
    RECOVERY BY WIFE’S ADMINISTRATOR FROM THE ESTATE OF HER HUSBAND.
    Common Pleas Court of Montgomery County.
    T. A. Routson, Administrator, v. Martin W. Jackson et al.
    
    Decided, July 19, 1918.
    
      Money Loaned by Wife to her Husband from her Separate Estate— Intention to Create the Relation of Debtor and Greditor Shown— Debt to Become Due at the Death of the Husband — Interest Chargable from that Date only — Case One in Equity notioithstanding Prayer of the Petition.
    
    1. Money given by a wife to her husband from her separate estate in 1867, 1868 and 1872, the circumstances indicating an intention to create the relation of debtor and creditor, is recoverable by her or by her estate under the legislation of that period;
    2. Where a petition filed states a case which entitles the plaintiff to an equitable remedy but furnishes no basis for legal relief, the court may disregard the prayer if it be for a judgment at law, and grant the appropriate equitable remedy.
    
      H. E. and R. A. Kerr, J. A. Kerr, Lenz, Sigler, & Denlinger, and Carr, Allaman, Retter & Murr, for Plaintiffs.
    
      W. A. Haines and Mattern & Brumbaugh, contra.
    
      
       Affirmed by the Court of Appeals, April 30th, 1919.
    
   Snediker, J.

This action is brought by the plaintiff against the defendants for the recovery of $3,20)0, with interest on $1,500 thereof at six per cent, from March 23, 1867, to May 1, 1872, with interest on $700 thereof at six per cent, from February 14, 1868, to May 1, 1872, and with interest on $1,000 thereof at six per cent, from Jan. 6, 1872, to May 1, 1872, and for six per cent, interest with' annual rests on the total amount found due on May 1, 1912 — ■ from that date to date of payment.

The case was begun to a jury and after the taking of some of the testimony, by the agreement of all parties, in order that the case might be more fully and carefully considered before determination, the jury was excused and the case proceeded as if originally to the court. It is now before us on the pleadings and the evidence for a finding on the issues involved.

Plaintiff’s claim, as stated in his petition, arises from four causes of action which, in short, are as follows:

First. He claims that there is due and owing to him, as the administrator of the estate of Catherine Jackson, from the estate of Jesse L. Jackson the sum of $1,50Q with interest at six per cent, from the 23rd day of March, 1867 for money had and received on said date by said Jackson for the use and benefit of Catherine Jackson, his wife, and which Jesse L. Jackson orally promised and agreed to pay to Catherine Jackson with interest upon his death.

Second: He claims that there is due and owing to his as such administrator from the estate of Jesse L. Jackson, deceased, the sum of $700 with interest at six per cent, from the 14th day of February, 1868, for money had and received on said date by the said Jesse L. Jackson for the use and benefit of Catherine Jackson, his wife, which Jesse L. Jackson Orally promised and agreed to pay to his wife with interest upon his death.

Third: He says there is due and owing to him as such administrator from the estate of Jesse L. Jackson, deceased, the sum of $1,000 with interest at six per cent from the 19th. day of January, 1872, for money had and received for the use and benefit of Catherine Jackson, his wife, and which Jesse L. Jackson orally promised and agreed to pay to Catherine Jackson with interest upon his death.

Fourth: He says that on or about April —, 1872, after the death of his wife, Jesse L. Jackson promised and agreed to and with Frederick Yount, who was the grandfather of Catherine Jackson and who had advanced the money referred to in the first, second and third causes of action of said petition, that he would pay the moneys to the estate of Catherine Jackson at his death with a greater rate of interest than a guardian would be required to pay. This statement was made, as claimed in the fourth cause of action, at a conference had with Frederick Yount where he expressed an intention to have a guardian appointed for the children of Jesse L. Jackson who eventually would become interested in the moneys borrowed by Jackson from his wife. At the time, as claimed by the plaintiff, guardians using their ward’s money paid six per cent, interest with annual rests.

On account of the foregoing, plaintiff asks judgment as herein-before recited. With respect to the several causes of action set up in plaintiff’s petition, the defendants enter a general denial.

