Hackett v. . Shuford

Ashe, J. This narrows down the case on the appeal to the question whether the land in controversy was bought by B. F. Petty with money'which was the separate property of Cynthia, his wife, and if so, whether there was an agreement at the time of his receiving the money between him *149 and Cynthia that it should be invested in the land in controversy. There was certainly some evidence, sufficient we think, to be left to the jury, that the Gilreath land was purchased by B. F. Petty with money which he had received from the sale of the lands belonging to the Bryan estate, in which his wife had an interest. But it does not follow that the money so received by her husband was her separate property. The land was sold and the deed was executed by Petty and his wife Cynthia, Nancy Bryan and others. The consideration $as $6,600, of which Cynthia’s share was about $1,600. This amount it is insisted by the defendants was paid to her husband. Admitting that to be so, how did he hold it ? As trustee for his wife, or in his own right as husband by virtue of his marital rights? If the transaction had taken place since 1868, it may be that the money received was held by the husband in trust for his wife, as her separate estate. But this transaction occurred before the constitution of 1868. And under the law, as we understand it to have existed, when money was received by a husband from the sale of his wife’s real estate, it belonged to the husband absolutely unless at the time he received it, he promised the wife to repay it, and obtained possession of it upon the faith of such promise. In Plummer v. Jarman, 44 Md., 637, if was held that, “the money arising from the sale of the wife’s inheritance, was not her separate estate, as it would be now under the provisions of the Code; but on the contrary it was subject to the control of the husband by virtue of his marital rights having attached ; the money received by him was at his disposal absolutely, and any mere promise that he may have made to his wife was purely voluntary and without consideration.” In Label v. Slingluff, 52 Md., 132, the court held that the money received by the husband from the wife’s real estate, before the Code, became the absolute property of the husband, unless at the time he received it, he promised *150 the wife to repay it, and obtained possession of it .upon the faith of such promise. In this state in the case of Temple v. Williams, 4 Ired. Eq., 39, which was a bill in equity for the conveyance of a tract of land, the equity set up in the bill was that the complainant was the owner in fee of a tract of land, and her husband proposed that they should sell her land and invest in the purchase of another tract more desirable, and take the deed in her name, but the husband purchased the other tract with the proceeds of the sale of her land and took the deed to himself, and died before conveying any part thereof to her. Chief Justice Ruffin, who delivered the opinion of the court, said : “It is true that a husband and wife may in equity deal with each other in respect to her inheritance, but it is extremely difficult to do so with any security to her, without the intervention of a third person as trustee, because it is hard to tell in many eases, whether she means to stand upon her separate rights, or to surrender them to him; and therefore when she and her husband turn her land into money, and she does not place her money in the hands of some third person for her, and as her separate property, but suffers the whole to be paid to him, the clearest proof is requisite to rebut the presumption that it was paid to and accepted by the husband for himself, and not as trustee for his wife.” In Dula v. Young, 70 N. C., 450, and Smith v. Smith, Winston’s Eq., 30, the court came to different results from that reached in the above cited cases, and gave relief to the wife, whose money arising from the sale of her land, had been used by the husband in the purchase of other lands in his own name. But in each of these cases the' equity of the complainants was put upon the ground of an express agreement between the husband and wife, that her land might be-sold and the money invested in other lands for her benefit. In the former case the agreement was that if the wife would *151 join the husband in the conveyance of a tract of land descended to her from her father, he would convey to her another tract in lieu of the one conveyed. In the latter, the agreement was that the wife would consent to the sale of land held in her own right, upon her husband’s agreeing that he would convey to her, as a consideration for her land, another tract, or slaves of equal value with her land, or in some other way secure her from loss. In putting the relief granted in these cases upon the ground of the agreement between the husband and wife, these decisions sustain the opinion of Chief Justice Ruffin in the ease of Temple v. Williams, supra., if the legal opinion of so great a jurist could ever need support. But our case is distinguished from those cited, in the particular that there was here no evidence of any agreement between B. F. Petty and his wife, Cynthia, at or before the time he received her money, that he would invest it in other lands. The proof falls short of establishing any such agreement. Taking the testimony of Julia Shuford, which is the strongest evidence offered by the defendants in regard to the use of the money received by Petty from the Bryan estate, and it tended only to prove the fact that the money received by her father was invested in the purchase of the Gilreath laud. She speaks of no agreement, but that her mother, Cynthia Petty, requested her father, B. F. Petty, to invest the money in the land, remarking, “that it would be of some benefit to her children.” The witness, Jordan Petty, testified to no agreement, but that he heard a conversation between Petty and his wife and daughters, and the wife said to her husband, “you and the children want to run through all my money. I want you to take it and buy land to do me and the children some good.” The testimony of Peggy Rosseau is not more to the point. She stated that sometime after the Bryan land was sold, about thirty years ago, she heard the old lady say, “ I *152 want my money put in landher husband asked her* “what kind? Do you want my children to settle in this poor country ?” “ I want you to go and buy land with it.” This is the substance of the testimony offered upon the point, and in our opinion it does not tend to prove an agreement between Petty and his wife at or before the time of receiving the money, that he should invest it in land for her benefit. She requested that the money should be invested in other land, just as she might have done if the money had belonged to her husband in his own right. She wished land bought that it might be of benefit to her and the children. No wish was expressed that the land should be purchased in her name. The money was invested in the land in the name of the husband. The purchase enured to the benefit of herself and children. It is to be presuined she was satisfied with it as no complaint was made by her. The land was afterwards sold for a price considerably in advance of the amount paid by him for it. He and his children reaped the benefits and they have acquiesced in the transaction for thirty-five years. We concur with His Honor that there was no evidence to be left to the jury in support of the defence set up by the defendants. We have not considered other positions taken and urged in this court by the defendants, as it appears from the “statement of the case” the sole defence in the court below was rested upon the facts, that the money used by B. F. Petty in the purchase of the land in question was the separate estate of his wife Cynthia, and an agreement between them that it should be invested in this land for her benefit. Nor have we taken into our consideration the respective rights of the plaintiffs inter sese, in the land in controversy. That is a matter to be inquired of upon a reference for that purpose. *153 There is no error in the judgment of the superior court. The case is remanded to that court that further proceedings may be had in conformity to this opinion. No error. Affirmed.