Wheeler & Wilson Co. v. Litwin

• Decision Date: 07 March 1899
• Citation: 57 N.J.E. 660,43 A. 1098
• Parties: WHEELER & WILSON CO. v. LITWIN et ux.
• Court: New Jersey Supreme Court

43 A. 1098

57 N.J.E. 660

WHEELER & WILSON CO.

v. LITWIN et ux.

Court of Errors and Appeals of New Jersey.

March 7, 1899.

Appeal from court of chancery. Suit between the Wheeler & Wilson Company and Litwin and wife. Decree for defendants, and complainant appeals. Affirmed.

John I. Weller, for appellant.

Thomas Anderson, for respondents.

PER CURIAM. Decree affirmed on opinion below.¹

COLLINS, DEPUE, DIXON, GARRISON, LIPPINCOTT, LUDLOW, ADAMS, BOGERT, and HENDRICKSON, JJ., for affirmance. MAGIE, C. J., and GUMMERE, VAN

SYCKEL, NIXON, and VREDENBURGH, JJ., for reversal.

VAN SYCKEL, J. (dissenting). On the 2d of December, 1895, Litwin became surety on a bond given to Wheeler & Wilson, the complainant, and made oath on the bond that he owned property at No. 157 William street, Newark. Judgment was recovered January 25, 1896, by the complainant on this bond, but, before judgment was entered, Litwin, through a third person, conveyed the said property to his wife, by deed dated December 23, 1895. The bill was filed to set aside this conveyance to the wife. The vice chancellor decided that the conveyance to the wife should stand as security to her for the sum of $500, which he found she had advanced to her husband to buy the property, and that it should be set aside subject to such lien for the benefit of the wife. The case clearly shows that the wife knew, when she furnished the money, that the title to the property purchased was taken in the name of her husband, and it was permitted to remain in his name until a short time prior to the rendition of the aforesaid judgment. In my judgment, the decree is erroneous in preferring the wife to the creditor. The wife put it in the power of the husband to defraud his creditor by holding himself out as the owner of the property. The creditor in this case relied upon the apparent ownership of the husband, and the wife is therefore estopped from setting up her claim. The cases are to that effect. Ruckelschaus v. Oehme, 48 N. J. Eq. 436, 22 Atl. 184; Ruckelshaus v. Borcherling, 54 N. J. Eq. 345, 34 Atl. 977, affirmed 55 N. J. Eq. 589, 39 Atl. 1113. Chief Justice Marshall, in Sexton v. Wheaton, 8 Wheat. 229, declares the law to be that "a wife who is herself the instrument of deception, or who contributes to its success by countenancing it, may, with justice, be charged with the consequences of her conduct." In application of that well-established doctrine, it was held in Besson v. Eveland, 26 N. J. Eq. 468, and...