for plaintiffs in error, (56 111., 304,) merely decides that under their practice a bill of exceptions must contain the style and term of court allowing the same.