Ward v. Oliver

• Decision Date: 07 January 1902
• Citation: 129 Mich. 300,88 N.W. 631
• Court: Michigan Supreme Court
• Parties: WARD v. OLIVER et al.

88 N.W. 631

129 Mich. 300

WARD v. OLIVER et al.

Supreme Court of Michigan

January 7, 1902

Appeal from circuit court, Montcalm county, in chancery; Frank D. M Davis, Judge.

Bill by Michael Ward against John E. Oliver and others in aid of execution. From a judgment for defendants, plaintiff appeals. Affirmed.

Dunham & Malcolm, for appellant.

C. L Rarden (George E. & M. A. Nichols, of counsel), for appellees.

HOOKER J.

Complainant's bill was filed in aid of an execution to set aside a deed from defendant John E. Oliver to his wife, Augusta, who was before her death, a party defendant. A prima facie case was made by complainant under the statute (Comp. Laws, � 10,203). Thereupon defendant John E. Oliver was called as a witness by counsel for the defendants, and testified fully to dealings between himself and wife whereby the deed was made and accepted in payment of a debt due from him to her for borrowed money. The bill was dismissed, and the complainant has appealed.

Counsel for complainant seem to concede that, if Oliver's testimony was competent and true, the judge was justified in dismissing the bill. See brief, page 4. They insist, however that the husband's testimony was inadmissible under the statute (Comp. Laws, � 10,213), which provides that 'a husband shall not be examined for or against his wife without her consent.' If this were all of that statute, it would not be a formidable obstacle to the introduction of this testimony, inasmuch as, the wife being dead, it could not be said that the husband testified for or against the wife. By her death the reason for this rule had ceased to exist. There was no marriage relation to be disturbed by a possible controversy between spouses. There is another clause of the statute, aimed at confidential communications between husband and wife, viz.: 'Nor shall either [husband or wife], during the marriage, or afterwards, without the consent of both, be examined as to any communication made by one to the other during marriage.' Not only is this portion of the statute limited by its terms to communications, but the provision implies that the portion of the statute first quoted applies only during coverture. The later clause of the statute has been limited by the decisions upon it. In Hunt v. Eaton, 55 Mich. 362, 21 N.W. 429, it is shown that too broad a construction would nullify the exception to the first prohibition, relating to suits...