Oswald v. Hoover

• Decision Date: 13 December 1875
• Citation: 43 Md. 360
• Parties: DAVID OSWALD, IGNATIUS G. BROWN, and others v. ELIZABETH C. HOOVER.
• Court: Maryland Court of Appeals

43 Md. 360

DAVID OSWALD, IGNATIUS G. BROWN, and others v. ELIZABETH C. HOOVER.

Court of Appeals of Maryland

December 13, 1875

APPEAL from the Circuit Court for Washington County, in Equity.

John Hoover and the appellee, were married in February, 1855.Sometime in the year 1856, Jacob Krouse, the father of the appellee, died intestate, leaving real and personal estate.The real estate was sold under a decree of the Circuit Court for Washington County, as a Court of Equity, passed on the 2nd of December, 1856, and the sale was ratified on the 3rd of March, 1857.The proceeds of this sale were distributed to the heirs of said Krouse, of whom the appellee was one.There was distributed to her by the auditor's first account the sum of $500.90, which account was duly ratified in April 1857; and by the auditor's second account which was duly ratified in June, 1860, the sum of $1,690.62, these two distributions being her portion of the proceeds of said real estate.There was also distributed to her from her father's personal estate, the sum of $376.80; and from the personal estate of her mother, who died in the year 1870 the sum of $312.12, making in all, $2,880.44.These distributions were received by John Hoover, and were invested by him in land, for which he took a deed in his own name, and afterwards sold the land so purchased by him and bought other land, for which he also took a deed in his own name.On the 3rd of March, 1871, he executed a deed of trust to his brother, David Hoover, Jr., conveying all his property for the payment of his debts.The proceedings in this cause, were instituted by the petition of the trustee under said deed of trust, praying that the said trust might be settled up and conducted under the supervision of said Court, and that the moneys coming into his hands as trustee as aforesaid, might be distributed by the auditor, in accordance with the terms of said deed.Among other creditors who filed their claims in the cause, the appellee exhibited her's for the said sum of $2,880.44, being the aggregate amount of said distributions, and claimed to be a creditor of her husband to that extent.

In the auditor's accounts, the claim was allowed as presented, and received its distributive share of the proceeds of sale.Exceptions were filed to this allowance of the claim, by creditors of John Hoover, but were overruled by the Court, (MOTTER, J.,) and from the order overruling the exceptions and allowing the claim, the present appeal is taken.

The cause was argued before BARTOL, C.J., STEWART, GRASON, MILLER and ALVEY, J.

George W. Smith and Wm. T. Hamilton, for the appellants.

The distribution made to Mrs. Hoover, from the proceeds of the sale of the real estate of her father, was not her separate property, but the sale being made under a decree of Court and ratified in the year 1857, the change from realty to personalty was complete, and the same became choses in action of the wife, to which the husband was entitled as of his absolute property, and for which he alone could sue and recover, and could not be restrained by a Court of Equity.State vs. Krebs,6 H. & J., 31;Newcomer vs. Orem,2 Md., 297;Wiles vs. Wiles,3 Md., 8 and 9;Shuttlesworth vs. Noyes,8 Mass., 229;Turton's Ex'rs vs.Turton, 6 Md., 380 and 384; 2 Bacon's Abridgment, 29, Baron and féme;Peacock vs. Pembroke, Garnishee, &c.,4 Md., 280;Griswold vs. Penniman,2 Conn., 564.

Such was the common law and the law of Maryland, at the time the sale was made and ratified by the Court, and the purchase money paid, and therefore vested the proceeds absolutely in the husband.--The laws of Maryland, up to the year 1860, did not change the marital rights of the husband.In the case of Schindel vs. Schindel,12 Md., 294, it is decided that the Acts of 1841, ch. 161, 1842, ch. 293, and 1853, ch. 245, relating to the rights of married women, simply protect the property of the wife from the debts of the husband during her life, and in no other way interfere with the marital rights of the husband, but leave to him all his marital rights as secured by the common law.The law remained so in this State until the Act of 1860, as contained in the Code, and before that time the wife had no separate property, unless the same was given to her by deed, devise, &c, using technical language to make it separate estate, as decided in numerous cases.2 Story's Eq. Jurisprudence, sec. 1372;Turton's Ex'rs vs.Turton, 6 Md., 383 and 384;2 Kent'sComm., 129.

