Tomlinson v. Matthews

• Decision Date: 21 March 1881
• Citation: Tomlinson v. Matthews, 98 Ill. 178, 1881 WL 10463 (Ill. 1881)
• Parties: AMANDA TOMLINSON et al.v.GEORGE A. MATTHEWS et al.
• Court: Illinois Supreme Court

98 Ill. 178

1881 WL 10463 (Ill.)

AMANDA TOMLINSON et al.

v.GEORGE A. MATTHEWS et al.

Supreme Court of Illinois.

Filed at Springfield Mar. 21, 1881.

APPEAL from the Circuit Court of Montgomery county; the Hon. JESSE J. PHILLIPS, Judge, presiding. Mr. R. MCWILLIAMS, and Mr. EDWARD LANE, for the appellants:

It is admitted by an agreement in the record, that at the time of the conveyance to Mrs. Tomlinson, and the hearing, the property was worth only $2000. The husband being justly indebted to her in that amount, the conveyance to his wife is not fraudulent. A debtor in failing circumstances may prefer one creditor and pay him in full to the neglect of others. Cross v. Bryant, 2 Scam. 43; Howell v. Edgar, 3 Id. 417; Powers v. Green, 14 Ill. 387; Wilson v. Pearson, 20 Id. 87; Finley v. Dickerson, 29 Id. 9; Hessing v. McCloskey, 37 Id. 344.

The husband and wife, since the Married Woman's act, as respects her separate property or estate, stand before the law as strangers. Patten v. Patten, 75 Ill. 451.

Money of the wife loaned to her husband, either before or after marriage, is a proper charge against him while living, and against his estate after his death. Whitford v. Daggett, 84 Ill. 144; May v. May, 9 Neb. 16; Logan v. Hall, 19 Iowa, 491; Huber v. Huber's Admr. 10 Ohio, 37; Wood v. Warden, 20 Id. 518.

A sale to a relative is not a badge of fraud. Nelson v. Smith, 28 Ill. 501; Cameron v. Savage, 37 Id. 172; Taylor v. Moore, 2 Randolph, 563; Patrick v. Patrick, 77 Ill. 560; Bump on Fraudulent Conveyances, 314.

Fraud must always be proved--it is never presumed. Wright v. Glover, 27 Ill. 430.

Mr. BEN. E. JOHNSON, and Mr. J. M. TRUITT, for the appellees:

As direct evidence can not be had, circumstances tending to prove fraud may be considered. Swift v. Lee, 65 Ill. 336.

A husband may convey property to his wife under the law of 1874, and the deed be good between the parties, but it may be fraudulent as to the creditors of the husband. Leopold v. Krause, 95 Ill. 440. The Revised Statutes of 1874, chapter 68, section 9, page 577, answers the question whether the wife as to her separate property can be a creditor of her husband, in the affirmative. It also answers the question whether the husband or wife, as to one conveying property to the other, stands before the law as strangers, in the negative.

The case of Whitford v. Daggett, 84 Ill. 144, and the other authorities cited by the plaintiffs in error, are all cases between the husband and wife, or her and the administrator of his estate, where the rights of third persons were not adjudicated.

Where a husband used the capital of his wife in his own name with her consent, she will not be allowed to interpose her claim as against the creditors of her husband. Hockett v. Bailey, 80 Ill. 75; Wortman v. Price, 47 Id. 22; Patton v. Gates, 67 Id. 164.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The general principle that a debtor in failing circumstances may prefer one creditor to the exclusion of others, when he does so in good faith and for a valuable consideration, has been often announced in opinions by this court. Cross v. Bryant, 2 Scam. 43; Howell v. Edgar, 3 Id. 417; Powers v. Green, 14 Ill. 387; Wilson v. Pearson, 20 Id. 87; Finlay v. Dickerson, 29 Id. 9; Hessing v. McCloskey, 37 Id. 342; Morris v. Tillson, 81 Id. 607.

In Patrick v. Patrick, 77 Ill. 555, we held the same doctrine to be applicable to cases of settlement by husband upon the wife, quoting with approval this language from 2 Kent's Commentaries, (8th ed.) 166, side page 174:

“The settlement made after marriage, between the husband and wife, may be good, provided the settler has received a fair and reasonable consideration in value for the thing settled, so as to repel the presumption of fraud. It is a sufficient consideration to support such a settlement, that the wife relinquishes her own estate, or agrees to make a charge upon it for the benefit of her husband, or even if she agrees to part with a contingent interest; but the amount of the consideration must be such as to bear a reasonable proportion to the value of the thing settled, and when valid, these post-nuptial settlements will prevail against existing creditors and subsequent purchasers.” See also, to like effect, 1 Bishop's Law of Married Women, § 735, et seq.; Barnwell's Exr. v. Lumsden, 24 Grattan, 443.

