Weisbrod v. Chicago & North-Western Railway Co.

18 Wis. 35

Opinion

By the Gourt,

Dixosr, C. J.

A feme covert may at the common law be an attorney of another to make livery to her hus band upon a feoffment; and a busband may make suck livery to bis wife. She may act as the agent or attorney of her husband, and as such, with his consent, bind him by her contract or other act; or she may act as the agent of another in a contract with her own husband. Story on Agency, § 7. If it is no violation of the common law principle of the unity of husband and wife, for the wife to act as the agent or attorney of her husband, the conclusion would seem irresistibly to follow, that it is no infringement of the same principle to allow the husband to act as the agent of the wife in cases where by law she is sui juris and capable of acting for herself. At common law, the separate existence of the wife was for many purposes merged in that of the husband, and she could do no act. Incapable of acting for herself, she could not appoint another to act in her stead. Her disability was general, and hence we find no cases in the books of agency in her behalf, either by her husband or another; certainly none by her husband, unless they be some of very recent date, and which have arisen since the enactment of statutes enlarging the rights of married women, and in which the capacity of the husband to act as the agent of his wife seems rather to have been assumed than decided. Thus it will be seen from the report, that it was assumed by the Court of Appeals in Hauptman v. Catlin, 20 N. Y., 247, that the husband might act as the agent of his wife in transactions respecting her separate estate. Her separate prop - erty was charged in an action at law, under the lien act, upon a contract made by her husband as her agent. The opinion in the case was written by the same learned judge, whose language in White v. Wager, 25 N. Y., 328, is quoted by counsel for the respondent to prove that the husband cannot act as such agent. Thus too it was assumed by this court in Hobby v. The Wisconsin Bank, 17 Wis., 167. But in neither case was the capacity of the husband to act, or the power of the wife to appoint him, directly raised or discussed. The question passed off subsilentio. But as we have already said, there seems on principle to be no reason to doubt tbe correctness of tbe doctrine thus assumed. Tbe disability of the wife has in many respects been removed by statute, and sbe is now capable of acting not only by berself but by an agent, with no express limitation upon ber power of appointment. If tbe doctrine of unity does not stand in tbe way, as it seems it cannot, tben we see nothing to prevent ber making ber husband ber agent, whenever sbe chooses to intrust him with tbe management of ber affairs. It is true that tbe Court of Appeals held in White v. Wager, that the statute does not enable tbe wife to convey land to ber husband. It is also true that tbe statute does not authorize ber to receive by gift, grant, &e., from ber husband any real or personal property; and yet it would hardly be contended that this limitation upon ber power to receive directly, abrogates tbe common law rule that sbe may act as tbe agent of ber husband in tbe sale and disposition of tbe same property to others. So too at tbe common law she could not take by grant or gift from ber husband; still sbe could convey to others as bis agent. Tbe distinction arises from tbe inherent difference between a mere power to convey and tbe conveyance itself The former is not regarded in tbe law as a contract, whilst tbe latter is. Hence a person incapable of contracting may be the donee of a power; and husband and wife, for tbe purpose of giving and receiving a power either to and from each other or third persons, are to be considered as if no relation of marriage existed between them. For these reasons we are of opinion that tbe power of attorney from Arabella Crary to ber husband, and tbe deed from ber to tbe plaintiff executed by ber husband as ber attorney in fact, should have been received in evidence.

