North Platte Milling & Elevator Co. v. Price

CoNaway, Justioe. The above named plaintiffs in error commenced their separate actions in the district court for Albany County to subject certain realty, situated in Laramie in that county, to the payment of several judgments which they had respectively obtained against Barnard J. Price, one of the defendants in error. This realty had been conveyed by Barnard J. Price and May E. Price, his wife, to Jesse Converse, on December 14, 1888, and by him immediately conveyed to May E. Price, he acting merely as an intermediate trustee for the purpose of vesting the legal title to the property in May E. Price. These three parties are the defendants in error. These conveyances were attacked by plaintiffs as fraudulent and void as to the creditors of Barnard J. Price. The district court found in favor of the defendants, and the plaintiffs bring their cause to this court by their petition in error. The pecuniary consideration of the transfer of the property from Barnard J. Price to May E. Price, his wife, by these deeds is admitted to be merely nominal. The actual consideration alleged is that of marriage, in pursuance of an ante-nuptial contract by which Barnard J. Price agreed to convey the property to May E. Gavitt, now May E. Price, in ease of their intermarriage with each other. The evidence tends to show that this alleged ante-nuptial contract was made before the majority of May E. Gavitt, though the marriage took place afterward. She, then a min- or receiving the proposal of Barnard J. Price, referred him — 301 — to lier mother, a widow, and her natural guardian. With the concurrence of Mrs. Gavitt the marriage contract, and the alleged ante-nuptial contract for the settlement of the property upon May B. Gavitt upon her marriage with Barnard J. Price were made before she reached the age of majority. Numerous errors are alleged by plaintiffs in error in the admission by the trial court of certain parol testimony in reference to the making of the alleged ante-nuptial contract and in reference to the attendant circumstances. This is claimed to be in violation of the statute of frauds. Our statute of frauds provides that every agreement, promise or understanding made upon consideration of marriage, except mutual promises to marry, shall be void unless such agreement or some note or memorandum thereof be in writing and subscribed by the parties to be charged therewith. It will be observed that it is not required that the agreement shall be in writing. It, is sufficient that some note or memorandum thereof be in writing. It would seem entirely consistent with this statute that the fact that there was an agreement made upon consideration 'of marriage should be proved by parol. The agreement, however, would be void unless there were also shown some sufficient note or memorandum thereof in writing subscribed by the party to be charged therewith. It is certainly competent to show by parol testimony the attendant circumstances in order to inform the court of the position and condition of the contracting parties. It was certainly not error to admit parol testimony showing that May E. Gavitt was a minor at the time of the making of the contract for her marriage, and the alleged ante-nuptial contract for the settlement of the property upon her in the event of marriage with Barnard J. Price; that her father had been dead for many years; that Mrs. Nancy Gavitt was her mother and participated in the.negotiations leading to these contracts, and concurred in and approved of them. We find no prejudicial error in the admission of the parol testimony as to these matters. And we proceed to inquire whether a sufficient written note or memorandum of the alleged ante-nuptial contract for the settlement of the property is shown. — 302 — The written note or memorandum relied on is in the form of a letter from Barnard J. Price to Mrs. Gavitt, and reads as follows: “Dear Mrs. Gavitt: “I have taken the liberty of writing you on a subject which “is so new to me that I fear I could not state my case in a “personal interview. You must forgive me if I have done “wrong in paying my attentions'to May without your_sanc“tion, but all is fair in love and war, and I must trust to your “good nature to overlook it; the fact is May and I love each “other very much, and all we require to complete our happiness is your consent to our engagement and ultimate union in “marriage. All I can say on my own behalf is that should “you see fit to trust her to my future care I will leave nothing “undone that will tend to her happiness and welfare. I am “prosperous in my business and have a nice house and lots, “which I intend to deed over to May when we are married, “should I be so fortunate as to be accepted as your son-in-law, “but don’t mention this to her. Hoping to see yon to-morrow “and receive your favorable answer, I remain, “Yours very truly, “Barnard J. Price.” Here is a proposition to marry which became a marriage contract when accepted; but it is urged that the language in reference to the conveyance of the house and lots in the event of marriage is not the language of promise or contract; that it merely expresses an intention of the writer — not a promise— which he might or might not execute at his own option. It is also argued that the inhibition “don’t mention this to her,” is inconsistent with the idea of a promise. What might have been the proper construction of the language used if the mother had regarded the injunction and had not mentioned it to the daughter it is not necessary to consider. The fact is that Mrs. Gavitt immediately put her daughter in possession of the entire contents of the letter. No particular form of words is necessary to constitute a promise or agreement, or a note or memorandum thereof. Neither does it seem to be material whether the note or memorandum — 303 — is made before or after tbe conclusion of tbe negotiations if it is a correct statement of tbe resulting agreement. Tbe note or memorandum required by tbe statute of frauds need not mention tbe party personally interested. Tbe only obstacle to the marriage was tbe lack of tbe mother’s consent, and it is not to be assumed that a promise to settle property on tbe daughter at her marriage made to tbe mother in order to obtain that consent would not be a valid promise though not communicated to tbe daughter. In order to obtain tbe consent of tbe mother, and the resulting consent of tbe daughter, be says, among other things, I “have a nice bouse and lots which I intend to deed over to May when we are married.” No more specific words of promise or contract are used, but these words are treated as words of contract by all of tbe parties in interest. If the words are ambiguous or of doubtful import tbe understanding of their meaning by these parties is not. They are treated by all the parties in interest as words of promise and contract and are acted upon as such. They are as truly and