The common law theory, that the wife was deemed to be under the power and coercion of her husband, and her separate legal existence so merged in his legal existence that she was incapable, except in certain limited cases, of contracting with him or with others, has been completely changed in this State by legislation. And we have said, by virtue of this legislation, where “her estate is under the statute, the common law rights of the husband, in respect of the property of the wife, can have no influence whatever, simply because the statute has abrogated them. The relation of the parties may be considered with reference to the weight to be given, or inference drawn from, their conduct and dealings, with regard to her separate property. In the determination of a claim of the wife upon the husband, like that here involved, it is indispensable for the judicial mind to become fully conscious of the change wrought by the statute, and that husband and wife, as respects her separate estate, stand before the law as strangers. Hence she may, as has been repeatedly decided by this court, make her husband her agent to collect debts due her, to receive from others the income of her estate, and to manage and control it, in her name, and, under this principle, his dealings with it will be presumptively in the character of agent. His receipt of proceeds and income, with her consent, will be in that character, and for her, and they will not, in deference to marital legal rights, thereby become his property. If the husband claim such income as a gift, or other legal transfer thereof, by the wife to him, the burden is upon him to establish his claim by evidence.” Patten v. Patten, 75 Ill. 451.

And, again, in Whitford et al. v. Daggett, 84 Ill. 144, where bill in chancery was brought by the widow against the heirs and representatives of the intestate to admit her as a general creditor of the estate for certain moneys lent to him by her before their marriage, and other moneys lent to him by her after their marriage, we said: “Since our statute of 1861, relating to the rights of married women, the husband does not, by marriage, acquire title to the money and personal property of the wife. * * Money of the wife loaned to the husband, either before or after marriage, is a proper charge against him while living, and against his estate after his death.” See also Hamilton v. Hamilton, 89 Ill. 349.

So, also, upon like principle, in VanDorn v. Leeper, 95 Ill. 35, we held that an agreement between husband and wife, whereby he was to buy land for the wife, pay for the same with money inherited by her as her separate estate, take a deed therefor in his own name, convey to a third person and have such third person convey to her, when executed, was free of legal objection, and completely vested the title in her.

And, in Tyberandt v. Raucke, 96 Ill. 71, where the only proof that a conveyance was fraudulent was the fact that it was made by an indebted wife to her husband, and they both testified that the conveyance was executed in consideration that the husband undertook to pay certain specified debts of the wife, which was not a grossly inadequate price for the property, and that he had since paid the same, we held there was not sufficient proof of fraud to defeat the husband's equitable title.

The necessary conclusion, from these authorities, is:

1st. The husband may prefer the wife, (she being a creditor) to other creditors, provided the preference is based upon a valuable consideration, and is made in good faith. 2d. As to the property of the wife, protected as her separate property by the statutes in force, in reference thereto, the husband occupies the same relation as does a stranger. She may sell it or loan it to him, or constitute him her agent for its management and disposition; but a gift of it by her to him will not be presumed, in the absence of proof to that effect.

Applying these principles to the facts in the present case, it is clear there is no ground to impeach the conveyance by Daniel Tomlinson to his wife, the appellant.

There is no dispute that the conveyance was made in consideration, and as a payment of two promissory notes given by him to her--one for $1000, and the other for $750. The $1000 note bears date July 6, 1872, is payable to appellant or order, one year after date, with interest from date at ten per cent per annum. The $750 note bears date August the 7th, 1876, and, likewise, is payable to appellant or order, one year after date, with interest from date at ten per cent per annum. The conveyances sought to be set aside bear date December 16th, 1878, and the payments, up to that time, made on the note, were inconsiderable, not aggregating to exceed $50, so that the amount then due, for principal and interest, largely exceeded $2000. By agreement of parties, it is a conceded fact that the property conveyed did not, at the time of the conveyances, exceed in value $2000, and it was of no greater value at the date of the trial in the court below.

Here, then, was a sufficient consideration for the conveyances, unless the promissory notes themselves have been impeached. We think the evidence, instead of impeaching the...