Richard Bein and Mary, His Wife, Appellants v. Mary Heath

• Decision Date: 01 January 1848
• Citation: 12 L.Ed. 416,6 How. 228,47 U.S. 228
• Parties: RICHARD BEIN AND MARY, HIS WIFE, APPELLANTS, v. MARY HEATH
• Court: U.S. Supreme Court

47 U.S. 228 6 How. 228 12 L.Ed. 416 RICHARD BEIN AND MARY, HIS WIFE, APPELLANTS, v. MARY HEATH. January Term, 1848

But it is no objection to such a bill, as a rule of pleading, that the husband is made a party to it with the wife. He acts only as her prochein ami.

THIS was an appeal from the Circuit Court of the United States for the Eastern District of Louisiana, sitting as a court of chancery.

The facts are sufficiently set forth in the opinion of the curt.

It was argued by Mr. Crittenden and Mr. Johnson, for the appellants, and Mr. Bradley and Mr. Jones, for the appellee. There were also printed briefs for the appellee filed by Mr. Eustis and by Messrs. Elmore and King.

Mr. Crittenden, for the appellants, stated the substance of the case as follows.

The bill in this case was filed by the appellants, Bein and wife, to enjoin proceedings under a writ of seizure and sale

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taken out by the appellee, Mary Heath, to sell certain property of the appellant, Mary Bein, under a mortgage from the latter, dated the 8th May, 1838, to secure two notes drawn by her in favor of her husband, and by him indorsed,—the one for $10,711.71, the other for $535.59.

The complainants allege that these notes were given for a loan obtained by Richard Bein, the husband, for his own use, and which was so applied; and that in such a case, by the laws of Louisiana, the mortgage of the wife, and her promise to pay the debt, or to make her property responsible, is not binding, but void.

The answer of the appellee denies the averment of the bill as to the purpose of the loan, or the use of the money, and evidence was taken on both sides.

And then he contended,——

1st. That the loan was fof the exclusive use of the husband, and that it was so applied.

2d. That being for such use, and so applied, the notes and mortgage were void as against the wife, and her property; and that, consequently, the injunction prayed by the bill should have been made perpetual.

Upon the first point, Mr. Crittenden said, that Mrs. Bein was a widow when she married Bein, that she was worth $85,000 and free from debt. Her revenue was ample, as she had only two or three children. Bein was a merchant and speculator, in fact insolvent at the time of the loan, although apparently engaged in business. Soon afterwards he became openly an insolvent, and divided little amongst his creditors. In May, 1838, when the loan was made, the witnesses say he could not raise money upon his own responsibility. For whom is it likely, then, that the loan was made. The husband was surrounded with unpaid bills and pecuniary embarrassments of every description. The question is for whom the money was borrowed, and that is the only question under the Louisiana law. We do not find in the record that the wife wanted money. On the contrary, the husband was pressing Heath for the money. A lawyer was consulted, who said the loan must be made to the wife, and an effort was made to give the affair that semblance. Hence the interlineation in the mortgage. Can these written papers prevent the wife from showing the truth of the transaction? Bein paid to one person $4,000 in that same month of May, and also paid other people. But he had no means to pay them with except this loan. He owed Sherman & Co. a debt, which he paid. Not a dollar went to the benefit of the wife. But according to the forms of the transaction, she received the money. It was paid by a check

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to her, which was placed in her own hands. What is the law of Louisiana in such a case? (Mr. Crittenden then cited the article 2412 of the Civil Code, and all the State authorities set forth in the opinion of the court, upon which he commented.)

Mr. Bradley, for the appellee, made the following points:——

1. The loan was made to the wife.

2. She could borrow money and mortgage her property; or,

3. If not loaned to her, it was a fraud practised by the complainants on the defendant.

4. In either case she can have no relief in equity, and there is no error in the decree rendered by the Circuit Court; and,

5. This is a bill by husband and wife, respecting her separate property, in which he is indirectly charged with seeking to injure her. Their interests are adverse. It is his suit. They are improperly joined. Advantage of this can be taken at the hearing, and the bill must be dismissed.

