Bennett v. Bennett
| Decision Date | 01 September 1892 |
| Court | West Virginia Supreme Court |
| Parties | Bennett v. Bennett, et at. Bishop r. Lindsey. |
A judgment confessed by a husband in favor of his wife, free from fraud, for a just debt due from him to her on account of her separate estate, will not be held void in a court of equity at the instance of his creditors, but will be a lien on his land. If fraudulent it is void as to them. (p. 39S.)
If a wife deliver or allow her husband to receive money of hers belonging to her separate estate, the presumption is that it is a gift, not a loan, and she must establish by clear proof that it was a loan, with promise of repayment, at the time of the transaction, especially as against his creditors, (p. 401.)
An adjournment in taking depositions from onetime to another must specify the date to which the adjournment is. An adjournment from 19th March, 1890, "until 15th, 1890," is bad. Depositions taken 15th May, 1890, the adverse party not appearing, cannot be read over his exception, (p. 405.)
Suits at law by wives against husbands.
Evidence of a witness giving contents of a private entry in a book by a person deceased, of payments of money to his children, neither the book nor a copy of the entry being produced, nor the book verified, is not admissible to show such payment, even if the book itself would be evidence. (p. 404.)
A writing signed by distributees of a dead man, stating that they had severally received from him certain sums of money, is not competent evidence to prove that fact against strangers, (p. 405.)
J. II. "Woods, for appellants cited How. Part. §§ 9, 10; 10 W. Va. 171; 27 W. Va. 759; 4 II. & M. 1; 5 Rand. 126, p't 1, Syll; 17 Gratt.187, p't 10, Syll.; 1 Greenl. Ev. §§117, 118; 30 W. Va. 248, p't 4, Syll.; 32 W. Va. 203; Code, c. 74, s. 1; 31 W. Va. 16; 11 W. Va. 217; 26 W. Va. 225; Code, e. 129, s. 4; 13 W. Va. 440, p't 10, Syll.
Dayton & Dayton, for appellee cited 32 W. Va. 566; Id. 203; Id. 447; Code, c. 125, 8.33; 34 W. Va. 442; Code, c. 130, s. 35; 27 W. Va. 510, 436; 33 Gratt, 730; 18 W. Va. 694; 28 W. Va. 415; Code, c. 130, s. 23; 34 W. Va. 442; 35 W. Va 634; 14 S. E. Rep. 59; 1 Bl. Judgmts § 56; Id. 211; 106 111. 36; 47 Pa. St. 307; 33 Gratt. 351; 29 W. Va. 385; 13 W. Ya. 572; 15 W. Va. 829; 19 W. Va. 366; 27 W. Va. 759; 27 W. Va. 220; 20 W. Va. 272; 22 W. Va. 581; 24 W. Va. 525; 20 W. Va 244.
On April 19, 1889, R, C. Bennett confessed a judgment in favor of Maggie Bennett, then his wife, and she brought a chancery suit in Barbour county against R. C. Bennett and others, alleging the said judgment, and that it was based on borrowed money belonging to her separate estate, for which R, C. Bennett had executed to her his obligations, and that said judgment was alien on R. C. Bennett's land; and praying that it be enforced against the same.
J. A. Bishop and William T. Bishop, who were made defendants as judgment-creditors, answered the bill, demurring to it, and claiming that, as the judgment had been confessed while the parties to it were husband and wife, it was void, and not a lien on the land of R. C. Bennett; alleging that if Mrs. Bennett had received money from her father's estate, and her husband had used it, he gave her no obligations at the time for it, and they used their funds in common; that he purchased the land with his own means, or, if with her means, she had given it, without any written evidence of debt for it, and had no such evidence until any claim by her was barred by limitation; and that said judgment was confessed to hinder, delay, and defraud them and other creditors of R. C. Bennett.
Said J. A. Bishop, a judgment-creditor of R, C. Bennett, brought an independent suit of his own to enforce his judgment, and in his bill assailed said confessed judgment as void in law and intended to defraud creditors.
The two causes were heard together, resulting in a decree adjudging the said judgment void, but according to Mrs. Bennett a lien from the institution of her suit, decreeing several liens against R. C. Bennett's land, giving priority to the debt of Mrs. Bennett, and subjecting the land to sale. From this decree J. A. Bishop and William T. Bishop appeal to this court,
The first question I shall discuss is whether a judgment confessed by a husband in favor of his wife is valid. It is contended that as a wife can not sue a husband at law, can not contract with him, or sue him at law upon his obligation, the judgment must be to all intents void. Our statute (chapter 66 of the Code) allows a married woman to hold and enjoy property as her separate estate free from the power of her husband, and from that fact it might be thought she could sue him to effectuate and vindicate her separate property right sue him as well as any one else; and especially so as section 15 gwes her the right to sue alone "where the action or suit" concerns her separate property, or is between her and her husband, using the words "action or suit," referring both to actions at law and suits in equity, seeming to be an unlimited grant of capacity to sue her husband.