Miller’s addition to tbe city of Oshkosh was surveyed and platted, and tbe plat acknowledged and recorded, in March, 1847. This plat showed a street on the east side thereof, forty feet wide. Conklin’s plat, known as tbe “Second Addition to Oshkosh,” was laid out and recorded in April, 1848. This plat, on tbe west side thereof, showed a street forty feet wide, which together with the forty feet on the east side of Miller’s addition constituted “ Broad Street,” so called. The two plats together indicated a continuous space dedicated to the public as a street from the east line of lots in Miller’s addition to the west line of lots in Conklin’s addition, with no intervening ground in the center reserved by the owners, or either of them, for. private use, and with nothing to show the real boundary or dividing line between them. It turns out that there was an intervening strip twenty-seven 26-100 feet in width,, supposed to have belonged to Miller, lying between the forty feet dedicated by him and that dedicated by Conklin, which was not delineated on either plat; so that “ Broad Street,” instead of being eighty feet wide, is found upon actual measurement to be one hundred seven 26-100 feet. Impi’ovements commenced upon the street in 1849, and from that time to this it has been held and used by the public as a highway to its present width. The city authorities caused a map of the city to be made in 1853, on which the street was delineated as it then existed and now exists. It was graded, and sidewalks constructed under their direction, in 1855. In August, 1849, the plaintiff, through divers mesne conveyances from Conklin, acquired title to a lot on the east side of the street, and improv- , ed and built upon it in the spring of 1850. Miller conveyed the lot directly opposite on the west side of the street to one Papendick in November, 1850. In June, 1851, Miller quit-claimed to the plaintiff the lot on the east side of the street, the title to which the plaintiff had already acquired through Conklin. Some question is made as to the effect of this quitclaim upon the rights of Miller to the strip of land in the center of the street, but as we are of opinion that Miller’s title to the center of the street on the east side, had already .gone to to the plaintiff, by virtue of the previous acts and conveyances of the original proprietors, a consideration of this question becomes unnecessary. We are of opinion that the plaintiff, by virtue of bis conveyance from Conklin, acquired title to the center of tbe street as it existed at the time Conklin conveyed. In other words, we think Miller, after what had occurred in the making and recording of the plats, is estopped from asserting title to the soil beyond the center opposite his lots, as against Conklin’s grantees or those holding under them, who purchased without actual notice of the true state of the title to the street. The well settled presumption in all such cases is, that the proprietor of the adjoining lot owns to the center of the street, and that the purchaser takes to the center by virtue of a conveyance of the lot. People, act upon this presumption ■ in buying and selling. The right of soil in the street is a valuable right to the owner of the adjacent lot, as the facts of this case abundantly show. It is true that this is but a presumption, and ordinarily liable to be defeated by proof that the right of soil is altogether in one or the other of the adjoining proprietors, or that one has a greater or less interest than the other; but in a case like this, where the proprietors lay out their lands into city lots, acknowledging and recording their plats with nothing upon them to indictae the original boundaries, thus in fact extinguishing such boundaries, and intending that the lots shall be bought and sold by the plats and the plats alone, or where the plats indicate the center of a street as the line of original division, we think the presumption should become conclusive in favor of grantees and purchasers from either proprietor without actual notice of the rights of the other. Plats, under the statute, are instruments of equal solemnity with deeds ; they are acknowledged and recorded in the same manner ; and purchasers are supposed to look only to them to ascertain the extent of the rights and titles of the owners of lots. With nothing upon the plats to indicate that one proprietor has a greater interest in the soil of the streets than the other, nothing to warn the purchaser, and with no monuments upon the land itself, the estoppel created by making, recording and permitting the sale of lots ac cording to tbe plats ought to be as strong, nay, even stronger, than if the proprietor of the whole or the greater part of the soil of the streets, being present, should, without notice to the purchaser or claim of title in himself, permit the adjoining proprietor to sell upon a representation that such purchaser would take title to the center of the street. The plats are a public recorded representation that the soil of the streets, subject to the public easement, belongs to the proprietors of the adjacent lots, and that the center of tbe street is the real line of division between them; and if by mistake or other cause the streets are in fact wider than the proprietors intended, the application of the rule must still be the same. By making and recording the plats, they make the center line of the street the line of division of lots as to purchasers without actual notice; and each proprietor authorizes the other, as to lots owned by that other, to sell as the owner of one half of the soil of the streets fronting upon such lots. If the original boundary lines appeared upon the plats, showing that one proprietor owned more of the soil of a street than the other, or if it were the case of a common highway in the country, the question presented would differ materially from that under consideration. In the former case the purchaser would be affected with notice from the plats themselves ; and in the latter he would probably be bound to ascertain the division lines regardless of the easement by highway. But upon the facts before us, we are inclined to think that the plaintiff took to the center of the street as it existed at the time of the conveyance from Conklin, and that the cause should have been submitted to the jury upon the principles above laid down.

The judgment is therefore reversed, and the cause remanded for further proceedings according to law.