It appears from the evidence that Jesse Jackson, the defendants’ decedent, was married to a granddaughter of Frederick Yount and after such marriage resided on a farm along the Still-water river, which farm he afterwards traded for one along the Miami river; and this second farm was subsequently part of a deal for a farm bought by him in Darke county. At the time of each of the several purchases and trades made by Jesse L. Jackson it became necessary for him to have an additional amount of money, and on these occasions he with his wife visited Frederick Yount, Catherine Jackson’s grandfather, and she secured, first,-$1,500; second, $700; and third, $1,00)0; at or about the several times claimed in the plaintiff’s petition, and turned this money over to her husband to be used in these transactions, and it was so used.

The testimony shows that Jackson’s wife died, and that subsequent to hex death a number of the relatives interested in the children, among whom was Frederick Yount, their greatgrandfather, visited Jackson in Darke county upon the farm where he then was and made inquiry of him in reference to the money which had so been turned over to him by his wife. At that time, as testified to by Mary Smith, his attitude was:

‘ ‘ Q. Was you ever present at any conversation with Mr. Jesse L. Jackson in which he referred to these sumes that he owed to his wife? A. Yes, sir; we went to see him after his wife died and he agreed to pay this to her and her heirs and at his death it was to go to the children.” (Record, p. 5.)
‘! Q. What was said there in relation to it in your presence by Mr. Jesse Jackson, relative to the money that he had borrowed from his wife ? A. He wanted to keep it until his death, and he, said he would give the children a greater interest than if they had guardians, and grandpap then wanted to have guardians for the children.
Q. What did he say? A. He said he would give them a greater interest than if they had guardians for the children.” (Record, p. 7.)

Afterwards the following conversation was had between Yount and Jackson, as shown by the testimony of Mary Smith:

"Q. Did you hear any other conversation at which Mr. Jackson was-present where this money was discussed after you were up there at his house ? A. Why, yes. He came down to grand-pap Yount’s and they talked it over and they agreed to let it stand.
Q. And what did Mr. Jackson say at Mr. Yount’s house? A. He asked grandpa to not make any trouble, let him have the money, and grandpa agreed that if he would pay it after his death back to these children he would leave him have it.” (Recond, p. 10).
££Q: Where and when was that? A. Well, it wasn’t only a few days after that, after we had been down there after sTie died, .in a couple of weeks, in a few days he came down to grandpap, and grandpap agreed to let things stand that way.” (Record, p. 15.)

As appears from the testimony of Eli Yount, the following occurred on the visit to Darke county:

‘ ‘ Q. What took place, — what you went there for and what he said ? A. Which ? — About when we wanted to appoint a guardian.
Q. Yes. A. We wanted to appoint him guardian for those children,' — three minor children. He said, £No; I have got this money invested,’ and he said, £I expect to use it my lifetime and then,’ he said, £I will pay them my regular interest at my death and that would be more money to the children than to have a guardian.’ ” (Record, p. 25.)
££Q. What statement did Mr. Jackson make to you people as to any arrangement he had made with his wife relative to this property? A. He had made arrangements to have that until his death.” (Record, pp. 25-26).

From the testimony of Cornelius 0 ’Neil, who was a young man at the time employed by Jackson on the farm, we not only have information about the receipt of the money by Mrs. Jackson on two occasions and that it subsequently came into the hands of Jesse Jackson, but there is the further statement that, in a conversation had by O’Neil with Jackson, Jackson said that he ■had received the money from his wife, that he was to have it as long as he lived to invest, and that it was to be paid back at his death. (Record, p. 39.)

There is an admission in the answer that, as claimed by the plaintiff, a sworn statement of the amount due was presented to the defendants, that a request for allowance was made thereon, and that the defendants refused and rejected the claim.

