Bayne v. State, to Use of Edelen

Decision Date10 April 1884
Citation62 Md. 100
CourtMaryland Court of Appeals

The cause was argued before ALVEY, C.J., YELLOTT, MILLER, and IRVING, J.

Jos. K. Roberts, and William H. Tuck, for Bayne and wife.

F Snowden Hill, and Frank. H. Stockett, for the State, use of Edelen.

ALVEY C.J., delivered the opinion of the Court.

In this case the deed by the husband to the wife, of all his real estate, was made in September, 1868, for the recited consideration of eight thousand dollars. It was made after suit had been brought by the complainants now seeking to have the deed declared void as against themselves, and but a short time before they recovered judgments against the grantor. The deed is sought to be sustained as against these creditors by proof, by the husband and wife alone, that so far back as the years 1844, 1845, and 1846, and upon several occasions subsequently, the husband had received several sums of money of the wife which he had promised, at the time of receiving the same, to repay to the wife; but not having paid the same when finding himself pressed by his creditors, and, as he says, importuned by his wife, he summed up the various amounts received from the latter, with interest, which amounted to near about as much as the principal, and made that the consideration of the deed.

In the answer of the defendants to the bill, instead of a particular and detailed statement of the transactions between the husband and wife, in regard to the loans of the money made the consideration of the deed, they aver, in general terms that after their marriage in 1844, and from that time, and at sundry times, down to the time of the execution of the deed, the wife had received from her father, in his life-time, and from his estate after his death, (which occurred in 1858,) various sums of money, which she at different times agreed to loan, and did loan, to her husband, with the promise from him, exacted by her, that he would repay with interest, whenever she might thereafter desire or need the same; and that the husband had repeatedly since promised to secure and repay her the money so loaned.

They further aver, that since the execution of the deed, the husband has been living upon the land conveyed, together with his wife, using and cultivating the same, as her agent, and for her use and benefit, and that the proceeds therefrom have been applied, with the consent of the wife, to the support of herself and family.

As was very justly said by the Supreme Court of the United States, in Seitz vs. Mitchell, 94 U.S., 582, and repeated by this Court in the case of Hinkle vs. Wilson, 53 Md., 292, "purchases of either real or personal property made by the wife of an insolvent debtor during coverture are justly regarded with suspicion, unless it clearly appears that the consideration was paid out of her separate estate. Such is the community of interest between husband and wife; such purchases are so often made a cover for a debtor's property; are so frequently resorted to for the purpose of withdrawing his property from the reach of his creditors and preserving it for his own use, and they hold forth such temptations for fraud, that they require close scrutiny. In a contest between the creditors of the husband and the wife there is, and there should be, a presumption against her which she must overcome by affirmative proof. Such has always been the rule of the common law; and the rule continues, though statutes have modified the doctrine that gave to the husband absolutely the personal property of the wife in possession, and the right to reduce into his possession and ownership all her choses in action." And in support of the doctrine just stated, many decided cases are referred to by the Court.

In this case, the rights of the parties, and the validity of the transactions involved, depend upon the law as it stood before the adoption of the Code in 1860.

By the common law, before it was modified by the adoption of the Code, as between husband and wife, the personal property of the latter, such as money, goods and chattels, became vested immediately and absolutely in the husband, and he could dispose of it as he pleased. Co. Litt., 351, b; 2 Kent Com., 143. And if a debtor of the married woman paid to her during coverture the debt, or if money was given to her by any third person, unless it was expressed to be to her sole and separate use, the money so received enured to the benefit of the husband, and became his property absolutely. And so the husband was entitled absolutely to all sums of money received by a third person on account of his wife during coverture. These principles are among the elementary doctrines of the common law; and they have been adopted and applied by repeated decisions of this Court. Turton vs. Turton, 6 Md., 375, 381; Taggart vs. Boldin & Thayer, 10 Md., 104.

If, therefore, it be conceded, as it may well be, upon the proof in the case, that the money came to the wife and was received or paid over to the husband, as and in the manner stated in the answer, and as testified to by the wife, still there is nothing to show that it came to the wife as her sole and separate estate, and consequently it vested in the husband at once and absolutely, by virtue of his marital relation. Unlike a chose in action belonging to the wife, which did not vest absolutely in the husband except at his own election to reduce it into possession, the receipt of the money by the wife was the receipt of the same to the use of the husband, and the money became his instantly it was received by the wife. Carroll vs. Lee, 3 G. & J., 504.

