Jordan v. White

• Decision Date: 29 January 1878
• Citation: 38 Mich. 253
• Court: Michigan Supreme Court
• Parties: Margaret E. Jordan v. John B. White et al

38 Mich. 253

Margaret E. Jordan v. John B. White et al

Supreme Court of Michigan

January 29, 1878

Submitted January 10, 1878

Error to Saginaw.

Trover. Plaintiff brings error.

Judgment reversed with costs and a new trial granted.

J. H McDonald and B. M. Thompson for plaintiff in error. Where the parties to a sale are intimately associated, as by marriage they do not have to show the same signs of actual and continued change of possession as is required of strangers Curry v. Ellerbe, 1 Bailey (S. C.), 578; Howard v. Williams, id., 575; Kid v. Mitchell, 1 N. & M. (S. C.), 334; Jacks v. Tunno, 3 Dessau. (S. C.), 1; Smith v. Littlejohn, 2 McCord (S. C.), 362; Braxton v. Gaines, 4 H. & M. (Va.), 151; Wash v. Medley, 1 Dana (Ky.), 269; Enders v. Williams, 1 Metc. (Ky.), 346; Dodd v. McGraw, 8 Ark. 83; Danley v. Rector, 10 Ark. 211; Clayton v. Brown, 17 Ga. 217; Goodwyn v. Goodwyn, 20 Ga. 600; McVicker v. May, 3 Penn. St., 224. A contract of sale between husband and wife or parent and child is not presumptively fraudulent, Naylor v. Middleton, 2 Madd. 410; Sterling v. Ripley, 3 Chand. (Wis.), 166; Wightman v. Hart, 37 Ill. 123; Dunlap v. Bournouville, 26 Penn. St., 72; Wilson v. Lott, 5 Fla. 305; Montgomery v. Kirksey, 26 Ala. 172; Kane v. Drake, 27 Ind. 29; Hempstead v. Johnston, 18 Ark. 123; King v. Russell, 40 Tex. 124; Shearon v. Henderson, 38 Tex. 245; Clarke v. McGeihan, 25 N. J. Eq., 423.

Wisner & Draper for defendants in error.

OPINION

Campbell, C. J.

Defendants are sued for the seizure on attachment of certain property as belonging to the husband of plaintiff which she claims to have taken from him in payment of an antecedent debt. The defense rests on a claim that the sale was fraudulent.

Plaintiff introduced testimony which, if true, showed conclusively a valid title. She proved that her husband's business had been set up on money which she had advanced to him out of her own estate, and that his books had shown from the beginning that she was credited with these advances as a loan, and also that some time before any suit was commenced against him he transferred the property to her, and she removed it to a store rented by herself and opened a new set of books, putting her husband and a former clerk in charge of the business on her account.

While the record contains several questions closely connected with each other, the real questions were narrow, and presented but two issues, viz.: first , whether the husband was honestly indebted to the wife; and second, whether he transferred the property to apply on that debt. If these two conditions existed, he had a right to sell and she had a right to buy, and such a transaction cannot be complained of by other creditors, although it may hinder and delay or even entirely defeat the collection of their debts. Whatever may be their remedy in the bankrupt courts, such preferences are lawful under the State laws: this doctrine was so fully discussed and settled in Hill v. Bowman, 35 Mich. 191, that we need not elaborate it. That case was not reported in the regular series of reports when this cause was tried in the circuit court.

The hindrance and delay complained of were the withdrawal of the property in question from liability to seizure for other debts. If Mrs. Jordan was not herself a creditor, she had no case, as she did not claim to be a purchaser for new payments. If she was such a creditor and took the goods upon her debt, her rights were clear.

Charges were asked in two or three different forms which presented her claims in the precise form indicated as giving them validity. As this was the only matter really in controversy (for she had no rights on any other theory) she was entitled to have the points clearly and plainly presented. The court refused to give the charges asked. She claims that this refusal was not corrected by the charges given.

We think the charges given did not present these questions without such qualifications as tended to create a wrong impression. The general effect of the charge is to create the idea that a wife cannot deal with her husband in obtaining payment of her debts due from him, on the same terms which would be allowable to other creditors. And in giving the charge on the particular question involved, the court appended conditions which were likely to do her wrong.

The charge was "she would have a perfect right, then, to purchase the entire stock of goods owned by him at that time provided it was not done to injure some third party. And he would have a perfect right to sell to her, and the sale would be lawful under the laws of this...