Thorn v. Anderson , 7 Idaho 421 ( 1900 )

SULLIVAN, J.

This action was brought by the respondent against the appellants to recover the sum of $2,500, the alleged value of forty-eight head of cattle taken by the defendant Anderson, as sheriff, under a writ of attachment, and thereafter sold under execution issued out of the district court of Cassia county against the property of A. S. Thorn, the husband of respondent. The answer put in issue the material allegations of the complaint. The cause was tried by the court with a jury, and a verdict was rendered in favor of the respondent for the sum of $832.50 damages, and judgment was duly entered in favor of respondent for that sum and costs of suit. A motion for a new trial was denied, and this appeal is from the judgment and an order denying the motion for a new trial.

It appears from the record before us that in the year 1888 George Rutherford, an uncle of respondent, made her a birthday present of ten cows and ten calves, which were taken to the ranch of her husband, A. S. Thorn, and branded with his brand and eared for by him, and the increase branded by him, and some of them disposed of by him up to the time of the levy of the execution aforesaid. It is conceded that all of the cattle levied upon and sold as aforesaid, except five head thereof, were the increase of said ten cows and calves. Counsel for appellants do not seriously contend that said original ten cows and ten calves were not the separate property of Mrs. Thorn, the respondent; but they contend that the increase of the separate property of the wife is community property, under the provisions of section 2497 of the Revised Statutes, and hence liable for or subject to the payment of the husband’s debts. Said section is as follows: “All other property acquired after marriage by either husband or wife, including the rents and profits of the separate property of the husband or wife, is community property; unless by the instrument by which any such property is acquired by the wife it is provided that the rents and profits thereof be applied to her sole and separate use; in which case the management and disposal of such rents and profits belong to the wife and they are not liable for the debts of the husband.” Counsel for appellants, as well as counsel for respondent, overlooked section 4479 of the Eevised Statutes, which provides as follows: “All real and personal estate belonging to any married woman at the time of her marriage, or to which she subsequently becomes entitled in her own right, and all the rents, issues and profits thereof and all compensation due or owing for her personal services, is exempt from execution against her husband.” Said sections 2497 and 4479, having been adopted as one act of the legislature, must be construed in pari materia; and by the provisions of said section 4479 the rents, issues, and profits of the separate property of the wife are exempted from execution against the husband. The judgment of the court below must be affirmed, and it is so ordered. Costs of this appeal are awarded to the respondent.

Huston, C. J., and Quarles, J., concur.