Bangs, Bard & Co. v. Edwards

CLOPTON, J. The bill, which is filed by appellants as creditors of George "W. Edwards, proceeds on the theory, that the land which they seek to subject to the payment.of their demand, was purchased by him, and paid for with his individual means; and having thereafter become embarrassed, that he caused it to be conveyed to his wife, for the purpose of defrauding his creditors. The answers deny the allegations of the bill, as to the purchase and the charges of fraud. They aver that the land was purchased by Mrs. Edwards, and that the consideration was paid with her separate funds. The cause was submitted by complainants on the bill, answers, and note of Edwards attached as an exhibit to the bill; and by defendants, on the answers and their own depositions. No other witnesses were examined. The bill alleges that the purchase was made by Edwards in 1886, on a credit, and that the conveyance was executed October 27, 1887. The conveyance was made by the vendors to Mrs. Edwards, and recites as its consideration the sum of seven hundred dollars, paid by her to the grantors. If the allegations of the bill be true — that Edwards paid for the land, and secured a deed to be made in the name of his wife, after the debt of complainants was contracted — it offends their rights, and as to its validity and consequence does not differ from a conveyance directly from him to his wife. It is also conceded, that as Mrs. Edwards claims ownership by a purchase during coverture, the recital in the conveyance of the payment of a valuable consideration by her, is insufficient to support the deed in a contest between her and the existing creditors of her husband. In such case, the onus is on her to clearly and fully prove that she paid for the property with her separate funds. The sufficiency of the evidence by defendants to establish these essential facts, we shall determine by these principles. The facts on which Mrs. Edwards founds her claim of ownership may be summarized as follows: 1. The land was purchased, October 1, 1886, from Atkinson, Beed & Go., by Mrs. Edwards in her own name, at the price of seven hundred dollars, for which she gave, without her husband joining therein, two notes of three hundred and fifty dollars each, one payable May 1, 1887, and the other a few months thereafter. '2. Prior to the purchase, she let her husband, who was engaged in the mercantile business, have money to the amount of seven hundred dollars, to keep for her, with the [386] understanding that she could get it whenever she wanted to buy a home, or a tract of land. When the purchase was made, it was understood that her husband would pay her notes for the purchase-money, and that such payment should be in discharge of his liability. He paid the notes with goods from his store, Atkinson, Eeed & Co. having agreed to accept goods in payment at cash prices. 3. Mrs. Edwards, with the assent of her husband, commenced in 1877, or 1878, to retain her earnings by her labor and economy, and continued to do so until 1885. The money thus accumulated and retained was deposited in her name with a banker, and with Atkinson, Eeed & Co. All the money was subsequently loaned to the latter firm, and at some time thereafter was repaid by them. This was the money she gave her husband to keep for her. By the common law, which is presumed, in the absence of proof, to prevail in Georgia, where the parties resided, the earnings of the wife during coverture belonged to the husband. He can not give them to her, nor invest them for her benefit, to the prejudice of his existing creditors; but he has capacity and legal right to renounce his marital claim, and assent to her retaining them as her separate property, thus constituting a gift, which will be upheld against his subsequent creditors, unless assailable for intentional fraud. Pinkston v. McLemore, 31 Ala. 308; Carter v. Worthington, 82 Ala. 334. Positive evidence of such renunciation and assent is not requisite; like any other fact, disputed in the course of judicial proceedings, it may be established by circumstantial evidence, or inferred from the acts and conduct of the parties, when clearly proved, and the inference is manifest. And though the fact that the transaction is between husband and wife, calls for clearer and more convincing proof, and may be accorded controlling influence when accompanied by other suspicious circumstances, it does not, of itself, justify their discredit as witnesses. If the evidence clearly establishes the substantial facts as above stated, and there is no actual fraud, the conveyance to Mrs. Edwards is valid, and should be sustained against the claim of complainants. It is true, Mrs. Edwards’ testimony is somewhat general, not as specific as it might have been; and it may be, if it stood alone, we should regard it as insufficient. But her husband states the specific facts, all which accord with her general statements. There does not seem on the face of [387] their evidence any effort or desire to color or suppress material facts. Several of them, such as the deposits and loan of the money, and its re-payment, were susceptible of being disproved, and the testimony was accessible. Without being called for, the persons with whom the money was deposited, and to whom loaned, were designated, thus furnishing complainants the opportunity to contradict their evidence; and the disproof of one material statement would have cast suspicion on their entire testimony. No prejudicial presumption should be indulged, because of the omission of defendants to examine these persons, or to introduce cumulative or corroborating evidence, when no impeaching or contradictory proof was taken, or attempted to be taken, and the adverse party had full opportunity to do so. — Jackson v. State, 77 Ala. 18. It is said, the fact that Mrs. Edwards testified she knew nothing of the payment of her notes in goods by her husband, in face of the instrument respecting the sale of the land, which she took from Atkinson, Beed & Co., is entitled to weight in considering her evidence. Ordinarily this might be correct; but it appears that, after this answer was made, and her examination closed, the instrument in which Atkinson, Beed & Go. agreed to take payment in goods was voluntarily produced, and attached to the depositions of her husband. Its production, when it could have been easily suppressed, rather manifests a willingness to disclose the whole truth, withholding nothing material. We find nothing in the testimony, or the conduct of the witnesses, or in the circumstances, which should excite a doubt of the truthfulness of their testimony. The existence of the money is fully shown; and the renunciation of his martial rights, and Edwards’ assent to his wife’s retention of her earnings, clearly appears from the deposits and loan of the money in her own name, and his reception and keeping the same as her separate property. All this occurred, and the land was purchased, before the debt of complainants was contracted. We lay but little, if any, stress on the fact, that the notes of Mrs. Edwards were paid in goods from the store of her husband. Atkinson, Beed & Co. were also engaged in the mercantile business, and they agreed to receive goods in payment. If the payment in goods satisfied the notes of Mrs.. Edwards, and at the same time discharged his liability for the money obtained from her, it was a payment with her separate funds as effectually as if made in money,. IJnder such circumstances, it [388] is immaterial how he paid the notes. The conclusion is, that the essential and material facts are sufficiently proved. The complainants were not existing creditors, and the record fails to disclose any evidence of intentional fraud.- — Wing v. Roswald, 74 Ala. 346. Affirmed.