
    Westlake v. The City of Youngstown
    
      Rights and liabilities of husband and wife — Act of March l% 1887 — Married woman could not dedicate land to public use, when — Act of April 3, 1861.
    
    1. Prior to the act of March 19, 1887, “to define the rights and liabilities of husband and wife” (84 O. L., 132) it was not competent for a married woman to dedicate to public use any lands which were a part of her general estate, except in the mode prescribed by statute.
    2. Lands of which a married woman became seized prior to the passage of the act of April 3, 1861, “concerning the rights and liabilities of married women” (58 O. L., 54), became in law subject to the possession of the husband, and until his death a right of action did not accrue to her to recover possession thereof from one who during her coverture had taken it without right.
    (Decided March 6, 1900.)
    Error to the Circuit Court of Mahoning County.
    On the 14th day of December, 1894, Mrs. Westlake commenced an action in the court of common pleas against the city of YoungstoAvn, her first cause of action being for the recovery of possession of certain .real estate described in her petition, and the second being for the recovery of the rents and profits thereof from January 1, 1884. The defendant answering admitted that it is a municipal corporation and that it had been in the possession of the premises described for more than tAventy-one years prior to the beginning of the action; and for a first defense it denies all the other allegations of the petition. For a second defense it alleged that more than twenty-one years before the suit was begun the plaintiff had dedicated the premises in question to the public use as a part of the streets and public grounds of the municipality and that it had accepted said dedication by using the grounds for the purposes aforesaid. It further alleged “that it has been in the open, notorious, exclusive, continuous and adverse possession, use and occupancy of said premises for more than twenty-one years prior to the commencement of this action.” By reply the plaintiff denied the alleged dedication. On the trial it was shown without contradiction that the plaintiff was married in 1850 and continued to be a married woman until December 10, 1883, when her husband, Covington- Westlake, died, and that in 1850 she began to reside upon the premises of which those in controversy are a part, title to said premises having before that time become vested in her by gift from her father. There was no evidence to sIioav that Mrs. Westlake had ever by the making and acknoAvledgement of any plat or by the execution of a deed or other instrument made a grant or statutory dedication of the premises to the public use claimed by the city. In support of its allegation of a dedication by her it relied upon evidence showing that about the year 1871, when the city took possession of the ground in controversy, the plaintiff’s husband, acting with representatiAes of the city, moved a fence upon the premises fixing street lines as they noAv are, and evidence tending to show that plaintiff Avith knowledge of AA-hat had been thus done acquiesced therein. The court thereupon instructed the jury with respect to the subject of dedication as follows:
    “To constitute a dedication on the part of the plaintiff it is essential that the plaintiff not only knowingly permitted the use of this property, by the defendant for public purposes, but that such permission was accompanied on her part with an intention that the public, the city of Youngstown, should use and occupy it for public purposes. If this intention is absent, no dedication would take place and you will not be justified in so. finding. If this intention exists, and you so find, and the same was accompanied by the fact that the property was, in pursuance of such permission of the plaintiff, taken posession of by tbe defendant and devoted to that use, it would constitute and be in law a dedication of her property tp the use designed by the plaintiff, and would prevent a recovery in this action by the plaintiff. This intention must be determined by you from all the facts, circumstances and evidence before you.” With respect to the limitation upon the plaintiff’s action the court instructed the jury as follows:
    If upon this question of dedication you find in favor of the defendant you need proceed no further, but should return your verdict for the defendant. If, however, you find that such dedication was not made, then you will proceed further to inquire and ascertain whether or not the city had been in the possession of this portion of lot No. 84 for a period of twenty-one years prior to the commencement of this action, which it is admitted was commenced on December 14th, 1894, as claimed by it. The defendant says it had been in the open, notorious, exclusive, continuous and adverse possession of the same during this time, This is a question of fact for your determination. If it had thus been in possession, then it is entitled to your verdict. If it had not thus been in possession, then the plaintiff is entitled to your verdict.
    Instructions to the contrary were requested by the plaintiff’s counsel and refused by the court. There was a verdict for the defendant. The plaintiff’s motion for a new trial Avas overruled and there was a judgment on the verdict. This judgment was affirmed by the circuit court.
    
      Norris & Wirt, and Murray & Koonce, for plaintiff in error.
    
