Gilligan v. Lord

Loomis, J. It is clear from the facts found in this casé that William Gilligan, the husband of the plaintiff, by his deed of July 15th, 1881, intended to make a gift to' his wife both of the real estate conveyed and of his personal property. This gift he had’ a perfect right to make. He was not in debt, and this transaction was not affected in any way by fraud. The only question is, whether as to the personal property there was the delivery necessary to perfect a gift, and such a transfer of possession to the plaintiff as to make her title good against creditors. Whatever question there might be as to the sufficiency of the delivery if there had been no conveyance of the real estate, yet we think that with that conveyance the delivery was sufficient. The- deeds were put on record, and were notice to all the rvorld of the change of title. In Elmer v. Welch, 47 Conn., 58, where-personal property was sold with [567] the Leal, estate upon which it was kept, the court say with regard to the effect of the recorded- transfer of the real estateThis was notice to all the-world of a change of ownership; and the publicity of this change as to the principal thing is to be imputed in full measure to the change as to the personalty, the mere incident remaining in visible connection' therewith. The law did not demand either a permanent or temporary removal of the latter. Whoever saw it thereafter in the defendant’s possession and use upon the realty known to be his, became chargeable with knowledge that he held and used both by the-same right; and as all persons had knowledge .that Smith neither owned nor occupied the realty, whoever saw him thereon in charge of any part of the personalty was bound to presume him to be the servant of the defendant rather than the 'owner of the property. The publicity of the change is quite up to the standard established by this court.” It is true that it is here found that the plaintiff and her husband continued to occupj- the real estate as a homestead until after the property was attached; but the occupancy ■of the wife was none the less an occupancy because she shared it with her husband. It is also found that her husband continued to use and control the personal property as before, and so used and controlled it -down to the time of the attachment. But it is difficult to see how the wife could well have kept a possession and use of the property-distinct from her husband’s. It was necessarily on the premises occupied by them both, and naturally, and almost necessarily, under his care and subject to his use. Considering the nature of the property it is difficult to see how she could have kept it under her exclusive and visible control, except bjr withdrawing it wholly from family use, which could hardly have been required. While the relation of husband and wife gives special opportunities for fraudulent transfers of property, and therefore transactions between them are open to a special suspicion, yet this is only in relation to actual fraud. Where, as here, a transfer of property is made by a husband [568] to a wife in good, faith and without any fraudulent intent, and especially where there are no creditors to be affected, then the relation of the parties rather operates in their favor upon any question of merely constructive frand. In the ease of all marriages before the act of 1877 the husband had the right to the use of the wife’s personal property, and even where he had released his marital right he remained a naked trustee of it; and where this law does not apply it is yet natural and proper that the husband should be allowed to use the wife’s property. It becomes only a form of family use, a use perhaps as necessary to the wife’s interests as to those of the husband. There is therefore a special reason in such a case for regarding the use of such property by the husband as on the family account and as in no way conflicting with the wife’s possession. It is not necessary to a sufficient possession on her part, that it should absolutely exclude the possession of the husband. In this case, with the notice of the wife’s general ownership furnished by the recorded deed, there would be such a presumption of her ownership of the personal property on the premises, as would reasonably lead any person observing the husband’s use of the property, to conclude that he was using it as hers, or in the exercise of his rights as husband, and not as exclusively his own. It is found that the horse that was attached was not the one originally given to the wife, but one taken in exchange for that one. As the first horse was the property of the wife, the horse taken in exchange for it with her consent would of course become hers. And as this horse had never before been the husband’s, but became at once the wife’s, his use of it was not a retention of possession, but from the first a use of it as hers. Wheeler v. Wheeler, 43 Conn., 503. It is claimed on the part of the defendant that the gift of the personal property was intended as a donatio causd mortis, and upon the recover}? of the donor became of no effect. But in the first place it is not found that the gift was of .that character; it is only found that the moving cause of the execution of the deed was the expectation of the [569] grantor, who was then ill, that he would die. In the next place the gift of the personal property was made at the same time and under the same motive with the gift of the real estate and was undoubtedly intended to be as absolute and unconditional as that. And we find that the deed not only contains no condition in its terms, but was not'delivered, as it might have been, conditionally or as an escrow, but directly and unconditionally to the grantee and was immediately put upon record. It would hardly be possible to find here an intent that it should operate only in ease of the grantor’s death. We must regard the transfer of both the real and personal estate as complete and absolute. As the court below found that the lap-robe and light harness were never the property of the plaintiff, but belonged at the time of the attachment to the husband, the judgment below was correct as to them. There is error in the judgment complained of and it is reversed, except as to the lap-robe and light harness. In this opinion the other judges concurred.