Ensminger v. Hess

• Decision Date: 19 July 1899
• Docket Number: 26
• Citation: 192 Pa. 432,43 A. 1091
• Parties: John T. Ensminger, Appellant, v. Eleanor L. Hess
• Court: Pennsylvania Supreme Court

43 A. 1091

192 Pa. 432

John T. Ensminger, Appellant, v. Eleanor L. Hess

No. 26

Supreme Court of Pennsylvania

July 19, 1899

Argued May 30, 1899

Appeal, No. 26, May T., 1899, by plaintiff, from judgment of C.P. Dauphin Co., Jan. T., 1899, No. 405, on verdict for defendant. Affirmed.

Issue to determine the validity of a judgment. Before McPHERSON, J.

John T Ensminger, a judgment and execution creditor, is plaintiff in this issue which was directed by the court to try the validity of a judgment for $7,500, confessed by Frank J. Hess to his wife, Eleanor L. Hess, the defendant in the issue. Frank J. Hess had for many years been engaged in the business of merchandizing in the city of Harrisburg. On February 9 1879, he married Eleanor L. Leedom, who was then living with her mother in the city of Philadelphia. Her father had died many years before, without leaving any estate whatever. After his death his widow supported herself and daughter by dressmaking, and in the centennial year of 1876, she kept a boarding and lodging house for a period of six months. For a number of years prior to her marriage, Mrs. Hess kept a small private school.

Upon the trial of the case, it was attempted to be shown that Mrs Leedom and her daughter had saved from their earnings from $4,000 to $5,000, which it was alleged they brought with them to Harrisburg in cash. Mrs. Leedom removed to Harrisburg in May or June, 1880, and from that time lived with her daughter, Mrs. Hess. After their removal to Harrisburg neither was engaged in any business from which a separate estate could be legally derived. In April, 1883, a house and lot of ground in the city of Harrisburg was conveyed to Mrs. Hess by Martha Chrisman for a consideration of $4,250, of which $2,250 was paid in cash, and a purchase money mortgage given for $2,000. The cash so paid, it was alleged by defendant, represented a part of the moneys brought by her and her mother from Philadelphia at or about the time of her marriage. In 1884, another mortgage of $2,000 was placed upon the property in question, the proceeds of which were used for additions and repairs. At that time the property represented an investment of $6,250 of which $4,000 was in the form of mortgages as stated. On April 2, 1887, Frank J. Hess applied to the United Security Life Insurance and Trust Company, of Philadelphia, for a loan of $10,000, offering as security a mortgage upon the property in question. This loan was granted, and $4,000 of the proceeds were applied to the payment of the two mortgages referred to, $3,500 to the liquidation of a note of Frank J. Hess indorsed by E. B. Mitchell, and the balance appears to have gone into his business. At the time this mortgage was executed a bond for $7,500 was given to his wife by Frank J. Hess. The consideration for this bond, she alleged, was $1,500 in cash, theretofore advanced to him by his wife, and $6,000 alleged to have been borrowed by her from the United Security Company upon the credit of her separate estate.

The consideration for the judgment, which is the subject of controversy in this case, it is alleged, was the bond given to her in 1887.

The court charged in part as follows:

