Nat. German-American Bank v. Lawrence
| Decision Date | 14 July 1899 |
| Docket Number | Nos. 11,690 - (218).,s. 11,690 - (218). |
| Parties | NATIONAL GERMAN-AMERICAN BANK OF ST. PAUL v. ALICE G. LAWRENCE and Another. |
| Court | Minnesota Supreme Court |
Action in the district court for Wabasha county to subject to the lien of a judgment against defendant James G. Lawrence land standing in the name of defendant Alice G. Lawrence, his wife, on the ground that the consideration was paid by him and title taken in her name in fraud of creditors. The case was tried before Snow, J., and a jury, which rendered a special verdict to the effect that the consideration paid for the land was the money or property of the husband. The court made findings of fact and conclusions of law, whereby it found in favor of defendants. From an order denying a motion for judgment notwithstanding the verdict and findings or for a new trial, plaintiff appealed. Reversed on rehearing.
Merrick & Merrick, for appellant.
Webber & Lees and McGovern & Murdoch, for respondents.
This action was brought by a judgment creditor of James G. Lawrence against him and his wife to enforce a resulting trust in plaintiff's favor in certain real estate, the grant of which was made to the wife, but the consideration therefor paid, as is alleged, by her husband, the judgment debtor. G. S. 1894, §§ 4280, 4281. Upon the trial the plaintiff called the husband as a witness, and proposed to examine him as an adverse party, under G. S. 1894, § 5659. To this the wife objected on the ground that a husband could not be examined for or against his wife without her consent. G. S. 1894, § 5662. The court sustained the objection. The plaintiff then called the wife as a witness, and proposed to examine her, under the statute, as an adverse party. To this the husband objected on the ground that the wife could not be examined for or against her husband without his consent. The court sustained the objection. The correctness of these rulings presents the principal question in the case, the answer to which depends upon the construction of G. S. 1894, § 5662, which, so far as here material, reads as follows:
"A husband cannot be examined for or against his wife, without her consent; nor a wife for or against her husband, without his consent; * * * but this exception does not apply * * * to proceedings supplementary to execution."
At common law, where parties could not be witnesses for themselves, neither a husband nor a wife could be a witness in any cause, civil or criminal, in which the other was a party. This exclusion was founded partly on the identity of their legal rights and interests, and partly on grounds of public policy, in order to encourage and preserve inviolate the confidence of the marriage relation. The first of these has been removed by our statute abolishing the incompetency of witnesses on account of interest, and the interest of a person in the result of a cause is no longer of importance, except so far as it may aid in determining whether the evidence of a husband or wife, if admitted in a given case, will be for or against the other spouse, within the meaning of our statute. But the second ground of exclusion, viz., to encourage and preserve inviolate the confidence of the marriage relation, as expressed in the preamble to section 5662, still remains; and to that extent the statute must be construed, if not as merely declaratory of the common law, at least in the light of it. It would seem too plain for argument that in this case the testimony of the husband, if admitted, would have been for or against the wife, whose property was sought to be charged with a trust in favor of her husband's creditor, and hence clearly inadmissible without her consent.
The only distinction attempted to be drawn between the admissibility of the testimony of the wife and that of the husband is that the latter was not a necessary party to the action, and had nothing to gain or lose by its result, and, therefore, that his wife's testimony could not be for or against him, but only for or against herself, and hence not within the exclusion of the statute. But, while not a necessary party, the husband was a proper party, to the action; and, being such, the judgment would be binding and conclusive upon him as to all matters therein determined. Hence he would have a certain, direct, and immediate interest, if not in the event of the suit itself, at least in the record, as an instrument of evidence for or against himself. For example, if the judgment in this case had been in favor of the plaintiff, it would have been conclusive evidence against him, in any other action between him or his privies and the plaintiff or its privies, that the land in controversy was impressed in the hands of his wife with a trust in favor of the plaintiff for the payment of its judgment, — a fact which might materially affect his rights, as husband, in the property.
In Leonard v. Green, 30 Minn. 496, 16 N. W. 399, cited by plaintiff, which was an action of the same nature as the one at bar, the wife was held to be a competent witness for the plaintiff because the husband was no longer a party to the suit, it having been previously dismissed as to him, "the plaintiff waiving any possible right he might have to bind or affect, by the judgment in this action, any interests which the husband might assert or claim." The grounds upon which the decision of that case was put implies that, if the husband had been retained as a party to the action, the wife would not have been a competent witness for the plaintiff. It is also a significant fact that counsel have found no case, under either the common law or any statute, against both the husband and the wife, in which it was held that either was a competent witness without the consent of the other.
The statute allowing a party to examine an adverse party as a witness as upon cross-examination in no way affects or changes the law as to the competency of witnesses. The court was therefore right in sustaining the objection to the examination of both the husband and the wife.
2. The husband had been examined in proceedings supplementary to execution in the action in which plaintiff's judgment had been rendered, and the wife had been examined as a witness in the same proceedings. These examinations were had before a referee. Upon the trial of the present action the plaintiff offered in evidence portions of the testimony of each, as contained in the report of the referee. This evidence stood upon the same footing as any other declarations or admissions of the parties. These alleged declarations or admissions were not proven in the proper way, or by any competent evidence, but no objection to the introduction of the referee's report was made upon that ground.
The trial court admitted a part and excluded a part of the offered evidence. The ground upon which the court admitted a part of this evidence was that, as the statutory exclusion did not apply to proceedings supplementary to execution, therefore the testimony of the husband and the wife, given in such proceedings, would, if otherwise competent, be admissible in any other action to which they were parties. The ground upon which he excluded the remainder of the offered evidence was that only those declarations or admissions of the defendants would be admissible which immediately tended to prove who paid the consideration for the particular grant which was the subject of this action. If the court had been correct in the reason assigned for admitting a part of the offered evidence, it would be very difficult, if not impossible, to sustain his action in confining its admission to such narrow limits, in view of the liberality in the admission of evidence permissible in cases of this character....
To continue reading
Request your trial