McDonnell v. Jones

• Decision Date: 10 February 1914
• Citation: 25 Idaho 551,138 P. 1123
• Parties: KATHRYN McDONNELL, Respondent, v. W. R. JONES, Sheriff, JERRY COLBURN et al., Appellants
• Court: Idaho Supreme Court

138 P. 1123

25 Idaho 551

KATHRYN McDONNELL, Respondent, v. W. R. JONES, Sheriff, JERRY COLBURN et al., Appellants

Supreme Court of Idaho

February 10, 1914

PERSONAL PROPERTY-HUSBAND AND WIFE-WIFE'S SEPARATE PROPERTY-INSUFFICIENCY OF EVIDENCE.

1. Under the facts of this case, held, that the evidence is not sufficient to sustain the judgment.

APPEAL from the District Court of the Sixth Judicial District, in and for Bingham County. Hon. J. M. Stevens, Judge.

Action to recover certain horses and for damages. Judgment for plaintiff. Reversed.

Reversed and remanded. Costs in favor of appellant.

Dickinson & Dygert, for Appellants.

The husband may borrow from the wife when she has a separate estate and repay her out of the community funds, provided no creditor of the community or of the husband is defrauded or injured thereby, but the bona fides of the transaction must be clear and convincing or the courts will disregard it. Such loan cannot be proved by the unsupported parol evidence of the husband and wife as against his creditors. (Bennett v. Bennett, 37 W.Va. 396, 38 Am. St. 47, 16 S.E. 638; Clark v. Patterson, 158 Mass. 388, 35 Am. St. 498 and notes, 33 N.E. 589; Trefethan v. Lynam, 90 Me. 376, 60 Am. St. 271, 38 A. 335, 38 L. R. A. 190.)

The tendency of debtors to transfer their means and earnings to the possession of their wives, or to expend them on their wives' property in order to store them away out of the reach of their creditors, renders it necessary for the courts to scrutinize thoroughly any such transaction. (Trefethan v Lynam, supra; Seitz v. Mitchell, 94 U.S. 580, 24 L.Ed. 179; Bennett v. Bennett, supra.)

W. A Beakley, for Respondent.

The evidence conclusively shows that the horses in question were purchased by respondent's sole and separate funds, and the law gives her the absolute right to the ownership thereof, together with the increase, issues and profits thereof. (Secs. 2676, 2677, Rev. Codes; Jaeckel v. Pease, 6 Idaho 131, 53 P. 399; Thorn v. Anderson, 7 Idaho 421, 63 P. 592; Dernham v. Rowley, 4 Idaho 753, 44 P. 643; Evans v. Kroutinger, 9 Idaho 153, 72 P. 882, 2 Ann. Cas. 691; Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497.) Under these decisions this property is not subject to execution for any of the debts of her husband.

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concurs.

OPINION

SULLIVAN, J.

This action was brought to restrain the sheriff of Bingham county from selling two horses and for damages alleged to have been sustained by reason of the sheriff's having taken said horses. The sheriff held said horses under execution issued to enforce a certain judgment against the property of A. J. McDonnell, the husband of plaintiff. The cause was tried without a jury and judgment rendered in favor of the plaintiff, adjudging the plaintiff to be the owner of said horses and for damages in the sum of $ 110 and for costs of suit. The appeal is from the judgment.

It appears from the evidence that Mrs. Colburn and her sons, Jerry and Abe, obtained a judgment against A. J. McDonnell, the husband of plaintiff, for work and labor done and performed for him, and that an execution was issued to enforce such judgment and was levied by the sheriff on the horses in dispute, which were in the possession of said husband. The question is directly presented as to whether said horses were the separate property of the wife, the plaintiff here, or the property of her husband, A. J. McDonnell.

It appears from the record that the McDonnells had been married about four years at the time of the trial of this action that the plaintiff was engaged in conducting a...