Goodfellow v. LeMay

The opinion of the court was delivered by Scott, J. The appellants recovered a judgment against one Baxter and one Goodfellow, who was the husband of the respondent. An execution was issued upon the judgment and levied upon certain lands as the community property of respondent and her husband, and this action was brought to restrain the sale of said lands on the ground of their being the separate property of the respondent. The judgment having been rendered in her favor, this appeal was taken. There seems to be no contention over the facts in the case. It appears that the lands had been purchased by the respondent’s husband of one Leary, and a deed taken in the husband’s name, and that in January, 1885, for the purpose of making a gift of said lands to his wife, the husband re-deeded the same to Leary and Leary deeded them to the respondent, the deed reciting that the lands were “ to be held to her separate use.” It is contended that the husband’s testimony,.as to his purpose in causing the lands in question to be conveyed to his wife, to the effect that he desired to make provision for her and the family against possible reverses, shows that the same was not intended as a gift [686] to her; but this, if material, could not control as against the expressed intention of the deed. Nor would the fact that the wife was not present when the deed was executed and was not consulted with regard to the transaction affect it; for the deed was made and accepted by her several years before the debt to the appellants was contracted. Consequently they could not be heard to' question it. But, aside from this, there was no proof of any fraudulent purpose or intention upon the part of the husband or his wife as against any one. We think the law, as applied to the conceded facts, clearly shows that the respondent was entitled to the relief given her. The appellants have asked us to re-examine the question as to the liability of the separate property of the wife for community debts. We have done so to the extent of considering the argument advanced thereon by the appellants, and are satisfied with the position heretofore taken by us. It is not contended that the debt was contracted for expenses of the family or for the education of the children, so as to he chargeable to her separate property under § 1414 of the General Statutes. Affirmed. Hoyt, C. J., and Dunbar, Anders and Gordon, JJ., concur.