Bank v. Atkinson.

• Decision Date: 16 February 1889
• Citation: 32 W.Va. 203
• Court: West Virginia Supreme Court
• Parties: Bank v. Atkinson.*(Green, Judge, Absent.)

32 W.Va. 203

Bank

v. Atkinson.*(Green, Judge, Absent.)

Supreme Court of Appeals of West Virginia.

Submitted January 18, 1889.

Decided February 16, 1889.

1. Husband and Wife Separate Estate.

A husband with the knowledge and consent of his wife at different times receives, or she delivers to him, the proceeds of the sale of her realty, gives her no note or written obligation to repay it, mingles it with his means, uses it in his business for years, keeps no written account of such moneys, nor does she, then becomes insolvent and some eight or ten years after his receipt of the money purchases real estate in the name of his wife; and it is alleged by him and her, that it was paid for with the money so received; and several years afterwards he and she unite in a deed of trust to secure a very considerable debt on said real estate, such debt being a loan to the husband; and before such purchase a judgment is rendered against him for a debt. The lot is liable to the judgment.

2. Husband and Wife Separate Estate Statute of Limitations.

If, when such purchase is made, any claim, which she may have on him for such proceeds of her real estate, is barred by limitation, that circumstance tends strongly to repel the wife's claim to exempt the land against creditors, (p. 205 et seq.)

3. Husband and Wife Presumption of Law Evidence.

The law will not from the mere delivery by the wife of her money to the husband or from the permitted receipt by him of her separate estate imply a promise by him to repay her, but will require more, either an express promise, or circumstances to prove that in such matters they dealt with each other as debtor and creditor. To thus raise a debt against him to the prejudice of creditors, the proof must be clear, full and above suspicio.

4. Points 1, 2, 3, and 5 of the syllabus in Burt v. Timmons, 29 W. Va. 441 (2 S. E. Rep. 780,) re-affirmed.

J. F. Brown for appellant.

W. J. W. Cowden for appellees.

Brannon, Judge:

On the 20th of November, 1874, the Kanawha Valley Bank recovered a judgment in the Circuit Court of Kanawha county against Charles T. Duling, Herman L. Gebhart, and George W. Atkinson, for $861.92, and on the 31st of March, 1885. it brought a suit in equity in the Circuit Court of Ohio county against Ellen Atkinson and others, alleging in its bill the recovery of this judgment and its non-payment, and that on the 2d of January, 1882, the United States Building, Land & Loan Association of Wheeling conveyed to Ellen Atkinson a lot of land on Twelfth street in the city of Wheeling for the consideration of $3,300.00 and that said consideration was paid by George W. Atkinson, her husband out of his own funds; that he purchased it from the association, and that Ellen Atkinson paid no part of it, and that George W. Atkinson was largely indebted at the time and used the name of his wife and had the lot conveyed to her, to delay, hinder and defraud his creditors; that said Atkinson, on January 17, 1885, borrowed from the Commercial Bank $1,500.00 and secured it by a deed of trust on said lot executed by his wife and himself; and alleged that he was insolvent. The bill prayed that said lot be decreed to sale for said debt of plaintiff, and that the deed to Mrs. A. be held void as to said bank.

Ellen Atkinson answered admitting the debt of plaintiff, her husband's insolvency and the deed of trust to the Commercial Bank for money borrowed by her husband, but denying that the consideration of the conveyance to her of said lot was paid by her husband, or that he purchased, or that he used her name in the conveyance to defraud his creditors, or that she never paid any consideration deemed valuable for the lot. She averred, that she married on 8th December, 1868, and when she married she and her sister owned a lot in Charleston vested in a brother as trustee, and, she having bought her sister's share, it was conveyed to her 21st March, 1870; that on the 8th February, 1871, Bessie Eagan, her sister, purchased a lot in Charleston, and on 10th March, 1871, she, Ellen Atkinson, and Bessie Eagan traded properties, and said Ellen received in the exchange a property in Charleston called the "Moore Property;" that on 1st of November, 1872, she, her husband joining in the deed, conveyed to Smith and Gilligan a portion of said lot for $4,000.00 and on 15th August, 1874, conveyed the balance to A. C. Fellars for $500.00; that, with part of the money received from said two pieces of property she purchased from the Methodist Episcopal Church the parsonage-property in Charleston, paying for it $2,000.00 cash; this last-mentioned property on February 1, 1883, she and her husband conveyed to J. D. Pubbs for $1,500.00; that it was from these transactions with the money she received from the sales of her separate estate the purchase-money was paid to the said association for said lot in Wheeling. She denied all allegations of fraud.

