Woodson & Trigg v. McClelland, 4 Mo. 495

Opinion of the court, delivered by Tompkins, Judge. At common law a married woman was not allowed to personal property independent of her husband; in equity she is allowed, through the medium of a trustee, to'enjoy propertyasfreeiy as a/eme sole. Giftsfroma husband to the wife may be supported as her separate property,if they benotprejudicial to creditors,even without the intervention of taustees. See 2 Kent’s Com. p. 162,3 and authorities there cited; see also, to same purpose, 1 Bacon, Baron and Feme, P. 482, Letter (

D) note (a). In this case there is a good and meritorious consideration, viz • money received in right of the wife from the estate of her father. The delivery,of the deed to Hickman for US6) js certainly sufficient. In the case of Bun Vs. Winthorp, a voluntary conveyance or settlement, though retained by the grantor in his possession until his , death, is good, see 1 Johnson’s ch. Rep, 329.

The act respecting slaves, (see 31 and 32 sec., page 745, Rev. code of 1825) declares all gifts of slaves void, unless possession accompany the gift, or unless it be by will duly proved and recorded, or by deed proved by two witnesses, or acknowledged by the donor and recorded in the district court where one of the parties lives, within eight months after the date of such deed. It is not pretended that the requisitions of the statute have been complied with in this case.

But there is a sufficient consideration here, viz: money received in the right of the wife, the donee by her husband, the donor, to distinguish this act from á pure'gift, where there is no consideration; and as between the husband and wife, we have no doubt, that the deed ought, to be held good and valid. It remains then, ,to be considered whether this court ought now to look into the evidence and decide whether the circuit court had before it evidence enough to support the decree.

By the act to regulate the practice in courts of chancery of the year 1835, it is provided that the trial of all issues and matters of fact; shall be by jury,, or if neither party require a jury, by the. court, and the allegations put in issue, shall be disposed of by general or special verdict, before a final decree shall be made, &c. See sec. 5 of 3rd art. p. 511. Where anissue of fact is tried by a jury, or the court ^cha^cery1”^’ cause, the only mod? of having *®dÍct üwestiga-couit above, is by mov-before^e^eree is pronounced.

A motion to dismiss of evidence, will1 not bring that question before court The.act to regulate the practice in the Supreme court in appeals &c., provides that no exception shall be en in an appeal or writ of error to any proceeding, ex-ce.pt such as shall have been expressly decided by such court — sée sec. 31, p. 522, Rev. code of 1825. Had the issues in this case been found by a jury, it is plain that the circut court would have been bound by the terms of the act, to decree on such finding; for by the 6 th sec. of -3rd

article of the act to regulate the practice in courts of chancery above- referred to, it is -provided the court may award a new trial of any issue upon good cause shewn, but not more than one new trial of the sanie issue shall be granted to any one party, and the jury having found the issues the party against whom the finding is, must not apply to the court to dismiss the bill for defect of evidence, the jury having found that there is no defect of evidence, but he must ask for a new trial of the issues.

A different course must not be pursued when the party has chosen to submit the issues to be tried by the-court; for if this were to be allowed, the statute regulating the practice in courts of chancery, might be evaded. The appellants ought then to have asked the circuit court to award a new trial of the issues,'and had that court refused to award such new trial, then there would have been such an express decision of the matter as would have authorized them to take an exception to the proceeding in the circuit court, under the 31st

section of the act to regulate the practice in the supreme court in appeals, &c.; see Rev. Co. of 1835, p. 522. The argument generally urged against this practice is, that it is useless to ask a judge of a court sitting as a jury to try issues to try them again, for he will find them oh a second trial as he found them at first. It is very true that the same-man, or even the same body of men, having found an issue wrong, is not so apt to correct that finding as anothef man or another body of men would be.

But it is not aii impossibility: every suitor ought before he chooses between the trial of an issue by a court, or by a jury, to weigh the consequences, and to be prepared to abide by them. The provisions of the statute must not be disregarded because he has found, or imagined he has found, his choice of the tribunal to be a bad one. We are then of opinion that the circuit cohrt committed no error in refusing to dismiss the bill for defect pf evidence.

Being then of opinion that there is equity in the bill, we believe that the claim of the complainant is good against the administrators, and the circuit court having found that there is no defect of assets, its decree is affirmed with costs..