Clough v. Russell v. Trustee

• Court: New Hampshire Supreme Court
• Citation: Clough v. Russell v. Trustee, 55 N.H. 279 (N.H. 1875)
• Decision Date: 13 March 1875
• Parties: Clough v. Russell And Trustee.

55 N.H. 279

Clough v. Russell And Trustee.

Supreme Court of New Hampshire

March 13, 1875

Trustee process---Husband and wife.

The transfer by husband to wife of a note payable to him or order, in payment of a loan previously made to him by the wife from funds which she held as her own individual property under the statute, is a valid transaction, so that the maker cannot afterwards be charged as the trustee of the husband on account of such note.

It seems that a loan of her own money by a wife to her husband in this state, may create a valid debt, for the recovery of which a right of action must exist in favor of the wife against the husband

This suit was brought June 28, 1872, and service was made on said trustee the same day.

Murray discloses that he gave said Russell, on the 27th day of June 1872, two notes, each in the sum of one hundred dollars payable to said Russell or order, one in thirty and the other in sixty days, and the same are still unpaid. It appears these notes were endorsed and delivered on the day of their date by said Russell to Betsy A. Russell, his wife, who now claims to be the lawful owner thereof.

The endorsement of the notes is as follows:

"Manchester N. H., June 27, 1872.

"Pay to Betsey A. Russell the within note.

(Signed)

"I. H. Russell."

It appears that in 1870, Lahey & Russell, the defendants, entered into copartnership, and continued in business until June 27, 1872, when Russell sold his interest to said Murray for $2,200; that while in such partnership, Mrs. Russell, this claimant, lent the said firm of Lahey & Russell certain sums of money, and took their notes therefor, amounting to $1,329.40, and lent her husband, the said Russell, in addition, some three hundred dollars. This money so loaned belonged to Mrs. Russell as her own private property, having been given her by her father in part, and part of it was of her own earnings since her marriage with said Russell, in sewing and keeping boarders,---she paying rent and the expenses of keeping boarders,---and none of the money so loaned came to her from her husband, or was ever in his possession otherwise than as above stated.

When Russell sold out his interest to said Murray, as before stated, he paid to her these notes of Lahey & Russell, and a portion of his own debt, paying her $1,300 in money, and endorsing and delivering to her the two notes in question.

The questions arising on the foregoing agreed case were transferred to this court for determination by RAND, J., at the September term, 1874.

Heath and Clough, for the plaintiff. Lord & Sulloway, for the claimant

LADD, J

I am of opinion that this trustee must be discharged. It appears that Mrs. Russell, having money of her own, which by the statute she was entitled to hold against the creditors of her husband, and all the world, loaned some three hundred dollars of it to her husband. It was not a gift, but, as the case distinctly shows, a loan, and that most undeniably implies a valid promise by the husband to repay it. Indeed, the plaintiff's counsel in their brief admit that the notes in question were conveyed to her in payment of a debt honestly due her, precisely as they would have been to any other person. This, of course, shows that, as the law now is in this state, husband and wife may contract together, the common law in this particular having been wholly changed by statute.

I should not be inclined, however, to decide the case on this admission of counsel, unless the admission appears to be in accordance with the law. But I think it is. If a married woman may lease her land to her husband, as was held in Albin v. Lord, 39 N.H. 196, why may she not loan him her money? And since the statute provides that every woman shall hold to her own use, free from the interference or control of any husband she may have all property, &c. (Gen. Stats., ch. 16, sec.1), and shall have the same rights and remedies in relation thereto as if she were unmarried (id. sec. 13), why may she not do either?

It is difficult to conceive what terms the legislature could have used

to show more unmistakably their intention to obliterate entirely, in this respect, the idea of the common law, that husband and wife are a legal unit. As was said, in effect, in Houston v. Clark, 50 N.H. 482, the statute unquestionably removes all disabilities of the wife so far as regards her separate property, and gives her the same rights and remedies with respect thereto as though she were sole.

The logical result seems to be, that the status of marriage interposes no obstacle in the way of either party maintaining a suit at law against the other, in respect of those contracts which the wife is empowered to make; for a contract in form is no contract in any legal sense, unless the law, while recognizing it as valid, furnishes a remedy for its enforcement.

Such right of action was, indeed, unequivocally recognized in Claremont Bank v. Clark, 46 N.H. 134; for, if a judgment may be had against the wife as trustee of her husband, it must be for the reason that she has in her hands money, &c., of her husband, for which he himself would have been entitled to judgment had he, instead of his creditor, brought the suit; and the decision is clearly put upon that ground.

If then, the defendant owed a debt to his wife, which he was legally bound to pay, there was no reason why he might not use these notes for that purpose as well as any other property or money which belonged to him, and the title thereto would pass to her unless sec. 14 is to have the construction claimed for it by the plaintiff's counsel. That section is,---"Nothing in this chapter contained shall be construed to empower any husband to convey any of his property to his wife, in any other manner or with any other effect than if the same...