These being the facts, what is the law of the case The common law relation of husband and wife had been, prior to 1867, modified in this state by an enlargement of the rights of the wife. The last enactment relating to a wife’s rights as to personal property, previous to the first of these transactions, was passed by the Legislature April 3, 1861, by the second section of which:

“Any personal property, including rights in action belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest, or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor, or have grown out of any violation of her personal rights, shall, together with all income, increase and profits thereof, be and remain her separate property and under her sole control, and shall not be liable to be taken by any process of law. for the debts of her husband. This act shall not affect the title of any husband to any personal property reduced into his possession with the assent of his wife: * * * ’ ’

Except the amendment to the act of April 3, 1861, which was passed March 23, 1866, and only related to the estate or interest of a wife, legal or equitable, in real property, there was nothing passed by the Legislature which affects our case until March 30, 1871. The amendment then passed would have a bearing upon plaintiff’s third cause of action. It reads (Section 2):

“Any personal property, including rights in action belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest, or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor, or have grown out of any violation of her personal rights, shall, together with all income, increase and profits thereof, be and remain her separate property and under her sole control, and shall not be liable to be taken by any process of law for the debts of her husband. This act shall not affect the title of any husband to any personal property reduced into his possession with the express assent of his wife; provided, that said per-v sonal property shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care or protection thereof, but the same shall remain her separate property, unless by the terms of said assent, full authority shall have been given by the wife to the husband to sell, encumber or otherwise dispose of the same for his own use and benefit. ’ ’

In applying these several acts to the facts in this case we, of course, must keep in mind the testimony as heretofore quoted, which shows that the money, which Mrs. Jackson received from her grandfather, she loaned to her husband with the agreement and understanding that he was to invest it until his death; and that thereafter it was to be paid to her or her estate. Under such conditions the husband may not be said to have reduced either the first, second or third amounts delivered to him by his wife to possession. We regard the evidence as both positive and clear and consistent with their relation that it was his intention at the time not to receive the money as her husband but as a debtor. The agreement on his part to repay indicates his relation to his wife in the ease. This money, when received from her grandfather, may be said, under the several enactments referred to, to be her separate estate.

“If a wife loans money to her husband out of her separate estate, she has the same right to expect and receive security and repayment and preference in payment, out of his estate, as any other creditor has; although the law will not,.from the mere delivery by her of her money to him, or from the permitted receipt by im of her separate income, imply a promise by him to repay her, but will require more, either in express promise or circumstances, to prove that in such matter the husband and wife dealt with each other as debtor and creditor.” 7 R. I. (4 Ames), p. 481.

The requirements-here specified are fully met by the proof.

“By the act concerning the rights of married women, passed April 3, 1861, as amended March 23, 1866, the general estate, as well as the separate estate, of a married woman, belonging to her at her marriage, and all her estate, legal, and equitable, which may come to her during coverture, by conveyance, gift, devise, or inheritance, or by purchase with her separate means or money, together with the rents and' issues thereof, becomes her separate property and under her control, free from the marital rights of the husband at common law. over the same. ” 30 O. S., p. 147.
“It may be said that a married woman can not adequately enjoy her separate property, unless she can make contracts in regard to it. This is true, and hence her power to make contracts, so far as may be necessary for the use and enjoyment of her property, must be regarded as resulting by implication from the statute.” 50 Ill., p. 473.
“Money borrowed by the husband from the wife, and secured to her by the note of the husband, given to her at the time of receiving the money, will, after her death, and as between the husband and her estate, be regarded as an equitable claim against the husband; * * 24 O. S., p. 11.
“A married women, having a separate estate, may give or lend the income of it, if at her disposal, to her husband, as to any other person.” 3 Wharton, p. 48.

In the case of Pillow v. Sentelle, 49 Ark. 430, the Supreme Court of Arkansas say, p. 438:

“At common law contracts between husband and wife are void. But in equity a promise by the husband’ to his wife to repay her a loan bona fide made by her to him out of her own separate estate, upon his promise to repay, is obligatory and can be enforced. ” 1 1

In line with the foregoing, see: 10 Peters, 592; 108 U. S. 73; 2 Story Eq. Jur., secs. 1372-3; 51 N. Y., 395; 84 Ill., 144; 77 P. St., 482; 42 Md., 154; 38 Md., 183; 31 Wis., 82; 3 Bush., 155; 70 Ind., 135; 2 Lea., 661; 1 Grant, 468; 40 Pa. St., 90; 45 Pa. St., 530; 24 N. Y., 623, 44 N. Y., 298; 1 Lowell, 543.

