Zinn v. *(Green
| Decision Date | 24 June 1889 |
| Citation | 32 W.Va. 447 |
| Parties | Zinn v. Law.*(Green, Judge, absent.) |
| Court | West Virginia Supreme Court |
Husband and Wife Gifts.
Where a wife delivers money or property of her own to her husband, which he uses in his business, the presumption is, that such delivery was intended as a gift; and in order to constitute such delivery a loan as rgainst the creditors of the husband, the wife must prove an express promise of the husband to repay, or establish by the circumstances, that it was a loan, and not a gift.
2. Husband and Wife Gifts.
When the facts and circumstances tend to show, that a gift was intended, and that the husband used and dealt with the property as his own, the mere parol testimony of the husband and wife of a private understanding between themselves, that the transaction was by them considered or intended as a loan to the husband by the wife and not a gift, will not as against the creditors of an insolvent husband rebut the presumption of a gift.
T. E. Davis for appellant.
Schilling $ Pendleton for appellee.
Snyder, President:
Suit in equity brought in September, 1886, in the Circuit Court of Calhoun county by Thomas G. Zinn against L. F. Law and Nancy E. Law, his wife, to subject a tract of 148 acres of land in said county to the payment of a judgment for $252.68, recovered by him in said court at its June term, 1886, against tbe defendant, L. F. Law.
The bill avers, that the debt upon which said judgment was recovered, was contracted by said Law in March, 1882, and that at that time said Law was the owner of a steam saw-mill, engine and fixtures, and that he continued to own and operate said saw-mill, until about the time the plaintiff instituted his action at law on said debt; and that the said Law for the purpose of hindering and defrauding the plaintiff entered into a written agreement with one Mary Hays, dated November 23, 1885, by which he traded said saw-mill to said Hays for the said 148 acres of land, and $600.00 in lumber and money, binding said Hays therein to convey said land to his wife, the defendant Nancy E. Law; that subsequently by deed dated December, 1885, said land was conveyed to said Nancy. The bill then avers, that said conveyance was voluntary as to the said Nancy and made for the purpose of hindering, delaying and defrauding the plaintiff and other creditors of the said Law, and prays, that said land may be held liable for and sold to pay the plaintiff's said judgment etc.
The defendant Nancy E. Law, by her answer denies, that said conveyance to her was either fraudulent or voluntary, but on the contrary avers, that she is the bona fide owner thereof and paid a valuable consideration therefor; and then proceeding to state the consideration and the manner, in which she acquired the land, says, that she became the wife of L. F. Law in the year 1868, and that they have lived together as man and wife ever since; that in the year 1879 she received from her father, Henry Steinbeck, $500.00; that in 1881 she received from her father-in-law, Andrew Law, $100.00; and that prior to that time she received from her uncle, Christian Steinbeck, $400.00; that about the year 1880 her husband under an agreement with her purchased of one Rollins a steam saw-mill, engine etc., at the price of $1,100.00, upon which Thomas E. Davis had a lien for about $800.00. which her husband agreed to pay, and the other $300.00 of the purchase-money was furnished by her upon an agreement with her husband, that the said saw-mill should be her property; that soon after the purchase of the said saw-mill she furnished to her husband the further sum of $200.00, which was the residue of the money she had gotten from her father in 1879, to be used in making repairs on said mill; that in the year 1879 her husband bought on credit from one Ireland an interest in a grist-mill, which he traded to one Leggett for a tract of land; that with her consent her husband traded said land to Thomas E. Davis in payment of the lien held by him on the said saw-mill, and the money due to Ireland for said land was paid in sawing and work done at the saw-mill for Ireland and others; that said sawmill, engine etc. were entirely paid for with her separate means and the increase from its investment, and no part of the purchase-money was paid with the money or means of her husband; that after this saw-mill had been thus paid for by her, it was traded for another saw-mill, and $200.00 boot paid with her means; that in 1882this last-named sawmill was removed from Ritchie to Calhoun county, where in November, 1885, it was traded by her husband as her agent for the tract of 148 acres of land in controversy, and said land was conveyed to her as her separate estate; that by an oral agreement she made her husband her agent to handle and invest her money in all the aforesaid trades; and that he did not either directly or indirectly furnish any part of the means, which was paid for said land, save his own ser- vices in making said trades and operating said saw-mills, but that the same was paid for by her own separate means derived as aforesaid from her father, uncle and father-in-law, and the proceeds of its investment. She further avers, that the...
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