The marriage contract shows that the wife had power to contract. Having this power, she admits that she made this contract in the most formal manner known to the laws, holding out the idea that the loan was for her benefit. We do not say that she can be a surety for her husband. The court ought to protect her in her rights, but there are also other persons to be protected, who were dealing fairly in the transaction. Can she now say, that she led the other party into a snare, and that this other party must show that the money was actually expended for her sole benefit? The question is, Upon whom is the burden of proof? We say that the complainants must show that the money did not, in fact, go to her use. We have her declaration before the notary that it was so. In none of the cases which have been cited can such a formal admission be found. The books and payments of the husband cannot be admitted to contradict this notarial act of the wife. Civil Code, art. 2233-2235; 8 Martin, N. S. 693, 694; 10 Martin, 439.

The letters of Heath show that he thought he was making the loan to the wife. These letters were ruled out below, but exceptions were taken. Starkie, Ev. 57, 62-64; Story, Agency, §§ 131, 135.

The declaration of the husband was to the same effect, and he could act for his wife. Civil Code, art. 2330-2333. In this case he was her proper agent. Ibid., art. 2340, 2362, 2363; 2 Rob. 20; 11 La. Rep. 258; 7 Martin, N. S. 144.

There was collusion and fraud between the husband and wife to cheat Heath. Civil Code, art. 1841, defines fraud. 1 Story's Eq. 384, 385.

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If the other side are right in saying that the lender must look to the manner in which the money is spent, then all married women, under such circumstances, would be placed under the supervision of trustees who might be strangers. She was not a surety for her husband, because he owed us nothing. After borrowing the money, if she chose to lend it to him, she brought herself within the provision of the civil law. Ulpian, book 16, tit. 1.

Bein was insolvent in 1840, two years after the loan was made. But the interest was paid for four years afterwards.

In the admission of facts upon the record is this:——

'It is also admitted that the first four years' interest on the loan was regularly paid, and that for that time the policy of insurance on the house mortgaged to secure the loan was regularly assigned, in conformity with the contract of loan.

(Signed,) R. HEATH,

R. HUNT, Complt's sol.

(Signed,) ELMORE & KING, Att'ys for Respondents.'

Who paid the interest all this time? The policy, too, was made out in the name of the wife, and indorsed by her. She was returned, also, as a creditor in her husband's schedule. She must, therefore, have been acquainted with the whole affair.

But it has been said that the decisions in Louisiana require that we should have seen that the money was expended for the wife's separate use. (Mr. Bradley here critically examined these authorities.)

In point of fact, although we are not bound to show it, the record does prove that the money was actually used for her benefit. On the 29th of May, seventeen days after the money was borrowed, Bein paid $5,500 on account of an elder mortgage, which secured a debt of $15,000 due to the wife.

On the 5th point of the brief, the misjoinder of parties, Mr. Bradley cited 1 Sim. & Stu. 185; 2 ib. 464; 2 Keen, 59, 70-72; 5 Simons, 551-553.

Messrs. Elmore & King filed the following analysis of the Louisiana authorities.

Darnford v. Gros and Wife, 7 Martin, 489.—Decided under the law of Toro.

Lombard v. Guillett and Wife, 11 Martin, 453.—In this case, there was no proof that the husband authorized the wife to sign the note with him, nor did she sign the act of mortgage, although it was given by the husband, upon her property.

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Banks v. Trudean, 2 New Series, 39.—In this case, the wife was admitted and proved to be surety for her husband. The case was decided upon the law of Toro. (Wife might bind herself with the husband, provided she renounced the law of Toto.)

Perry v. Gerbeau and Wife, 5 New Series, 19.—In this case, the wife was surety.

Sprigg v. Bossier, 5 New Series, 54.—The note sued on was given for property purchased by the husband, and she was surety merely.

McMickem v. Smith and Wife, 5 New Series, 431.—The note sued on was given in part for negroes sold to the husband, and in part for a balance then due by him on another obligation to plaintiff.

Hughes v. Harrison, 7 New Series, 251.—The note sued on was given 'for their and plantation use.' The wife was surety merely for her husband, for part of the debt. The case was remanded, to enable the plaintiff to prove how much was for the wife's use and benefit.

Brandegee v. Kerr and Wife, 7 New Series, 64.—This action, although decided in the year 1828, was brought on a note for $1,800, dated August 31st, 1821, and due three years after date. This I know, from having examined the record in the Supreme Court. The case was consequently decided under the law of Toro, which had not been repealed before the execution of the note. The court say the husband and wife were bound jointly and severally. This made the case fall completely within the law of Toro. There was no evidence that the note was given for the wife's benefit. Upon this the court lays great emphasis, and upon it, in fact, decides the case.

The court decided, that the circumstance that she received the money was not sufficient evidence that it was for her separate use and benefit. As the law then stood, the wife was not...