Parker v. Fenwick Et Ux

• Decision Date: 29 April 1908
• Citation: 61 S.E. 378,147 N.C. 525
• Court: North Carolina Supreme Court
• Parties: PARKER. v. FENWICK et ux.

147 N.C. 525

61 S.E. 378

PARKER.

v.FENWICK et ux.

Supreme Court of North Carolina.

April 29, 1908.

1. Fraudulent Conveyances — Transfer to Wife—Burden of Proof.

It appearing that one was insolvent when he transferred money to his wife, the burden was on her in a suit by his creditor to prove that the money was received in discharge of a valid debt which she could have enforced against her husband.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances, §§ 801, 813.]

2. Same—Transfer Fraudulent.

If an insolvent, while plaintiff's suit was pending against him, transferred money to his wife in payment of his debt to her, but with intent to hinder or defraud plaintiff in recovering, and the wife participated in or knew it was being done for such purpose, the transfer was fraudulent, though he actually owed her.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances, § 510.]

3. Same—Payment of Debt to Wife—Rights.

If one lent her husband money received as a bridal present and as the profits from her business, he thereby became indebted to her and could legally pay her the debt, which she could enforce against him.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances, §§ 248-267.]

4. Same—Question for Jury.

Whether a transfer of money by an insolvent to his wife was fraudulent as to a creditor held, under the evidence, a question for the jury.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances, §§ 923-932.]

5. Evidence — Admissibility—Declarations by Insolvent.

In an action involving the validity of a transfer of money by an insolvent to his wife, a creditor could show that before the transfer insolvent told another that he was going to put his money where his creditors could not get it, but ex parte declarations made by him after the transfer were inadmissible.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 1065, 1067.]

Appeal from Superior Court, Forsyth County; Moore, Judge.

Action by C. W. Parker against J. B. Fen-wick and Catharine Fenwick. From a judgment for defendants, plaintiff appeals. Affirmed.

This action was brought by plaintiff against defendants, J. B. Fenwick and his wife Catharine, for the purpose of subjecting certain real property, or a portion of the purchase money paid therefor, to the payment of a judgment recovered against the male defendant. The pleadings and verdict of the jury disclose the following facts: Plaintiff recovered a judgment against defendant Fenwick for $625 on September 11, 1905. While the action, in which said judgment was rendered, was pending, plaintiff sued out and levied upon a house and lot in Salem, N. C, a warrant of attachment. The property was conveyed by W. H. Clinard to the feme defendant February 15, 1904, in consideration of $1,200. Of this amount $725 was paid by the feme defendant and $500 borrowed by her from the Wachoria Loan & Trust Co. secured by mortgage. The property was, by an arrangement made between the parties, sold and the mortgage debt paid. The balance of the purchase money, some $700, is held by Jas. S. Dunn to await the determination of this action. The plaintiff alleges that the $700 paid was the property of the male defendant, and was transferred to his wifewith intent to defraud plaintiff, and that his intent and purpose was known to and participated in by her. The jury found that, at the time the money was paid to feme defendant, her husband was insolvent. The jury found against plaintiff on the allegation of fraud. For the purpose of establishing this allegation, plaintiff introduced evidence tending to show declarations of Fenwick, made to the receiver of certain property involved in the first suit, that he expected to get some money from his father's estate; that he did not intend to pay plaintiff's debt; "that he was going to put the money where they could not get it"; that during the month of February, 1904, Mrs. Fenwick deposited in bank sums aggregating about $1,200; that defendant Fenwick received from his sister's estate about $1,200, which he turned over to his wife; that this was the same money deposited by Mrs. Fenwick; that defendant Fenwick contracted for the purchase of the house, Clinard not knowing Mrs. Fenwick in the transaction; that the deed was made to her by his direction. Plaintiff offered to introduce certain letters written by Fenwick to Dunn, who had the property in charge for the purpose of renting—said letters bearing date from May 1 to July 10, 1905. These letters, upon Mrs. Fenwick's objection, were excluded. Plaintiff excepted.

Defendants introduced evidence tending to show that Mrs. Fenwick received from her husband's father $550 as a bridal present; that she made some $480 from a store which she owned and conducted, and some $300 saved out of money given her for family expenses, by dispensing with servants and doing her own work; that he borrowed from his wife $1,200 and repaid same from amount received from his sister's estate. Both defendants testified in regard to these transactions. They also testified that the amount deposited in the bank by Mrs. Fenwick was the same money paid her by her husband, in discharge of the amounts borrowed;...