Schindel v. Schindel

Lk Grand, C. J., delivered the opinion of this court. This action was brought by the appellee, to recover damages for a trespass alleged to have been committed by the appellant. The principal facts of the case, as developed both on the part of the plaintiff and defendant, may be thus stated: The plaintiff' and defendant are brothers, and they married sisters; defendant, before, at the time, and since, lived in the house of, and with, his wife’s mother. The plaintiff was married sometime in the month of May 1855, and went to house-keeping, and was separated from his wife within the same year.

His wife, sometime in the fall of the year, left the house of her husband, and went to that of her mother, declaring that she could not longer live with him, as he treated her badly. The mother sent for the husband, and both she and his brother, the defendant, sought to reconcile the parties, but did not succeed in doing so. The husband and wife, however, lived at the house of the mother of the wife for about five days, when the husband went to the house of his father, which was situate about one and a half miles from Hagerstown. During his absence, the defendant, accompanied by others, employed for the purpose, entered his house, in Hagerstown, and took from it certain household and other furniture, and conveyed the same to the house of the mother of his wife, where it remained up to the time of the trial.

Evidence was offered to show that this furniture, after its removal, was used in common by the family of the defendant, and that of Mrs. Emmerl, the mother, and by the wife of the plaintiff, and, also, that the removal ¹²⁰ was by the direction and in the presence of the wife. There was also evidence that some of the property was that of the wife, prior to her marriage. The plaintiff, during the progress of the trial, took exceptions to certain testimony allowed by the court to be adduced in behalf of the defendant. In the view we have of this case, it is not necessary we should advert to them, and the more particularly so, as the question which they present is raised by the prayers of the respective parties.

The instructions of the court must be construed in reference, exclusively, to the circumstances given in proof, and, therefore, it is n.o part of the duty of this court to consider the possible state of law as applicable to a state of facts not presented by the record. Whether or not a wife, while living and cohabiting with her husband, can commit a trespass on his property, or whether or not, while in such a condition, she can authorize a stranger to enter upon the premises of her husband and remove therefrom his property, are not questions now before us. The uncontested fact is, that at the time of the alleged trespass, the wife was living with her mother, apart and separate from her husband, without his consent, and contrary to his wish. And it is this state of case, and none other, with which we have to deal.

It may be affirmed as undeniable, that there is no case (except one in which necessaries have been procured) where.a wife is living separate from her husband, that she has been regarded as his agent. From wise and humane consideralions, when the wife is free from blame, and living separate from her husband, she is permitted to bind him for her necessaries. It is not necessary to specify the particular circumstances under which the contract of the wife will bind the husband, when she is living apart from him; it is sufficient to say, in every case, her authority is limited to the making of contracts for necessaries. There is no book otease to the contrary of this.

The acts, therefore, of the defendant cannot derive a justification from any license or authority conferred by the wife of the plaintiff, while she was living apart from him, JBut it is supposed that, inasmuch as there was proof in the ¹²¹ case that some of the property removed was that of the wife, prior lo her marriage with the plaintiff, our acts of Assembly, of 1841, ch. 161, 1842, ch. 293, and 1853, ch. 245, effected an enlargement of her power, and diminution of the right of custody of her husband, and, in fact, conferred upon her the authority to order the entry and removal complained of. We do not concur in this interpretation of the several acts of Assembly. With the soundness of the policy in which they originated, we have nothing to do; that, was matter for the consideration, peculiarly, of the legislative branch of the government. Although this legislation has materially abridged the rights and power of the husband, we cannot bring our minds to believe it was the purpose of the Legislature, if not absolutely to annul the nuptial tie, to utterly annihilate, in every particular, the control and right of custody of the husband.

So far as property is concerned, the object of those acts was to protect the property of the wife from the debts of the husband, and, during life, secure its enjoyment to the wife, free from the liabilities incurred by the husband; they confer on her no right to separate from her husband without cause, and to remove from his custody all her personal property. If she lias been misused, and, in the judgment of a court of competent jurisdiction, she deserve it, adequate protection and allowance will be afforded, not only out of property owned by her previous to marriage, but out of the estate of her husband. But, to sanction the doctrine that a wife, from mere caprice, may separate from her husband, and live apart from him in such manner as may suit her passions and inclinations, and to deprive him of all marital rights, is nothing short of allowing a wife, at pleasure, to annul the marriage contract; in fact, to restore her to her original condition, with but one exception, the privilege of forming another matrimonial alliance. Such a state of things would be revolting to the moral sense of the community, and jret the sympathizing spirit of some well-meaning persons induce them to contend for postulates, which, in their practical consequences, would realize the disruption of civilized society.

Of course we are not to be understood as