George W. Atkinson answered admitting the indebtedness and his inability to pay his debts. He alleged, that it was not true, that the consideration for the Wheeling property was paid by him, or that he used the name of his wife in its purchase to defraud his creditors, and averred, that the consideration for the property was paid wholly with money belonging to his wife; that when he married her she owned real estate in Charleston, which was exchanged for other real estate, from the sale of which $4,750.00 was realized, and said Wheeling property paid for out of it. He admitted, that the deed of trust to the Commercial Bank was for a loan to him. Depositions were taken. On the hearing plaintiff's bill was dismissed, and it appealed here.

It is clear from the evidence of George W. Atkinson and Mrs. Atkinson, that the proceeds of the sale of her Moore property went into his hands and with her knowledge; that he gave her no note for it nor any memorandum touching it. She declined to receive a note for it, as he definitely states. No written account of moneys proceeding from her property, though there were several transactions, or of rents arising from it was kept by either of them, He made no deposit in bank or elsewhere to her credit, or to himself as her trustee or agent in any manner designating it as a special fund distinct from his own money. Other moneys he certainly had during the years covered by the transactions pertinent to this case, for he was holding lucrative offices under the United States government, postmaster at Charleston, collector of internal revenue, and United States marshal, and he had a bank account, as he speaks of drawing checks on bank. Moreover it cannot he said, that the money arising from the sale of her property or its rents went to acquire the Wheeling property rather than any of his own proper money derived from other sources, for he mingled it with his and used it for years in his business. His own deposition shows this.

He said: "The $3,300.00 was paid by me as agent for my wife out ©f her funds, which I held in trust for her." When asked how long he had held in trust funds of his wife, he answered:" From the time it came to my hands from the sale of the Charleston property until it was paid over for the Wheeling property." Being asked as to the character of the trust, he answered:" It was a positive understanding between us that the money was hers; that it should not be taken from her but be forthcoming, when her needs required it. I offered to give her notes, but she declined to receive them, for the reason that she knew, that I would not defraud her out of it, and the further reasou that neither of us considered it necessary, in a legal point of view, to pass notes between us." He further said:" It was a verbal contract. It was at various times, and, as I have stated above, no notes were given. The only evidence of the contract was the verbal acceptance of it. It was a verbal contract between man and wife, which should be held sacred, and I have ever regarded it such." Asked to state definitely the time, when he received $4,750.00 which he admitted having received from her property, he answered: "I can not. I have no means of arriving at the exact date." When asked to state, what he did with the money immediately on its receipt, he says: "I can not for the life of me answer that question." He stated also, that the money was received at different times, and he could not say definitely the disposition he made of the money at the time; and that $2,000.00 of it wras paid on the Methodist Episcopal Church lot in Charleston, and some of it was on the purchase of the lot in Wheeling.

He was asked to state, outside of the $2,000.00 paid the Methodist Episcopal Church, what disposition was made of any part of the $4,750.00, where it was, or how it was used up to the time of the purchase of the Wheeling lot, and he replied: "I can not definitely furnish you the desired in- formation. I held it in my possession and may have used it temporarily in some of my business undertakings, but it was always understood, that it should be forthcoming or its equivalent, when needed by my wife." He further stated that he held the money in trust and paid the same to her creditors" out of my own resources," either growing out of the funds I held for her, and may have used in my own affairs, or out of my earnings in my business undertakings." He was asked:" Can you not state more definitely the immediate sources from which you got the money you paid for the property on Twelfth street, in Wheeling?" He answered: "I cannot." He further stated: "It may be that I borrowed temporarily from A. F. Gibbons funds to help make up a sufficient sum to pay one or more of the notes of my wife due for the purchase-money of the property mentioned in the bill. I have stated over and over again that I had received from my wife in trust for her, and as her agent, a sum or sums of money greater than the amount paid by her in the purchase of the property mentioned in the bill, and that the money so...