It would, doubtless, have been competent to the husband to settle the money upon the wife, to her sole and separate use, by gift; but, as has been said by this Court, "the act by which he divests himself of his property must be clear and unequivocal" (Turton vs. Turton, supra); or, as was said by the late Chancellor JOHNSON, to establish such gift from the husband to wife, Courts of equity require clear and incontrovertible evidence. George vs. Spencer, 2 Md. Ch. Dec., 353, 360. The marital rights of the husband having attached, the mere promises of the husband to the wife to repay her the various sums of money received by him were without consideration, and could form no ground for a valid claim against him. Oswald vs. Hoover, 42 Md., 368; Plummer and Wife vs. Jarman, 44 Md., 637; Sabel vs. Slingluff, 52 Md., 132, 135. Such promises amounted to nothing more than mere voluntary agreements to make future donations to the wife by the return of like sums of money. Being without consideration, they could not be enforced; for a mere promise to make a voluntary gift is not sufficient. To make the intended gift effectual, the intention must have been executed; and the evidence should show clearly and distinctly that the husband had, by positive act, divested himself of his right of property and vested the same in the wife.

This case is entirely unlike those cases where the husband contracts with his wife in respect to her separate estate, or where the fund, in respect to which the promise is made, is, or could be made, subject to the control of a Court of equity, and the promise is to do what the Court would compel the husband to do, by virtue of the wife's right to equitable settlement out of the fund; or where in consideration of the wife's agreement to sell her real estate, and allow the husband to receive the proceeds thereof, under a promise to invest such proceeds for her benefit, or to pay her the money; as in all such cases, the promise is founded upon good and sufficient consideration, and the relation of debtor and creditor is created as between the husband and wife. These propositions find apt and pointed illustration in the cases of Stevenson vs. Reigart, 1 Gill, 1; Bowie vs. Stonestreet, 6 Md., 416; Stockett vs. Hollyday and Wife, 9 Md., 480; Jones vs. Jones and Wife, 18 Md., 464; Kuhn vs. Stansfield, 28 Md., 210; Mayfield vs. Kilgour, 31 Md., 242; Oswald vs. Hoover, 43 Md., 360; Crane vs. Barkdoll, 59 Md., 534.

The case of Stevenson vs. Reigart, 1 Gill, 1, is much relied upon by the defendants; but that case is not an authority in a case like the present. In that case certain executors held the legacy, a chose in action, due the wife, as her trustees, and they paid over such legacy to the husband upon a special agreement with them, that the money should be invested for the exclusive benefit of the wife. It was upon the validity of this agreement with the trustees that the case turned. The Court declared that the husband received the money from the trustees, on the agreement, not by virtue of his marital rights, but as trustee for his wife. He received the money, say the Court, upon a special trust and confidence, that it would be invested for her benefit; he received it as her trustee; and upon his failure to make that investment, the consideration upon which he received it failed, and the wife had a right to consider it as so much money had and received for her use. That case, therefore, has but slight, if any, the remotest, bearing upon this case.

No case could well occur where greater injustice would be done to the creditors of the husband by upholding the deed to the wife than in this. Bayne, the husband, became surety on the guardian's bond of Monroe, given for the protection of the complainants, then minor children, in 1855. He was then the owner of the farm that he subsequently conveyed to his wife. We may well suppose that it was upon the faith of such ownership of the farm that he was accepted as...

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  • Farmers' & Merchants' Nat. Bank v. Jenkins
    • United States
    • Maryland Court of Appeals
    • March 10, 1886
    ... ... thus received by him was, under the then existing laws of ... this state, absolutely his own property. Turton ... v. Turton, 6 Md. 375; Logan ... v. McGill, 8 Md. 462; derson ... v. Tydings, 8 Md. 427; Schindel ... v. Schindel, 12 Md. 311; Bayne ... v. State, 62 Md. 100. The money thus ... received by him constituted no part of his wife's ... ...

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