Gicker's Administrators v. Martin

The opinion of the court was delivered, by Woodward, C. J. Before the Married Woman’s Act of 1848, marriage was a gift to the husband of the wife’s chattels in possession, and of her power over choses in action. If he exercised the power thus conferred upon him, and reduced the choses into possession during coverture, they became as absolutely his property as the rest of his wife’s personal estate, unless, indeed, he accompanied the reduction into possession with declarations importing his intention to stand as trustee for his wife. In the absence of such declarations, however, the legal presumption which attended reduction into possession was, that the husband intended to exercise his marital rights, and if the wife would set aside this presumption, the burthen of proof was upon her. But all this was changed by the Act of 1848. Thenceforth marriage was a gift to the husband neither of her chattels in possession, nor of her power over choses in action, but on the contrary every species and description of property owned by a single woman was to continue to be her property as fully after marriage as before, and all property which should accrue to a married woman during coverture was to be owned, used, and enjoyed as her separate property. The statute thus destroyed one great characteristic of the marriage relation, and took away the presumption which at common law attended his accession to her estate, and it shifted the burthen of proof to his shoulders. If a husband receives the money or goods of the wife, the law, since the statute, presumes him to have received them as her trustee or agent, and if he would make title in himself he must prove a purchase or a gift. And it is immaterial that the marriage was prior to the statute, or that the wife’s estate had descended or vested before the statute: if the receipts by the husband be under the statute, the wife’s title is unimpaired, and his liability to account is fixed: Mellinger v. Bausman, 9 Wright 522. [141] The inevitable conclusion from this is, that a bond or other contract made by a husband to or with a trustee of his wife for money received from her estate, since the statute, is founded on a consideration that is not only legal and valuable, but meritorious — ■ one which will be enforced against creditors of the husband and all other parties. Equally clear is it that such a bond or contract for moneys reduced to the possession of the husband, before the statute, is voluntary and without legal consideration, and will be set aside in behalf of creditors as a fraud upon their rights. This distinction- was well taken, and illustrated in Johnston v. Johnston, I Casey 450, and the fault of the ruling below was, that the cause was not put upon this distinction before the jury. It is strongly alleged, and with apparent support in the evidence, that part of Mrs. Haldeman’s money came into her husband’s hands prior to the Act of 1848, though the greater part seems to have been received subsequently to that enactment. In respect to that which was received before the statute, there were no declarations, as we understand the proof, to qualify the possession of the husband, and his bond for that money, made years afterward, was without consideration, and in fraud of creditors. It was part of his own proper estate, and as such liable for his debts, and could not be given to his wife, though it came from her estate, anymore than he could give it to any other friend to the postponement of creditors. But in respect to so much as was received since 1848, the bond was well executed, and the attention of the jury should have been directed to this discrimination. The general doctrines of the law were well stated by the learned judge, nor was this distinction wholly overlooked by him, but he did not make it operative in the formation of the verdict. On the contrary, he submitted the cause on the general question, whether the bond was honestly made to secure Mrs. Haldeman for moneys which she had advanced to her husband upon his agreement that she should be repaid. This was too comprehensive a submission of the case, for unless there was -evidence of the husband’s agreement in respect to moneys received before 1848, made at the time of their receipt, the jury should have been instructed that the bond was void in respect of such moneys; and in respect to the moneys received since 1848, it was error to lead the jury to leave the bond on the husband’s agreement to refund, because, we repeat, the effect of the statute was to raise a legal presumption that the wife’s money, received after and under the statute, was received for her use, and, without an attending promise of repayment, a subsequent bond to secure her would be good against the husband’s creditors. Under the evidence the cause could be submitted properly only by keeping the distinction created by the statute vividly before the jury. [142] Rut suppose they should find the consideration of the bond to be good in part and ill in part, what would be the effect upon the instrument ? A consideration that is malum in se, or which riolates a statute imposing a penalty, or where a good and void sonsideration are so mixed in a contract that is entire that there san be no apportionment, in all such cases the bad consideration infects the whole contract, and no part of it can be enforced; but where the transaction, not malum in se, nor violative of a penal statute, is of such a nature that the good part of the consideration can be separated from that which is bad, the courts will make the distinction; “ for the common law doth decide according to common reason, and having made that void that is against law, lets the rest stand.” There can be no difficulty in the present case in distinguishing between the sound and unsound parts of the consideration of the bond in question, if, indeed, any part of it be ill. Let the jury ascertain how much of the bond represents money received by the husband before 1848, and treat the instrument as fraudulent and void as to so much; but if the residue fairly represents money received from the wife’s estate since 1848, let it be enforced for so much. Having thus disposed of the material question upon the record, it only remains to notice two bills of exception, which are the subjects of the first and second assignments of error. We cannot doubt that Dickinson was a competent witness. The fund for distribution, whatever the event of this feigned issue, would not reach his lien, and he was not a party to this proceeding. Eor these reasons he was manifestly competent. Gates v, Johnston, 3 Barr 54, is supposed to be an authority against this ruling, but it is material to observe that the judgment-creditor there was held competent. The question was ruled upon the ground that he had assigned his judgment, but quite as good, if not a better reason would have been that he was not a party to the issue and could take no benefit from the verdict. If that ease were decided in favour of the competency of the witness on the weaker reason, it surely-furnishes no objection to deciding this case the same way on the stronger reason. But we do not see how the declarations of the husband, Haldeman, as proved by Mengel, could have been thought relevant to this issue. This was not an action of conspiracy against the husband and wife, but it was a feigned issue in process of distribution of moneys, to try the validity of a judgment which the wife held against the husband, and to this issue he was not a party. On what principle, then, could his declarations be evidence against his wife ? Counsel argue that they must be admissible, because he was [143] precluded by the marriage relation from being a witness for or against his wife. But if the pblicy of the law would exclude his sworn testimony, much more his mere ex parte declarations, especially when they have no necessary relation to the fact under investigation. The husband’s plans and schemes to delay and hinder his creditors was not the question on trial, but the question was, how much of his wife’s estate he had received and when it came into his hands. On this twofold question it is not perceived that Mengel’s testimony had any bearing, unless, indeed, it were favourable to the defendant, and, in so far as it was favourable to the defendant, the admission of it furnishes no ground for reversal. The judgment is reversed, and a venire facias de novo is awarded.