and hold, in his own right, all the dividends and profits he had received from Hoster on account of her interest in the brewery property and business, which he had not actually expended for her. We are also satisfied that the arrangement was made at the instance of the father, that he selected the counsel, who drew the papers and advised her of her rights and of what was being done, and that he fixed and settled the terms of the arrangement, to which she assented, while residing with him in his family as his child. Subsequently Hoster purchased the undivided fourth interest of Silvernagle in the brewery property and business for the sum of $9,000, and had offered or partly agreed to take this interest at $8,000, when, with the view of getting $9,000, as much as had been paid for Silvernagle's interest, believing that Hoster could be induced to pay his own niece as much as a stranger, Silvernagle, Herancourt, after consulting with his wife, who approved of it, induced his daughter to give him up his note to her for $1,650, and he gave up to her the deed from her to him for which the note had been executed, they supposing that that would reconvey the property to her. A negotiation was then made with Hoster for the sale of the property, which resulted in his purchasing it from her for $9,000, of which he paid $2,000 in cash, and gave his seven notes, of $1,000 each, to her for the residue, he being in ignorance of the conveyance of January 11, 1861, and supposing the legal title to be in her, she executed a deed to Hoster. This was on August 18, 1864. The defendant was present, and the $2,000 cash was paid to him, he giving his daughter an accountable receipt there for, specifying that he had received that sum of her and promising to repay it to her upon the first demand, with interest. This paper is also dated August 18, 1864. The matter then remained without anything further being done until the latter part of the year 1868, and the early part of the year 1869, the daughter still, and until her marriage on March 4, 1869, residing with her father as a member of his family. On October 24, 1868, the daughter and her own husband, Frederick Jaeger, became engaged to be married of which her father became advised on the 8th or 12th of December following. Shortly after this he advised her that he was old, that he desired to take a trip to Louisville, Ky., and wished to make a will, but that he could not do so without hers and his business growing out of the brewery matter was settled up. He proposed that she should have four of the Hoster notes, and the $2,000 he had collected, and the other three notes. She hesitated, claiming that she was then engaged to be married, and that her intended husband ought to know about it; but she finally signed the following: "This is to certify that the five thousand dollars and interest which my father, G. M. Herancourt, has for me received, and paid by L. Hoster, of Columbus, O., for the one-fourth interest of the brewery sold to him for nine thousand dollars; the last four notes, of one thousand dollars each, he has returned to me for collection, and for the above-named five thousand dollars and interest, I hereby release him for the same and give him a receipt in full up to this date. $4,000. 2 ct. Rev. stamp. 1 cancelled. Cincinnati, Jan. 18, 1869. Vol. I. Superior Court of Cincinnati. The daughter collected and has held the $4,000 due on the four $1,000 notes. The father has collected and holds the $5,000-$2,000 cash, and the amount of the first three of the seven $1,000 notes. He advised his daughter, after she came of age, of the reason for making the trust deed to Hoster, in 1843, that it was to keep the property from his creditors, so that he might be able to pay his debts and still keep on in business. As to the plaintiff's right to compel the defendant to account for the $15,514.87, received by him at divers times, between May, 1847, and September 10, 1860, we hold that the same must be denied by reason of lapse of time, the statute of limitations, for we are satisfied that the daughter, after arriving at full age and at least as early as January 11, 1861, knew all the facts, which, in law entitled her to such account, and that her father then and afterwards claimed to hold what was in his hands in his own right. Concede that he was her agent or trustee in the receipt of the money, yet the statute begins to run in favor of a trustee from the time he claims the trust fund or property in his own right-adversely— and his beneficiary is advised of such claim (2 Perry on Trusts, sec. 864). Concede that the release, at that time executed by the daughter to the father, was, in law, fraudulent, yet, as she knew she gave it and the facts. out of which it grew, the statute of limitations, prescribed by the Code, required her to bring suit to set aside within four years thereafter. Code, section 15: "Within four years: * * An action for relief on the ground of fraud. The cause of action in such case shall not be deemed to have accrued until the discovery of the fraud." This provision of our statute of limitations, we have held in Combs v. Watson, 2 Supreme Court Report, p. 525, is in effect the same as the following provisions of the New York Code: "Within six years an action for relief on the ground of fraud, in cases which heretofore were solely cognizable by the Court of Chancery; the cause of action in such cases not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud." The consideration of law, which determines such a release to be fraudulent, to-wit: That the party executing it was not emancipated from parental control, and that such control, and not the free will of the party, is to be deemed the cause of such execution, can not stop the running of the statute. Code, section 19: "If a person entitled to bring