Schick v. Levine

Wiest, J. This is a bill in aid of execution to reach the claimed interest of defendant Louis Levine in property held by him and his wife, Sarah Levine, by the entireties. In the circuit the bill was dismissed and the case is here by appeal of plaintiff. , Plaintiff endeavored to make a case by calling defendant Louis Levine as a witness. Mr. Levine’s testimony was to the effect that his wife paid the consideration for the property and this was also shown by Mrs. Levine’s brother, an attorney, who was called as a witness by the defendants. Plaintiff invokes the statute, Comp. Laws Supp. 1922, § 12897, placing the burden of proof upon defendants to show that the holding of Mrs. Levine was in all respects bona fide and not as a trustee of the judgment debtor. The prima facie case of plaintiff, resting upon the fact of judgment and levy, “winked out” when the proof came into the case. *597 At one time Mr. Levine had an interest in some other property, bnt foreclosure before he became indebted to plaintiff cut it off. In argument it was claimed that after such foreclosure and by reason of a promise a gift was made to the defendants. The record is not satisfactory upon this point. If such a gift, by other than her husband, was made to Mrs. Levine and enabled her to acquire the property in suit, and she consented to take title thereto in the names of herself and husband by the entireties, it was no fraud upon her husband’s creditor. It would be of no benefit to the profession to state the testimony. Plaintiff failed to make a case and the decree in the circuit is affirmed, with costs to defendants. North, C. J., and Fead, Fellows, Clark, Potter, and Sharpe, JJ., concurred. McDonald, J., did not sit.