Davis v. Green

BELCHER, C. This is an action to recover the possession or value of six hundred and ten sacks of barley, which were levied upon and sold by the defendant, as constable, to satisfy a judgment against one W. E. Davis, the husband of plaintiff. The plaintiff claims that the said barley was her separate property, and as such was not liable for the debts of her husband. The defendant denies that the barley was the separate property of the plaintiff and alleges that it was the'community property of herself and husband.

The case was tried hy the court without a jury, and the findings and judgment were in favor of the defendant. From that [365]judgment and an order denying a new trial the plaintiff appeals.

The .only question presented is, Was the finding that the barley was community property justified by the evidence?

Mr. and Mrs. Davis were married in 1892, and thereafter, up to the time of the trial, continued to live together as husband and wife. At the time of the marriage Mrs. Davis had no property, real or personal. In 1894 Mr. Davis was insolvent, and in the fall of that year Mrs. Davis thought she would engage in some farming business in her own name. To that end she leased certain land and bought seed barley of a Mr. Scheffing' to plant upon it, for the price of which she gave him her promissory note. The seed barley was planted, and in June, 1895, the crop was harvested, the six hundred and ten sacks in controversy being a part of that crop.

Mrs. Davis, as a witness in her own behalf, testified: “Mr. Davis and Mr. Scheffing did the work in planting the crop under my direction. Mr. Davis bought the seed grain for me, under my direction, from Mr. Scheffing. I have not paid for it; I gave Mr. Scheffing my note for it in the amount of two hundred and fifty dollars; I signed and delivered the note to Mr. Scheffing in payment for the seed which I bought from him; the seed for which I gave my note is the same seed that was planted on the land referred to; the note has not yet been paid; Mr. Healy and Mr. Dyer harvested the crop. I agreed to pay them, but have not done so yet.....I planted the barley because Mr. Davis intended to go away, and he and I talked it over and we both thought I had better have it in my own name, and he told me to do just as I pleased about it; there was other barley harvested, besides this six hundred and ten sacks, which I sold; I took the funds and used them as my own money; there were about twelve hundred sacks raised in the entire crop, and one-fifth went for rent; there were somewhere near three hundred sacks which I disposed of by sale myself; I used the money realized from the barley sold; I used it in the house for living..... I had Mr. Davis help put this barley in; he and Mr. Scheffing did the work; my husband did the work in the field and I did the work in the house, .... all these acts which Mr. Davis performed I had bim do; I authorized him to act as my agent in all these matters.”