any action memtioned in this chapter, except for a penalty or forfeiture, be, at the time the cause of action accrued, within the age of twenty-one years, a married woman, insane or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this chapter, after such disability shall be removed." Being under parental influence by intendment of law will not prevent the running of the statute. Knowing that her father claimed the right to retain as his own all such dividends as were unexpended from January 11, 1861, until this suit was brought, April 23, 1869, a period of more than eight years, we feel justified in holding that the plaintiff is barred of her remedy as to this part of her case. Accounts, in such cases, after so great a lapse of time, are liable to operate hardly upon those obliged to render them. The sums of money received and times of such receipt are easily ascertained, and all not shown to have been expended according to the terms and requirements of the trust, must be accounted for with interest from the time of receipt. Yet, in this case, who can tell how much this daughter's condition may, by her father's use and employment of such monies, have been bettered-how much better she was clothed and housed and fed, how much less labor she was thereby required to perform, how much better her health was guarded, and her standing and associations in society advanced? All these considerations are important, but seldom, if ever, figure in a master's account taken in cases of this kind, we, therefore, after so long a lapse of time, leave this branch of the case as the parties themselves fixed it. In relation to the arrangement of January, 1869, it is claimed by the defendant that the original deed of trust was made to hinder and delay his creditors, the property being his; that there is a duty, as between grantor and grantee, to reconvey property so conveyed, and if done, courts will sustain it on the ground that it was but a performance of such duty. This principle we do not question; and it seems to apply to the claim for the $15,514.87; but, while by the law in force in 1843, this interest was the husband's, so far as his and his creditors' legal rights were concerned, he could, and perhaps ought, their rights being out of the way, havemade a settlement upon his wife for the amount of money he received by her, creditors never did question the transaction. Then, in 1861, when the daughter released him, under seal, from all liability for the dividend monies, he had theretofore received, an amount greater than is usually realized by men from investments of like sums to which they add neither labor nor attention, and enough to beggar most men, who, like him, had the care and expenses of a large family, he expressly acknowledging the estate to be hers, by agreeing to pay her for it what it cost-$1,650; and when it was sold by her to Hoster, he being present and assenting to the sale, he again admitted the property to be hers, by promising to pay her on demand, with interest, the $2,000 cash payment, which he received from her upon its payment by Hoster; and all the notes he allowed her to take payable to herself. This, surely, made a gift by him to her, if the property was not previously hers in equity. The gift, then, by her to him, and her release in 1869, were surely obtained without any consideration. By them he obtained $5,000, and interest for nothing. We think that this last transaction was fraudulent by intendment of law, upon well settled principles of equity. See Hoghton v. Hoghton, 15 Beav., 278; Long v. Mulford, 17 O. S., 485; Badger v. Badger, 2 Wal. 87. The presumption is that it was executed before emancipation from parental influence, which presumption the evidence does not rebut. The arrangement of 1869, must, therefore, be set aside, and the plaintiff, Louisa, be held entitled to recover the $2,000 and the proceeds of the three $1,000 notes, received by the defendant, with interest from the respective times of receiving each sum. The $400 paid by Hoster to the defendant on October 5, 1863, apparently upon his claim of right, the plaintiff, Louisa, is also entitled to recover with interest. It was money had and received by him for her use, and it was received within six years before suit was brought. Judgment accordingly. Rothe & Glidden and Mathews, Ramsey & Mathews, for plaintiffs. Stallo & Kittredge, for defendant. Vol. I. 11 Superior Court of Cincinnati. *HUSBAND AND WIFE. [Superior Court of Cincinnati, General Term, January, 1876.] †D. J. FALLIS V. JULIA B. KEYS. A married woman, having no separate estate, can not, by contract, charge separate estate thereafter to be acquired. O'CONNOR, J. This is a petition in error to reverse a judgment rendered at a special term. It appears by the petition at special term, that Sylvester Ruffner conveyed to Samuel B. Keys, husband of Julia B. Keys, a piece of real estate, situated in Cincinnati, and received from Samuel B. Keys certain promissory notes amounting to $15,836 secured by mortgage on the property for the balance of the purchase money. That afterward, on the 4th day of November, 1859, Samuel B. Keys and Julia, his wife, conveyed this property to D. J. Fallis, the plaintiff in error, who was also plaintiff below, who paid to Samuel B. Keys the full consideration therefor, $18,000, and received from Samuel B. Keys, and Julia, his wife, an obligation signed by said Keys, and Julia, his wife, wherein they bound themselves to pay the said promissory notes given by Samuel B. Keys to Sylvester Ruffner, as the same became due, and thus discharge the mortgage of Keys to Ruffner. The last of said notes became due in 1866, and their amount was all paid by Samuel B. Keys, except the sum of about $4,500, which in 1874, D. J. Fallis was obliged to pay to discharge the mortgage. The petition does