Parker v. . Fenwick

CoNNOR, J. The plaintiff’s right to recover was dependent upon sustaining his averment that the defendant Fenwick transferred the .amount received from his sister’s estate to his Avife voluntarily or, if in payment of an indebtedness, with an actual intent on his part, known to her, to defraud his creditors. It was shown that defendant Fenwick owed plaintiff $625 and that he was insolvent at the time the money Avas transferred or, as he claims, paid to his wife. These conditions imposed upon the feme defendant the burden of show *529 ing that her husband owed her a valid debt — one for the recovery of which she could have maintained an action against him and enforced payment — and that the money was received by her in discharge of said debt. Satterwhite v. Hicks, 44 N. C., 106, and many other cases. This is too well settled and too consistent with reason and common honesty to require the citation of authority. His Honor so instructed the jury, and in the general instruction further said: “If the jury shall find from the evidence that J. B. Eenwick was insolvent and was owing the plaintiff $625 and interest, that the plaintiff had a suit pending in this court for the collection of his debt, and under such circumstances transferred this money to his wife in payment of his debt to her, but with intent to hinder, delay or defraud the plaintiff in the recovery of his debt, the wife participated in this purpose of his, or if she knew it was being done by him to hinder or delay the plaintiff in collecting his debt, then this transfer would be fraudulent, even though he actually owed his wife the money.” This, we think, measures up to the standard required by the law. The other phase of the question is presented by the charge given in response to the request of defendant. The jury having found that Eenwick did not contribute the $725 to the purchase of the property with intent to hinder, delay or defraud his creditors, no question of notice or knowledge on the part of his wife arose.. We do not well see how his Honor could have instructed the jury, as a matter of law, to answer the issue for the plaintiff. If Mrs. Fenwick received the amount claimed as a bridal present it was her separate personal estate. The same is true in respect to the amount which she claims to have made in conducting, a store. These two sums aggregate more than the amount invested in the lot, rendering it unnecessary for us to consider the efféct of the testimony in regard to the amount which she claims to have saved from her household expenses. If she loaned to her husband the m'oney received as a bridal present and the profits from *530 her business be thereby became indebted to her and had the legal right to pay her the debt, which she could enforce in an action against him. George v. High, 85 N. C., 99. It was for the jury to say what the real truth of the matter was. The Judge put the burden upon the defendants and they carried it successfully to the verdict. The declarations of the husband prior to the payment of the money were properly admitted. After that they were incompetent. He could not, after paying her the money and after the lot was conveyed to her, affect her rights by ex parte declarations. Upon an examination of the entire record we find no error. Let it be certified that there is No Error.