If the money so loaned by Mrs. Jackson to her husband was before that time her separate estate, and if, as we have found, there was' not a reduction to possession of the same by Jackson but if, on the contrary as we have stated,.a condition of debtor and creditor arose as between the -husband and wife on account of the loans so made, and if she may recover for and on account of the debt so created, are we entitled in this action to afford her representative relief?

As -will be observed from the petition, the action was begun as one at law. It does not appear to us that under the act of 1861, nor under the act of 1871, there was any such change in the relation of husband and wife as gave her the authority to sue at law for recovery. Her remedy, as wé view it, remained the same, — one in equity. But whether at this time the representative of Mrs. Jackson is bound to resort to a court of equity or a court of law can make no difference under the reform method of procedure now existing in this state. We are not bound to observe the prayer of the petition and be controlled thereby in reference to the character of case which it seems to indicate the plaintiff intends to present. The allegations of this petition certainly entitle this plaintiff to at least an equitable remedy.

“As a logical consequence of the doctrines that a married woman may sue in equity for the protection of her separate estate, it follows that where distinctions between actions at law and suits in equity and the forms of all such actions and suits have been abolished, one effect has been to give married women a right to sue their husbands on contract as they would any other person.” 5 L. R. A. (n.s.), p. 612.
“When the complaint or petition alleges a case which entitles the plaintiff to equitable relief, but no basis for legal relief is stated, and prays a common-law judgment, but no equitable remedy of any kind, if the case as alleged is proved upon the trial the equitable remedy which is appropriate to it should be awarded. Disregarding the prayer or demand of judgment, the court will rely upon the facts alleged and proved as the basis of its remedial action.” Pomeroy’s Remedies and Remedial Rights, Section 83, p. 103.

The case now being in the hands of the court, the application of this rule is not difficult.

With respect to the interest claimed in the petition we can not on the evidence agree with the plaintiff. We have searched the record and been unable to find that there was an agreement on the part of Jackson to pay his wife interest on the loan from her to him, and we can very well see how this might reasonably be so. The money - was invested in the farm or farms upon which the family lived and from which they all derived benefit. Both the common law of the state and the statutory law of Ohio as it existed in 1869 are applicable to this question. Let us remember that the debt of Jackson to his wife was payable at his death.

By Section 3 of the act of 1869 it was provided:

‘ ‘ In all cases other than those provided for in the first and second sections of this act, when money shall become due and payable upon any bond, bill, note or other instrument of writing, bearing date after' the- passage of this act, upon any book account or settlement hereafter made between parties upon all verbal contracts hereafter entered into, and upon all judgments, decrees and orders of any judicial tribunal for the payment of money arising out of any contract made or other transaction occurring after the passage of this act, the creditor or creditors shall 'be entitled to interest at the rate of six per cent, per annum, and no more.”

It is the common law that where an obligation to pay money at a certain time is silent as to interest, it will commence only from the time of the debtor’s being put in default. Upon the death of Jackson (October 15, 1916) the amount he had so borrowed from his wife became due, and from the date of his death there should be a computation of six per cent, interest on the entire amount.

As the agreement claimed to have been made by Jackson with Grandfather Yount to the effect that he would pay interest greater than that paid by the guardian, we find this to be wholly without consideration and made with a person not in interest and not available of as a right by these plaintiffs; so that we regard it as entirely outside of this ease.

It is clear, of course, that if the debt here sued upon became due and payable-at the death of Jackson, then we are not interested in the question as to whether or not the statute of limitations is applicable under the sections of the revised statutes heretofore quoted, for the reason that the limitation would not run except from the date when the debt became due. The answer, being simply a general denial, does not raise the question of the statute of limitations.

Our finding is for the plaintiff in the amount indicated in the foregoing opinion.  