In several states, where similar statutes prevail, she is allowed to contract with her husband and sue him. Scott v. Scoff, 13 Ind. 225; Wilkins v. Miller, 9 Ind. 100; May v. May, 9 Neb. 16 (2 N. W. Rep. 221); Wright v. Wright, 54 N Y. 437; Wilson v. Wilson, 36 Cal. 447; Hall v. Hall, 52 Tex. 294.
The tendency of decisions seems to be that way. How can she obtain a lien for her just debt on her husband's land? Others can obtain judgment liens before justices which may absorb his estate, leaving her without relief. From cases which I noticed in examining other matters I incline to think that under our statutes she could maintain ejectment or detinue against her husband to recover real or personal property, Crater v. Crater, 118 Ind. 521 (21 N. E. Rep. 290); Wood v. Wood., 83 N. Y. 575; Minier v. Minier, 4 Lans. 421; Emerson v. Clayton, 82 III. 493; Martin v. Robinson, 65 111, 129; McKindry v. McKindry (18 Atl. Rep. 1078); 6 Lawy. Rep. Ann. 506 and note.
In Alexander v. Alexander, 85 Va. 353 (7 S. E. Rep. 335) the opinion supports the right to sue the husband at law because of the married woman's act. But the commonlaw prevails with us, and under it a wife can not contract with her husband; and chapter 66 of the Code, giving her right to hold separate property, has not given her capacity to contract at law, or to contract with her husband. Pickens v. Kniseley, 36 W. Ya. 794 (15 S. E. Rep. 997). She can not sue-her husband at law, because she can not contract with him at law. Roseberry v. Roseberry, 27 W. Va. 759.
But here is a confessed judgment. Is it good? The question is not between the husband and wife; it is not whether he could plead the invalidity of the judgment, but whether strangers to the judgment, creditors of the debtor, can allege its invalidity. In Arkansas, where the statute is the same as ours, judgment confessed by the husband in his wife's favor was held void because of the unity of the husband and wife; but there the husband attacked the judgment. But in Simmons v. Thomas, 43 Miss. 81, while it was held that, where a husband owes a wife, the proper forum for the enforcement of the indebtedness is chancery, yet if he confessed a judgment, it was valid and could be assailed only for crime, malice or fraud against creditors. It was a contest between judgment-creditors, and the wife was given the preference under her judgment.
In Williams's Appeal, 47 Fa. St. 307, it was held that a judgment admitted to be unobjectionable in point of honesty, given by a husband to secure his wife her separate estate, in a question of distribution, will not be void in law or equity because of the legal unity of the parties. The relation not appearing in the record, the court will not, at the instance of the creditors, inquire into the fact of coverture when no fraud is alleged.
In Rose v. Latshaw, 99 Pa. St. 288, and Lahr's Appeal, Id. 507, it was likewise held. I am aware that law and equity are in Pennsylvania administered in the same action, but the principle is stated generally.
1 Black, Judgm. § 56, says: "The indebtedness of the husband to his wife, by note or for money or property, is a sufficient consideration to support a judgment confessed by him in the wife's favor as against his other creditors, when not impeached for fraud; and such a judgment, admitted to be honest, will not be treated as void in law or equity because of the legal unity of the parties, and, the relation not appearing in the record, the court will not, at the instance of creditors, inquire into the fact of coverture, when no fraud is alleged." He cites Thomas v. Mueller, 106 111. 36, and Williams' Appeal, 47 Pa. St. 307, which I tind to support his text, though in Illinois a statute authorizes such suit.
Therefore I think a confessed judgment by husband in favor of wife can not be attacked by strangers simply because it is between husband and wife, based on a contract between them. The only question which creditors can ask is: Was there an honest debt due from husband to wife for her separate estate? If so, she has the same right as they. He can prefer her as well as any other creditor. If it is a just debt, a court of equity, which fully recognizes that a husband may be debtor to his wife, will not split hairs as to the form of the indebtedness. Will such court allow strangers to say, that she shall not have the priority of the judgment on account of the form of the preference because of the technical principle of common-law which does not permit a wife to sue a husband, when they would recognize a deed of trust or mortgage? I think not,
The husband may plead the coverture, but why should strangers be allowed to do...
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