Jack v. Kintz

Opinion by Me. Justice McCollum, There are but two questions involved in this appeal. The first is whether a married woman who receives a conveyance of land is required in a contest with her husband’s creditors respecting the possession and ownership of it to prove that she paid for it with her own money, or that it was a gift to her from her grantors. In the case before us the defendants claim to have a good title to the land in dispute by virtue of the deed of it from John R. Albright and Minnie M. Albright to Susan Brubaker, and the plaintiff claims to have a like title to it based on a judicial sale of it as the property of John R. Albright. It appears to be conceded that Milton K. Brubaker was the owner' of the property on the 4th of January, 1888, and that he and his wife, Susan Brubaker, on that day made and delivered a deed of it to their married daughter Minnie M. Albright, who on the 24th of March, 1888, united with her husband in a con [578] veyance of it to her mother. The consideration named in each deed was $6,500 and each was subject to the payment of $2,000 of that sum to Milton K. Brubaker on or before the 15th of April, 1889. After the deed was made to Minnie M. Albright, and before the deed was made to Susan Brubaker, Annie K. Fleming obtained a judgment against John R. Albright for $7,889 and on this judgment an execution was issued by virtue of which the land in dispute was seized and sold by the sheriff. If John R. Albright owned the land when the judgment was obtained, his title to it was divested by the sale and the plaintiff is the present owner of it. In other words the plaintiff has whatever title Albright acquired by the deed from the Brubakers to his wife. It is a familiar and well settled principle that in a contest between a married woman and the creditors of her husband concerning the ownership of property which she claims to have purchased during coverture she must “prove distinctly that she paid for it with funds which Ayere not furnished by her husband : ” Gamber v. Gamber, 18 Pa. 363. This principle or rule “ applies to purchasers of real estate as well as personal: ” Keeney v. Good, 21 Pa. 349; Walker v. Reamy, 36 Pa. 410; Baringer v. Stiver, 49 Pa. 129. The rule thus established has been upheld in a long line of cases and distinctly recognized and enforced in the recent case of Bollinger v. Gallagher et al., 170 Pa. 84. As it appears from the circumstances connected with and surrounding the transaction in question, and apart from the Fleming judgment, that the grantee had actual notice of the husband’s equity, Ave cannot say that the learned court below erred in holding that in the absence of eAÚdence that the property was purchased by Minnie Albright with her own means the plaintiff was entitled to recover. We do not think that the rule we have considered is in any degree affected by the act of June 3, 1887, or by the act of 1893. These acts enlarge the capacity of a married Avoman to contract, and to acquire and dispose of property, but they do not remove the burden winch rests on her of proving title to the property she claims against her husband's creditors. The remaining question is whether the learned court below erfed in rejecting the offer contained in the sixth specification.. It was an offer to prove by John R. Albright that his wife, [579] Minnie M. Albright, paid for the property with her own money. The only objection to it was that the person by whom it was proposed to prove it was not a competent witness. If there was any warrant for the objection it must be found in clause “ e ” of section 5 of the act of April 23, 1887. We are unable to find anything in the record, in the evidence submitted, or in the offers of evidence made on the trial, fidiich brings John R. Albright within any of the excluding clauses of section 5. ' He is not “ a surviving or remaining party to the thing or contract in action,” or to the suit, and he has no interest adverse to any right of the deceased party who was at most, according to the record, an intervening purchaser who devised the property to the plaintiff’s vendor. The suggestion that if Minnie M. Al-bright was the owner of the property, her husband has an estate by the curtesy in it which he is interested in maintaining, over looks the fact that whatever title he had in it passed to her mother by the deed in which he joined. We think that John R. Albright was a competent witness as to all relevant matters, and that the conclusion we have reached in respect to his competency is in accord with the decisions of this court, among which we may mention Brown v. Carey, 149 Pa. 134; Dixson v. McGraw, 151 Pa. 98; Gerz v. Weber, 151 Pa. 396; Smith v. Hay, 152 Pa. 377; Tarr v. Robinson, 158 Pa. 64, and Smith v. Rishal, 164 Pa. 181. We cannot say that, in the absence of evidence showing or tending to show the purchase of the property by Minnie M. Albright with her own means, it was error to reject the offer of her deed to her mother. We sustain the sixth specification and overrule the first, second, third, fourth and fifth. Judgment reversed and venire facias de novo awarded.