
    W. T. McCarty, Adm’r, etc., v. Martha E. Quimby.
    January Term, 1874.
    1. Evidence: Relevancy: Question of Value. Where the question of fact to be determined by jury is, what was the value of certain property in a particular county, and evidence has been introduced showing what the market value of said property was in said county, it is not error for the court to exclude evidence tending to show what the market value of said property would be in other counties.
    
      2. Husband and Wife: Acts of Ownership: Presumption. Where a wife exercises acts of ownership over personal property in this state, there is no presumption from such acts that the property belongs to her husband. On the contrary, if there is any presumption of ownership from such acts, it is that the property belongs to the wife.
    3. Replevin: Measure of Damages: Interest: Error. Where the court, in an action of replevin, where the plaintiff retained possession of the property, instructed the jury that if they found for the defendant they *must find what actual damage she had sustained by reason of the detention of the property, and also the actual value of the property, and also interest on said actual value at 7 per cent, from the time the property was taken, held, that that portion of the instruction which required the jury to find interest was unquestionably erroneous; but as the jury found the value and the interest separately, and as no judgment was rendered for the interest, the error was immaterial.
    
      [4. Married Women: Act of 1858. The married woman’s act of 1858 construed, with respect to personal property previously acquired by the wife.]
    Error from Chase district court.
    Eeplevin, brought by McCarty, as administrator, to recover the possession of twenty head of horses and twenty head of neat cattle, alleged to belong to the estate of William G. Quimby, deceased. The defendant, Martha E., widow of said William G. Quimby, claimed to own said property in her own right. The action was brought in the district court of Cowley county, and the property was there replevied, and delivered to the plaintiff. The place of trial was changed to Chase county, and was there tried at the September term, 1872, of the district court. The jury made special findings of fact, among them these: That the property in controversy was “the increase of proceeds of certain personal property given to the defendant after her marriage, and prior to the seventh of February, 1859;” that said property was “the sole and separate property of the defendant;” and that the said William G. Quimby “did not in his life-time exercise acts of ownership over said property.” The jury also returned a general verdict as follows: “We, the jury in the above-entitled cause, find that the right of possession of the property in controversy was, at the time of the commencement of this suit, in the defendant; that the value thereof was $1,850; and that interest on said sum, from the date of taking same, on the order of replevin in this suit, till date, is $164; and that the damages for the detention thereof by the plaintiff is $-.”
    The only entry in the record showing what judgment was given, or that any judg*ment was given, is a recital in the entry directly after the motion for a new trial, as follows: “Which motion [for a new trial] was overruled by the court, and duly excepted to at the time by the plaintiff. Thereupon the court rendered judgment against said plaintiff in accordance with said general verdict. To all of which the plaintiff at the time duly excepted.”
    
      Gillett & Sanders, for plaintiff in error.
    The plaintiff offered to prove by witness Doolittle that the value of just such stock as was testified to by defendant’s witnesses as being the stock in controversy, and of a certain value, was not, at the time the same was taken, of more than half the value in Chase and Lyon counties, which was only sixty miles, from where the property in dispute was replevied; to which defendant objected, and the objection was sustained. This we claim was error. Abell v. Munson, 18 Mich. 306; Marshall v. New York Cent. E. Co., 45 Barb. 502; Kugler v. Wiseman, 20 Ohio, 361; Carr v. Moore, 41 N. H. 131.
    ' The defendant was the wife of the deceased, and claimed the property in her own right, independent of her husband. Evidence was given of her exercising acts of ownership over it during the life of her husband. The exercising acts of ownership over personal property by a married woman living with her husband creates no presumption that such property is her sole and separate property as against the-husband, but such personal property is presumed to be the property of the husband. Farwell v. Paterson, 43 111. 52. ,
    Section 185 of the Code provides that in actions of replevin, where “the property has been delivered to the plaintiff, and the defendant-claims a return thereof, judgment for the defendant may be for are-turn of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same.” The court erred in instructing the jury to find the “value” of the-property, and interest on the same, and “damages.” We contend that the interest is a part of the damages for the detention, and should not be added to the value of the property.
    The evidence shows that defendant was married to the deceased in 1855, and during the same year came with him to Kansas, and lived, with him in Kansas until his death, in 1870. The jury find that the property in controversy is the property, or increase of proceeds of property, -which came to her between the time of her said marriage and the time at which the married woman’s act was passed. Prior to the passage of the married woman’s act, in 1859, the common law governing the relation of husband and wife was in force in the then territory of Kansas. By that law any and all personal property that the defendant acquired up to the passage of the married woman’s act became immediately the property of her husband, (Fitch- v. .Ayer, 2 Conn. 143; Mason v. Fuller, 36 Conn. 160; Bates v. Bank, 2 Ala. 463; Chouteau v. Douchouquette, 1 Mo. 669; Musser v. Gardner, 66 Pa. St. 242; Coombs v. Bead, 16 Gray, 271;) and his ownership of her personal property having vested before the passage of the married woman’s act, that act did not and could not take it away. Noble v. McFarland, 51 111. 226; Quigley v. Graham, 18 Ohio St. 42; Westervelt v. Gregg, 12 N. Y. 202; Neal v. Bookout, 30 Ga. 41;. Farrell v. Patterson, 43 111. 52; Schwartz v. Saunders, 46 111. 18.
    