But the Code, Art. 45, secs. 1and2, for the first time, made property acquired, as therein provided, the separate property of the wife, and it then became, and not until then, the subject of contract between husband and wife; all the decisions on this subject show clearly that a husband and wife, can only contract with reference to the wife's separate property, and that even when the wife permits the husband to receive her separate property, and convert it to his own use, she cannot afterwards charge his estate with it.Edelen vs. Edelen,11 Md., 415;Kuhn vs. Stansfield,28 Md., 210;Wylie vs. Basil,4 Md. Ch. Dec., 327.

But in this case, there was no separate property of the wife, and there could be no contract between the husband and the wife, that he should pay back to her, property which the law regards as his absolute estate; there is no consideration, and it would result in a mere gift from husband to wife, and this the law will not allow, as a féme covert, as the law then stood, was incapable of taking anything by gift of her husband.See 20 Bacon's Abridgment, 29, Baron and féme.

And any contract between a husband and wife, or promise by the husband to pay the wife, for property which the law vested in the husband, as in this case, is a nudum pactum and void.

Attorney General Syester, for the appellee.

The relation of debtor and creditor can exist between husband and wife, and contracts out of which such relations spring, will be enforced in Courts of Equity.2 Story's Eq. Juris., secs. 1368and1373;Stockett, Adm'r of Locke vs.Holliday & Wife, 9 Md., 498;Bowie vs. Stonestreet,6 Md., 430;Jones, Adm'r of Horsey vs. Jones & Wife, 18 Md., 468;Edelen vs. Edelen,11 Md., 420;Livingston vs. Livingston,2 Johns. Ch., 537;Atherley on Marriage Settlements, sidepages, 161, 162, 163;Kuhn vs. Stansfield,28 Md., 214.

The right of husband and wife thus to contract being established, a contract, when entered into between them, is governed by the same rules that apply to similar contracts between other persons; and as it is perfectly competent for the relation of debtor and creditor to exist between other parties, without such contract being reduced to writing, so in case of husband and wife the relation can subsist, though the contract rest in parol.

Conceding for the sake of argument that the moneys of the appellee derived from her father's and mother's real and personal property, were not, by reason of the source or mode by which she derived the same, created her legal technical separate estate, the further question presents itself, was there a consummated purpose on the part of the husband himself to settle these several sums of money upon his wife to her sole and separate use, after he had received them?

That he had the power to do so, is clearly seen by the language of the Court in the case of Turton's Exc'rs vs.Turton, 6 Md., 382.In that case, the Court say: "the inquiry is, did he(the husband) intend to exercise that power, and has he effectually done so?"There they decided that there was no evidence to warrant such a conclusion.The husband's whole conduct was in no wise inconsistent with a fixed purpose to treat and use the money as his own.How different is this case?Here all the evidence most convincingly shows that John Hoover never intended, and never did use this money as his own; he treated it as his wife's; borrowed it of her, and promised to repay it to her; made himself her debtor and by his whole conduct made it inconsistent with any other conclusion than that he regarded the money as hers and not his.2 Bright on Husband and Wife, 115.

It is well settled in Maryland, that a wife may contract with her husband; that she may become his creditor, even though the property or money which forms the basis of their transactions is not separate estate; and such contracts, when entered into, and clearly proven, as in our case, will be enforced by the Courts, and the wife will be regarded by the law with as much favor as other creditors.The cases of Bowie vs. Stonestreet,6 Md., 418;Stockett, Adm'r of Locke vs.Holliday and Wife, 9 Md., 480;Jones, Adm'r of Horsey vs. Jones and Wife,18 Md., 466;Mayfield vs. Kilgour,31 Md., 240, conclusively establish this doctrine.

The cases cited by the appellants in support of the position, that there was a conversion of the realty into personalty, and that the husband thereby became entitled to the same as of his absolute property, all arose under the laws in force prior to the Act of 1853, ch. 245, and in none of them was there any testimony to show that the husband did not intend to treat the property as his.

But this Court in construing this Act of 1853, in 27 Md., 436, in the case of Smith, Garnishee of Lester vs. McAtee, say: "the object contemplated by this law is too clear for doubt; by its enactment, the Legislature intended to give full protection and security to the property of the wife against the creditors of the husband, as previous to its enactment the cases of Peacock vs. Pembroke,4 Md., 280, andTurton vs. Turton,6 Md., 375, had been decided by this Court, and in each case, the property was adjudged to be the husband's, and subj ect to the payment of his debts."So that the Act of 1853, ch 245, which is...