Bast v. Bast

Citation217 P. 345,68 Mont. 69
Decision Date26 June 1923
Docket Number5202.
PartiesBAST v. BAST ET AL.
CourtUnited States State Supreme Court of Montana

Rehearing Denied July 10, 1923.

Commissioners' Opinion.

Appeal from District Court, Fergus County; Rudolf Von Tobel, Judge.

Action by Nicholas G. Bast against Edna M. Bast and another. From an order vacating a temporary restraining order and denying permanent injunction, plaintiff appeals. Affirmed.

Belden & DeKalb and Merle C. Groene, all of Lewistown, for appellant.

Charles J. Marshall, R. S. Harrington, McConochie & McKenna, and Edward R. Baird, all of Lewistown, for respondents.

ROSE C.

The appeal now before this court is from an order vacating and annulling a temporary restraining order and denying a permanent injunction. The plaintiff and appellant instituted this action to restrain the sheriff of Fergus county from selling certain lands at execution sale. The essential facts in the case are as follows: The plaintiff acquired title to the lands involved herein under the homestead laws of the United States, after which the respondent Edna M. Bast procured a decree of divorce from him on the ground of extreme cruelty, in which decree she was awarded the care custody, and control of their minor child, $40 per month for the support and maintenance of the child, together with a judgment against her former husband for the sum of $3,900. Execution was issued upon this judgment and the appellant claimed said lands as exempt under and by virtue of the provisions of section 2296, Rev. Stat. U.S. (section 4551 U.S. Comp. Stat.), for the reason that the judgment was founded upon debts contracted prior to the issuance of patent. Respondent claims that the judgment was an allowance of alimony, and it is with this question that we have to deal.

When the order to show cause came on for hearing in the trial court, it was stipulated and agreed:

"That on October 15, 1919, final receipt from the United States Land Office issued to the plaintiff for the south half of the south half of section 9, township 17 north, of range 15 east, in Fergus county, Mont., the same being homestead entry Serial No. 035011; and thereafter on February 12, 1920, a patent from the United States of America duly issued to the plaintiff for said lands; that the said lands were filed upon by plaintiff and title acquired thereto under the homestead laws of the United States, in particular chapter 5 of title 32, Revised Statutes of the United States; that prior to the commencement of this action by the plaintiff an execution based solely on the judgment against the plaintiff herein for the item of $3,900 set forth in the judgment in cause No. 8708, hereinafter mentioned, had duly and regularly issued out of this court in cause No. 8708, entitled Edna M. Bast, Plaintiff, v. Nicholas G. Bast, Defendant, and delivered to the sheriff of Fergus county, Mont., for levy; that pursuant thereto the sheriff levied upon the said lands hereinbefore described and had advertised the same for sale, said sale to be held at 2 o'clock p. m., on the 13th day of May, 1922, the date when plaintiff commenced this action to restrain said sale; that the records and files of said cause No. 8708 aforesaid be introduced in evidence and considered by the court; that in the complaint in said cause, among other things, plaintiff alleges 'that plaintiff has advanced to and for the use of said defendant, since her marriage to said defendant, a sum in excess of $4,000 in lawful money of the United States of America, and said defendant has used funds in addition to this amount belonging to plaintiff for the payment of his own personal obligations and liabilities.' "

In said cause No. 8708 the court found as follows:

"That plaintiff has advanced to and for the use and benefit of said defendant, since her marriage to said defendant, the sum of $3,750, lawful money of the United States, no part of which has been paid to plaintiff and which amount is due and owing to plaintiff from defendant, and which amount plaintiff is entitled to recover in this action."

And the decree provides:

"That plaintiff have and recover from the defendant the sum of $3,900, lawful money of the United States, together with her costs taxed at $54.10 herein, and that sum be and it is hereby declared to be a lien on any and all property of said defendant, real, personal, or mixed."

The said sum of $3,900 includes an attorney fee of $150 allowed to plaintiff in her divorce action. It is conceded that all the money was advanced to and for the use and benefit of appellant prior to the issuance of patent to him by the United States covering his homestead. The patent was issued February 12, 1920, the divorce decree was rendered and entered October 19, 1920, and this case was filed May 12, 1922.

Section 2296, Rev. Stat. U.S., supra, reads as follows:

"No lands acquired under the provision of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor."

In order to entitle the plaintiff to the benefit of the exemption afforded by the foregoing statute, it was incumbent upon him to show by a fair preponderance of the evidence that the moneys advanced by his wife constituted a debt contracted by him and that the trial court so found. This he failed to do.

It will be observed, from an examination of the excerpt of respondent's complaint in her divorce action, that there is no allegation of any contractual relations between the parties concerning repayment of the moneys advanced. There is no allegation that same was paid at the special intance and request of the husband, that a loan was intended; nor does it appear that he ever agreed to repay the same. The amount of the judgment is for less than the aggregate amount of moneys advanced.

The action was instituted by respondent to obtain a divorce and alimony, and was not a suit to recover a money judgment for the amount advanced. It is clearly apparent from the record that the trial court considered these matters in fixing the amount of the alimony and did not render judgment for debts contracted prior to the issuance of patent to the appellant. Where a husband actually borrows money or property from his wife with the understanding at the time that it shall be repaid, he will be treated as her debtor.

"The parties must have understood it to be a debt in order to raise a contract to repay." 1 Schouler on Dom. Rel. p. 552.

The unexplained payment of money by a wife to her husband does not raise a presumption that a loan was intended, and she cannot enforce payment. Our statute, which gives to a married woman the rights which emancipate her from most of the disabilities of coverture and vests her with the legal capacities of a feme sole, does not abrogate the marital relation, so as to lay a foundation for the presumption that the advance of money by a wife to her husband is a loan or creates the...

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