      W. T. Gibson, City Solicitor, and Arrel, McVey & Robinson, for defendant in érror.
   Shatjck, C. J.

The questions presented are not affected by the act of March 19, 1887, to define the rights and liabilities of husband and wife ('84 O. L., 132), nor by the act of April 3, 1861, “concerning the rights and liabilities of married women” (58 O. L., 54). The act of the earlier date did provide that an estate of the character of this vested in a married woman should “be and remain her separate property and under her sole control,” but it did not assume to change the authority of the wife over, nor the rights of the husband in, any lands whose title had previously vested in her. In the fifth section it was expressly provided, “This act shall not affect any rights which may have become vested in any person at the taking effect thereof.” Since Mrs. Westlake’s title in these lands had previously vested in her, and by the marriage the husband’s rights had vested in him, they continued to be her general and not her separate property notwithstanding the act of 1861. The cases cited by counsel for defendant concern the separate property of the wife. They were influenced if not controlled by the act of March 23, 1866, “to amend sections 1 and 3 of an act entitled ‘an act concerning the rights and liabilities of married women,’ passed April 3, 1861,” (63 O. L., 47). That act amended section 1 of the act of 1861 by authorizing the wife during coverture to make contracts for labor and materials for improving, repairing and cultivating her separate property. It also amended section 3 of the act of 1861 by providing that the wife’s separate property should be liable to be taken for any judgment upon a contract which the first section authorized her to make. It did not amend section 5 of the act which provided that it should not affect interests already vested. The amending act gave to the wife a more extended control over her separate property but it did not expressly or by implication give a separate character to property which had theretofore been general. It follows that until the death of her husband in December, 1883, these premises were the general property of the plaintiff and not subject to her control under the provisions of these acts.

Since there was no evidence that a deed conveying these premises from the plaintiff to the defendant had been signed, sealed and acknowledged by her, as required by the statute defining the mode in which such a title might be conveyed by a married woman, the instruction given to the jury upon the subject of dedication assumed that the doctrine of estoppel might be so applied to her acts in pais as to divest her of title in her general property without compliance with the statute. It is not likely that this assumption would have been made if it had been observed that the case is not affected by any of the legislative enactments referred to. That this instruction was erroneous is made sufficiently apparent in Todd v. Pittsburg, Ft. Wayne & Chicago R. R. Co., 19 Ohio St., 514, where the true doctrine is stated find applied to a case differing in no essential respect from this. It was sought to so apply the rules of estoppel to a married woman’s act in pais as to defeat her action to recover possession of her lands after the death of her husband, but the court said: “During her coverture she had no power to bind herself by contract. No agreement of hers for the conveyance or encumbrance of her real estate, hoAvever solemnly entered into, could be enforced by a decree for specific performance. She could only dispose of or encumber it in the mode prescribed by the statute. And what she could not deprive herself of by direct and express contract with the defendant, we think it clear that she could not lose by the indirect method of an estoppel in pais, arising from facts such as those found in this case.”

There was no conflict in the evidence as to any fact material to the statutory limitations upon the plaintiff’s action. The action was brought more than twenty-one years after the defendant took possession of the ground in controversy, and more than ten years after the plaintiff. was relieved of the disability of coverture. If her cause of action accrued when the city took possession of the ground, the instruction given upon this subject was correct and the city was entitled to a verdict and judgment. If, however, her cause of action did not accrue until the death of her husband in 1883 it is quite clear that the instruction was erroneous, since the provision of the statute is that such an action “can only be brought within twenty-one years after the cause of such action shall have accrued.” The action is to recover possession of the property. Plainly no cause of action for that purpose accrued in Mrs. Westlake until she was legally entitled to the possession. In considering whether the right of possession was in her or in her husband while he lived, it should be borne in mind that it was her general property, and that her rights Avith respect to it were not enlarged, nor his diminished, by the legislation already referred to. It was in view of the previous dominion of the husband over the lands of his Avife during their joint lives that the act of 1861 was necessary, to the end that the wife might have control of them. That dominion included the right to occupy and lease and receive rents and profits. Whatever possessory right the wife had was domestic and not proprietary. The question is not affected by Williams v. Urmston, 35 Ohio St., 296, nor by Hershizer v. Florence, 39 Ohio St., 516. They were suits in equity to charge the estates of married women with their collateral obligations. In the former case the estate charged was admitted to be separate. In the latter, which was decided in 1883, it was said: “The rights of the husband which vested in him prior to the act of 1861, are not affected. He is still entitled jure uxoris to the possession, rents and profits during the joint lives of himself and wife. * * * The act of 1861 certainly did not convert his right of possession into the separate property of the wife, because it was a vested right and the act could not and did not purport to have that effect.” The case before us does not call for the application of the equitable principles recognized and applied to those cases. The plaintiff sued at law to recover possession of lands to which she was not entitled until the death of her husband in 1883.

Concerning other reasons urged by counsel for the defendant for the affirmance of the judgment it is sufficient to say that the ground of estoppel was not pleaded nor were all the essential elements of estoppel proved.

For the errors indicated, the judgments of the circuit and common pleas courts are

Reversed.

Minshall, J.,

dissenting. To make a dedication of land to a public use the execution of a deed is not necessary. It may be, and ordinarily is, presumed from the acts and acquiescence of the party, and the presumption arises from a much shorter period than is required to acquire lands by adverse possession. It has been presumed from an acquiescence of five years, and any period is sufficient Avhich in connection Avith the circumstances indicate an intention to donate. The husband and the wife might have united in a deed of dedication and she would have been bound; but as no deed is required, I fail to see why she might not have united with her husband in pais in making the dedication. The facts show that this was the case. The dedication was as much a benefit to her property as to the lands of others on the street; and it does not seem just or wise after such a great lapse of time to permit a recovery of the land from the city — a portion of one of its streets — on the ground that the wife had no power to make a dedication without joining in a deed with her husband.  