not allege that at the time Julia B. Keys signed and delivered this obligation or contract in 1859, that she was possessed of any separate estate or of any estate whatever, but it does allege that in 1868 and in 1874, Julia Keys became seized of a certain described real estate by inheritance, and avers that by the making of said written agreement in 1859, she promised to charge her said estate acquired in 1868 and 1874, with the amount that Fallis might be compelled to pay on said notes. And the petition prays that the amount that may be found due to Fallis, may be charged upon the separate estate of said Julia B. Keys, as her husband has no property subject to execution. To this petition a demurrer was filed by Mrs. Keys, which demurrer was overruled. Therefore, an answer was filed for Mrs. Keys, setting up substantially the allegations of the petition, and denying what the petition did not charge, that she was possessed of any estate, separate or personal, at the time of signing the contract and denying that she intended thereby to charge her separate estate, and averring that she had no interest in the property conveyed to Fallis, and joined in the deed solely for the purpose of relinquishing her expectancy of dower. She further answers that her husband, Samuel B. Keys, up to the year 1873, was wholly solvent and fully able to pay said notes had they been presented, and that she had no reason to believe that said notes had not been paid at maturity. To this answer the plaintiff filed a demurrer which was overruled, and the plaintiff, not desiring to amend his petition or to reply, judgment was entered for the defendant. It is now claimed that the court below erred in overruling the demurrer to the answer, and in rendering judgment for the defendant. The demurrer to the answer reaches back to the petition, and makes it necessary to ascertain whether the petition sets out a cause of action. And the sole question raised by the petition or the answer is, whether a married woman having no separate estate, can, by any agreement she may enter into, charge separate estate which she may thereafter acquire. The estate now possessed by Mrs. Keys came to her by inheritance in 1868 and 1874, part of it nine years after she had signed the contract with her husband, and part of it fifteen years thereafter. Had she possessed this real estate in 1859, at the time she signed the contract, it could not have been charged for any breach of the contract, because it would have been her general property or estate, subject to the marital rights of her husband, and not her separate estate. But it is claimed by the counsel for the plaintiff in error, that by virtue of the act of 1861 (Ohio Laws, Vol. 58, p. 54), “Concerning the rights and liabilities of marThis decision was affirmed by the supreme court. See opinion, 35 O. S., 265. ried women," as amended in 1866 (Ohio Laws, Vol. 63, p. 47), both acts being passed before the real estate in question became vested in Julia Keys, the said real estate is in contemplation of law and equity and by force of the statutes separate estate, and may now be charged in equity for the liability incurred by the contract of 1859. Admitting that the estate is now separate estate, the question still remains whether a married woman having no separate estate, can by any promise or agreement so to do charge separate estate thereafter to be acquired. We think it is manifest that she can not. Equity as well as the common law regards a married woman as incapable of entering into a contract that will bind her estate. But equity to the extent of her separate estate, regards a married woman as a femme sole, with power to charge such estate where she expresses an intention to do so, or where such intention can be clearly implied. But she can not be regarded as a femme sole in the absence of a separate estate. In other words, a separate estate is necessary to her equitable existence or recognition. There being no separate estate, there can be no femme sole to make a promise to charge a separate estate thereafter to be acquired. So that the case made in the petition is that of a married woman promising to charge her separate estate when, if ever, she becomes an equitable femme sole. The promise is that of a married woman, and not of a femme sole as known in equity, and therefore can not be enforced. This conclusion is sustained by the cases of Logan v. Thrift and Wife, 20 Ohio St., 62; Clark v. Clark, 20 Ohio St., 128; and Phillips v. Graves, 20 Ohio St., 371; and Vaughn v. Vanderstegen, 2 Drewry, 165. The counsel for the plaintiff in error cited the case of Maxon v. Scott, 55 N. Y., 247, which holds that "the charge of a debt contracted by a married woman upon her separate estate, is not a specific lien, but is enforceable against all such property as she may have at the time satisfaction is demanded," and it is argued that as satisfaction in this case was not demantled until 1874, after Julia Keys acquired her estate, that it is liable to be charged, under the above decision to the payment of her contract. But it appears from the case cited that at the time the debt was contracted the married woman had separate estate and expressly agreed to charge the same, and that the separate estate involved in the suit was the proceeds of the separate estate she possessed at the time she made the contract. In equity, therefore, she was a femme sole. We have stated that a demurrer was filed to the petition in this case and that the same was overruled. This was an inadvertence as it should have been sustained. No exception was taken, however, but an answer was filed, to which there was also a demurrer. This demurrer was properly overruled and judgment entered for the defendant, which judgment is affirmed. Judgment affirmed. Dodds & Wilson, for plaintiff in error. |