[We have here a judgment note entered of record and an execution issued and certain money made. Now, who is to have that money will depend upon the answer that you give to the question submitted to you, and the question is, whether the judgment is valid either in whole or in part. It may be good as a whole, or it may be good in part, or it may be altogether bad, and it will be for you to say what answers shall be given to these questions. Is it a good judgment altogether or only in part, and if so, for what part; or is it altogether bad, and therefore to be entirely discarded? Now, if it is invalid in part, that may be from one of two reasons, either it may be too large by mistake, or too large fraudulently. If you should find it to be too large fraudulently -- that the parties with intent to defraud other creditors confessed a judgment which they knew or had reason to know was too large -- in other words, if there was fraud, so that the amount is not the true amount, and that amount was agreed to with intent to defraud, then the whole judgment is bad, even if the excess should only be small. The parties are bound to deal fairly with each other, and especially when what they do may affect the rights of other creditors; and if they attempt to defraud, even although the attempt only covers a small portion of a claim, much the larger part being good, nevertheless their fraud is punished by taking away from the person who otherwise might have claimed a large sum the whole of his otherwise valid claim. If, however, they simply make an honest mistake, and the amount comes to be too large in that way, the law does not punish such mistake. If they honestly believe that the sum was larger than upon investigation it turns out it should have been, no punishment is inflicted for that mistake, and therefore there could still be a recovery for such amount as is actually due.] Of course, their honest belief would not suffice to make a debt. Parties could not make a debt by belief that a debt actually existed. [If a judgment is confessed for two amounts, it might be good as to one amount and might fail as to the other. So you see the questions upon this branch of the case are to be determined by the application of this rule. Is the judgment for just what it ought to be? If so, the defendant would be entitled to a verdict for the whole amount. If the judgment is too large, then the question is, how much of a verdict, if any, is she entitled to receive. If she has been guilty of any fraud in combination with her husband, intending to defraud other creditors, and if the judgment has been swollen to an amount which it ought not to have reached, then she is not entitled to a verdict for any amount, and your verdict would be against her. If, however, the judgment is too large by an honest mistake, then she would be entitled to your verdict for whatever has been shown by the testimony to be honestly due.]

Now, to pass to the next step in the case. [Upon whom, the jury will naturally inquire, upon whom does the burden rest to prove the goodness of this judgment? The answer to that is, that the burden of proving that it is for a full consideration rests upon her. This is a contest between wife and the creditor of her husband, and the rule of law is to-day just what it has been for a great many years, unchanged by recent legislation, that a wife in such a contest must prove that her claim rests upon her separate property -- her separate estate -- which she derived either before she was married, or since she was married, from some other source than her husband. I leave out of the case now, as not being applicable, a gift to her by him at a time when he was solvent. The burden of proof, I repeat, is upon her to show that her debt rests upon her separate estate, and she must prove that to the jury's satisfaction by evidence that is clear and satisfactory and is not equivocal. She must affirmatively show that her separate estate -- money derived from some other source -- came into her husband's hands. If she traces it into her husband's hands, then the presumption is that he received it as a debt, and not as a gift to him, and he is bound to account to her for it.] It might be shown that she had given it to him, but there is no such evidence in this case; if Mr. Hess received any money from his wife, there is no controversy that he received it as a loan and not as a gift. [A wife may have a separate estate acquired in different ways. She may have acquired it by her own exertions before marriage; it may be given her before marriage, or she may inherit it. After marriage she may still get it from some other source than her husband -- by will or by any other way which does not involve him -- and if she has a separate estate of her own, she may use that as a basis of credit to acquire other property. If a wife, for example, owns a house, she may mortgage it, and the proceeds of that mortgage are hers just as much as the property is hers. A mortgage is practically a sale of part of the property, and of course if she sells what is hers, the purchase money is also hers.] So, if a wife has a separate property, she may use that as a basis of credit, and what she gets is as much hers as the property itself; and she may lend that to her husband with the same safety as if she got it before she was married. That is the burden that rests upon her.

[There is a charge of fraud made in this case, as has been argued to you by the gentleman who has just taken his seat. The burden of proving fraud in this transaction is upon the claimant whom he represents, the plaintiff in this issue, because fraud is not presumed. The law presumes that people are honest in all transactions, and therefore when a charge of fraud is made it must be proved by the person who makes it, by evidence that is satisfactory to the jury, that a fraud has been committed. It is not presumed, I repeat, and I need say nothing more on this subject. If the jury find that this judgment has been manufactured, is fraudulent either in whole or in part, confessed in order to defraud, then as a matter of course the judgment is entirely void.] These are the rules that the jury must consider in determining the questions submitted to them.

Passing to another branch of the case, namely, the extent of the defendant's claim, we find that it is limited to two items. She herself so limited it, and the husband limited it also in his testimony to these items. She declares that the consideration for this judgment is the sum of $1,500 which she loaned to her husband, not all at one time,...