      Edwin S. Waterbary, for defendant in error.
    Ample evidence having been given of the market value of the property at or near the place of conversion in Cowley county, it was not error to exclude the offered testimony of the market value generally in Chase and Lyon counties.
    The error of excess of interest was remitted by defendant. No “damages,” as such, is given by the verdict, and no injury resulted from the alleged error. The jury merely gave the result of their computation of interest on the value of the property. The court could include or reject it in the judgment.
    The stock in question is the profits and savings of property which defendant had before the married woman’s act took place. As-she continued to hold and use and make *profit with this stock • up to the time of her husband’s death, and as he never claimed it, or exercised control over it, it must be held to be hers absolutely.
   Valentine, J.

This was an action of replevin, brought by W. T. McCarty, administrator of the estate of W. G. Quimby, deceased, for the purpose of recovering certain personal property claimed by him to be a portion of the assets of said estate. The defendant was the widow of said Quimby, and claimed said property as a portion of her own separate estate which she owned and possessed during her husband’s life-time. The property was replevied in Cowley county. The plaintiff, by virtue of the writ, obtained possession of the property, and retained possession thereof up to the time of the trial. The trial was had in Chase county before a jury. Evidence was introduced showing what the market value of said property was in Cowley county. The plaintiff then offered evidence to show what the market value of the property was in the counties of Lyon and Chase. The defendant objected to this evidence, and the court below sustained the objection. There was no error in this ruling. The defendant had a right to claim, on a verdict in her favor, an alternative judgment for a return of the property, or for the value thereof at the place from which it was taken, in case a return could not be had. The question, therefore, to be determined by the jury was, what was the value of the property in Cowley county ? The market value of said property in Cowley county was evidently the best evidence of the value of said property in Cowley county; and it is a fundamental rule of evidence that the best evidence of which the ease in its nature is susceptible must be produced. Evidence of the market value of the property in Lyon and Chase counties was therefore rightfully excluded, as there was better evidence.

2. Where a wife exercises acts of ownership over personal property in this state, there is no presumption, from such acts, *that. the property belongs to her husband. On the contrary, if there is any presumption of ownership from such acts, it is that the-, property belongs to the wife.

3. The court below instructed the jury that if they found for the-defendant they must find what actual damage she has sustained by-reason of the detention of the property, and also the actual value of the property, and also interest on said actual value at 7 per cent, from the time the property was taken. That portion of the instruction which required the jury to find interest was unquestionably erroneous. But as the jury found the value and the interest separately, and as no judgment seems to have been rendered for the interest, the error was immaterial.

4. The fourth question discussed in plaintiff’s brief is hardly presented by the record. Neither the special verdict of the jury, nor the evidence introduced on the trial, shows that the defendant’s husband was ever, either in law or equity, the owner of said property, except possibly by a very remote inference, entirely too feeble to override the general verdict, or to override the findings of the special verdict, that the property was the sole and separate property of the defendant, and that the husband in his life-time did not even exercise acts of ownership over it. ■ But suppose, for the purposes of the argument, that, at the time the first married woman’s act was passed in Kansas, which was on February 11, 1858, (Laws 1858, p. 357,) and not in 1859, as seems to be supposed by the plaintiff, the defendant’s husband had, by virtue of the common law, the legal title to said property, although the defendant herself was in equity the rightful owner thereof, (and this is the most favorable supposition th#t can be made for the plaintiff,) and still this court would hold that, when said married woman’s act took effect, as between the defendant and her husband, the defendant became, not only the equitable owner of said property, but also the legal owner thereof.

The judgment of the court below is affirmed.

(All the justices concurring.)  