Liebenthal v. Price

• Decision Date: 07 February 1894
• Parties: LIEBENTHAL v. PRICE, SHERIFF, ET AL.
• Court: Washington Supreme Court

35 P. 1078

8 Wash. 206

LIEBENTHAL v. PRICE, SHERIFF, ET AL.

Supreme Court of Washington

February 7, 1894

Appeal from superior court, Pierce county; F. Campbell, Judge.

Action by Dora Liebenthal against James H. Price, sheriff of Pierce county, and the Rosenfeld-Smith Company, for damages for an alleged unlawful levy on plaintiff's property. From a judgment for plaintiff, defendants appeal. Affirmed.

Stevens Seymour & Sharpstein, for appellants.

Crowley & Sullivan, for respondent.

ANDERS J.

Some time prior to the month of April, 1891, Max Liebenthal, the husband of the respondent, and one Fournier, were engaged in the cigar and tobacco business in the city of Tacoma, under the firm name of Liebenthal & Fournier. This firm was dissolved by mutual consent on or about the date aforesaid, and Max Liebenthal, the husband of the respondent took his partner's interest in the assets of said firm and carried on the business until June 4, 1891. On that day he made a bill of sale of the contents of the store to the respondent in consideration of $2,000, which he claimed to owe her. After this bill of sale was made and recorded, the Rosenfeld-Smith Company, a corporation, brought an action against Liebenthal & Fournier to recover a balance alleged to be due for goods sold and delivered; and in that action a writ of attachment was issued, and levied upon the contents of the cigar store by the appellant, James H. Price, then sheriff of Pierce county. A judgment was thereafter obtained in favor of the plaintiff, and execution issued; and the property so attached was sold under said writ of execution at public auction, and was bid in by the Rosenfeld-Smith Company, and the proceeds applied in satisfaction of their judgment. Soon thereafter the respondent instituted this action for damages alleged to have been sustained by the wrongful levy and sale of the said property. The claim of the respondent was contested by appellants on the ground that the bill of sale was fraudulent and void, and designed as a shield to prevent the property of Liebenthal from being appropriated to the payment of his debts. On the trial the jury rendered a verdict in favor of the respondent, upon which judgment was subsequently entered.

It is contended here by appellants that the judgment must be reversed for the reason that the evidence is not of that clear and satisfactory character which the law requires, in order to establish the good faith of a transaction between husband and wife. In such cases the burden of proof is imposed by our statute upon the party asserting the good faith of such transaction. See 1 Hill's Code § 1455. And it is generally held, when transfers of property from husband to wife are questioned on the ground of bad faith, that the payment of a valuable consideration must be shown by proof of the most satisfactory character. Bump Fraud. Conv. p. 306; Horton v. Dewey, 53 Wis. 410, 10 N.W. 599; Fisher v. Shelver, 53 Wis. 498, 10 N.W. 681. It is shown by the testimony of the respondent that, some years prior to the making of the bill of sale, she loaned her husband $3,000, which she had procured from the representatives of her father's estate, and that the bill of sale in question was given in...