Bachman v. Killinger

The opinion of the court was delivered, November 4th 1867, by Woodward, C. J. — The court very plainly intimated to the jury, almost instructed them in terms, that Mrs. Bowman might make a gift of the bond to her husband, and that such a gift, once executed, would release the husband and his sureties from all liabilities on the bond; but in submitting the evidence of such a gift they characterized it as weak and unsatisfactory. The bond was patrimonial — made to the guardian of Mrs. Bowman for the balance of her share of her father’s estate, and was delivered to her by her guardian with instructions that she must keep it as her own separate property. The defendants insist that the husband’s possession of such a bond was evidence that the wife had given it to him. There was no direct evidence of the gift — no assignment or transfer in writing either formal or 'informal, and no witness to the gift. The court were asked to [418] instruct the jury that they ought to infer the gift from the fact of possession, taken in connection with the other two facts that the parties lived together amicably until Bowman fell into gross intemperance, and that she had given him and he had squandered all the money she had received from her father’s estate. We think the cause was put to the jury quite as favorably to the defendants below as they had any right to expect. The possession of the bond was not a conclusive circumstance. We have often said that the intimacy of the marriage relation is such, and that husband and wife do so habitually act as the agent for each other, that her possession of his moneys, securities and property is of itself very slight evidence of a transfer of the ownership, and when it is remembered that the husband is the master of the house his ■ possession of her chattels ought perhaps to he considered still less evidence of title in him. Nor is the inference of ownership strengthened by the circumstance of amicable relations, for these would be promoted by leaving her patrimony in her own hands, and would be endangered by his attempts to get it away from her. Still less is the inference of a gift strengthened by the circumstance that the husband had squandered her cash on his intemperance, for whilst she may have been persuaded to give him her ready money, or he may have obtained it by virtue of his power over her, every dollar of it that he wasted would make it less likely that she would give him the bond that represented all she had left. Besides all this, the possession which the husband had of this bond was very equivocal. Even in the lucid intervals of the madness to which his intemperance had driven him he could not tell where the bond was, he could only suggest the places in which it might be found, and it was at last found in a portfolio of which the wife must have had some sort of possession, for she produced it to be searched. Too much was attempted to he deduced from such a possession. The court submitted all the evidence to the jury, with intimations of opinion upon its effect as they had a right to give, and the jury having found against the gift, there is no just ground of complaint. The declarations of the husband were properly admitted, for they were evidence against himself, and they were submitted to the jury with a salutary caution. Even if erroneously admitted they were harmless, for independently of them the affirmative proofs failed to establish a gift. And this was what the defendants had undertaken to prove. It is argued that the bond being in possession of the husband the burthen of proof was on the wife, but we think rather that the bond being confessedly the separate property of the wife, the burthen of proving title to it in the husband was on the defendants. The surety was held to the same measure of liability as the [419] principal, and the evidence failing in the judgment of both court and jury to prove the principal released, the surety remains bound. The judgment is affirmed.