Krupp v. Scholl

Coulter, J. It is conceded that an assignment by the husband, for a valuable consideration, of the wife’s chose in action, is equivalent to a reduction into possession, and therefore transfers the right. Because, where the assignment is without [195] fraud, it is an unequivocal act of dominion by the husband, with intent to make the subject-matter his own. But these general principles must be considered in connexion with the character and relations of husband and wife, ás established by nature and confirmed by law — the one owing protection, support, kindness; the other owing submission to all lawful commands — a,nd mutually bound to all gentleness and courtesy. When the husband, however, deserts all his duties and his'wife together, and seeks to use principles established for a very different purpose, merely to defraud his wife, and strip her of all that remained for her support, the law assumes a different aspect, and regards the rights of the wife as within its protection. In support of this principle, I cite 1 Rawle, 279; 1 Barr, 445; 9 W. 90. The testimony, therefore, of the pendency of the divorce at the time of the assignment, the total desertion of the wife, the worthless character of the husband, with the other circumstances mentioned in the bill of exceptions, were all properly admitted in evidence, as conducing to prove that the transaction between the husband and wife was merely colourable, and with a view to defraud her of her chose in action before a divorce was procured. In a question of fraud, the rule of evidence is very broad: Kauffman v. Swar, 5 Barr, 230, and Mitchell v. Kintzer, Ib. 216. The. mere circumstance of the bond being in the name of the husband, is of no great moment. The chose was unquestionably that of the wife, and would have survived as such to her. The instrument was express to be for her use, and on account of her distributive share of her father’s estate. The bond could not have been taken otherwise than in the name of the husband. But-he was expressly nominated as her trustee, and, therefore, taking the bo'nd in that way was no act of absolute dominion over the fund, nor manifested, in fact or in law, any legal intention to convert it into his own property. Judgment affirmed.