Mulley v. Shoemaker

Opinion by Mr. Justice Williams, The important question presented by this appeal is that which is raised by the first assignment of error. The action is ejectment by a purchaser at sheriff’s sale upon a judgment against George H. Shoemaker. The defense alleges that the title to the lot in controversy was in Mrs. Shoemaker, the wife of the defendant, and that it was never in the defendant. In support of this line of defense, evidence was given tending to show that Mrs. Shoemaker negotiated the purchase, and borrowed the money which she paid upon it from a relative. The good faith of this purchase was attacked by the plaintiff, who showed that Shoemaker had sold his own house and lot just before the judgment was recovered against him for $1,600, which was paid to him in cash, and that some of this money had been paid to the relative from whom Mrs. Shoemaker claimed to have borrowed the money used by her in the purchase of the lot now in question. The question in the case was whether Mrs. Shoemaker had shown a title obtained in good faith by the investment of her separate moneys, or whether she held for her husband, having used directly or indirectly his money in effecting the purchase. Upon this question the learned judge instructed the jury that if she made the purchase with her own money exclusively she acquired thereby a title good against her husband and his creditors, but that if she connived or colluded with him in the purchase of the property by using any of the money which he received for his house in Green Ridge, in payment of the purchase money, then the plaintiff was entitled to a verdict. “ If on the other hand you find the wife’s hands are clean, even though the husband may have sold his property for the purpose of hindering and delaying his creditors, then your verdict should be in her favor, because she is not responsible for his misdeeds unless she joins in them.” But he said much more upon'this subject, and, omitting all reference to collusion between the husband and wife, told the jury plainly that if the husband’s money went into the purchase of this lot the plaintiff [591] ought to recover, and that the burden of showing that it did not was upon her. He said: “ She must show she obtained the money from some other source than from him or through him. If she fails to overcome that burden, then prima facie his money paid for it. But if you fail to find from the evidence in the case that his money went into it, then even if he sold his property at Green Ridge for the purpose of cheating his creditors, the wife might still be entitled to recover.” When we consider all the learned judge said to the jury upon this subject, we do not feel that they were misled, or left without adequate instructions. The good faith of the purchase by the wife with her own property or credit was properly made the turning point in the cause. This was correct. The jury may have erred, but it does not seem that any responsibility for such error, if error there was, rests upon the learned judge. The assignments of error are not sustained and the judgment is affirmed.