effectively an inducement and consideration for the consent of the mother to the marriage and the resulting consent of the daughter as a formal bond could have been. The acceptance of the proposition contained in this letter is properly shown by parol testimony. The resulting marriage occurred June 18, 1888. The deeds made pursuant to the ante-nuptial contract and now attacked as fraudulent were executed December 14th, 1888, and recorded the next day. The indebtedness of Barnard J. Price to the North Platte Milling and Elevator Company was incurred subsequent to these dates. This company can have no cause to complain of the delay in executing the deeds pursuant to the marriage settlement. The indebtedness of Barnard J. Price to the Wyoming National Bank was incurred prior to the execution and record of the deeds in question. This bank may have cause to complain of the fact that Barnard J. Price was left in possession and apparent ownership of the realty involved from the marriage on June 18, 1888, to December following, when the — 304 — deeds were made and recorded, on the ground that he obtained credit from the bank on account of his possession and apparent ownership of the realty in question; and that May B. Price haying permitted this state of facts to exist should not be permitted to take the property to the damage of this creditor. It is true that a wife leaving the legal title of realty to which she is entitled in her husband, together with the possession, control and apparent ownership of the property, can not, after the husband has procured credit and incurred debts on account of the business standing which the apparent ownership of such property gave him, withdraw the property from the reach of legal process agains.t the husband to the exclusion of the claims of creditors who have extended credit to the husband on account of such apparent ownership of such property. Such withdrawal is very generally considered as fraudulent and the deed from husband to wife by which the withdrawal is effected as void as to debts incurred during his possession and control of the property of his wife. Some circumstances in this case are relied upon as requiring a relaxation of the rule. The wife testifies that the husband gave her the property at or about the time of the marriage on June 18, 1888. She seems to have thought that the property then vested in her. Her mother in December next ensuing became dangerously ill, and, anxious as to the condition of her daughter’s affairs, made inquiry as to the matter and found that the conveyance of the property had not been made. The deeds in controversy were then made and recorded. In the meantime the financial condition of the husband seems to have declined and he was meeting his liabilities with difficulty, and by borrowing money, and the trial court finds that at the time of the conveyance of the property to his wife by the deeds dated December 14, 1888, he was insolvent. He made an assignment for the benefit of his creditors on the-day of the following April. He was not insolvent at the time the marriage contract was made nor at the time of the marriage when the deed of the property to his wife should have been made. He did not consider himself insolvent on December — 305 — 14th, when the transfer of title was made, but says that from the first of January succeeding from general depression in trade and other. merchants in town selling cheaper than he could he "was working at a loss all the time.” There could have been no fraud upon creditors in the ante-nuptial contract, or in carrying out the contract by deeds made at the time of the marriage. The difficulty arises from, the wife’s neglect to inform herself of the forms necessary to be observed in receiving the title from her husband, and requiring these forms to be complied with until her husband had contracted large debts and had become financially embarrassed. The evidence tends to show mere neglect on the part of the wife, but no actual intent to commit a fraud. There is another consideration which is not without weight upon the question of the constructive fraud upon creditors implied from the fact of the possession and apparent ownership of the property in Barnard J. Price when the debts to the Wyoming National Bank were contracted by him. The property was and is a homestead and not subject to sale on execution in the ordinary way. To the amount of $1,500.00 it is exempt. Creditors desiring to subject it to sale are required to show by affidavit that it is worth more than $1,500.00, and they may then proceed to sell, paying' the expense of the proceedings out of the proceeds of the sale, and $1,500.00 to the judgment debtor, and receiving any surplus themselves in discharge, pro tanto, of the judgment debts. The homestead in question was worth about $3,000.00. It may well be doubted whether a homestead of that value sold at sheriff’s sale would produce much above costs and exemption to be applied to the payment of the judgment debts. The possession and ownership of such a homestead would not be a very effective basis for credit. Business men would more naturally look to the condition of the business and to the property employed therein and not encumbered by homestead rights as the property from which to secure the payment of their claims. It is beyond question that a conveyance of the homestead to the extent of the exemption by the husband to the wife could not be held to be fraudulent as to the creditors of the husband. — 306 — Tbe district court found tbat tbe deeds conveying tbe legal title of tbe property in question from Barnard J. Price to his wife were not fraudulent as to creditors but were valid deeds, and rendered judgment in favor of defendants in error for costs. We would be loth to disturb this judgment upon tbe considerations already advanced. But there is another consideration which seems conclusive to tbe same effect. Tbe motion for a new trial is a joint motion of both plaintiffs in error. It is clear tbat tbe overruling of tbe motion was right as to the North Platte Milling & Elevator Company. This party could not have been misled and induced to extend credit to Barnard J. Price by his apparent ownership of the property in question, because they gave the credit after the deeds transferring the title to his wife were recorded. Whatever the law might be as to the Wyoming National Bank on a separate motion for a new trial, the joint motion was properly overruled. The eases relied upon by plaintiffs in error where voluntary conveyances made to defraud existing creditors have been set aside at suit of subsequent creditors are not in point. The conveyance in this ease was not voluntary. It was made in execution of a valid ante-nuptial contract upon a good and valuable consideration, the consideration of marriage. The only possible fraud that can be charged against the grantee in this case is the constructive fraud of leaving the title to the property in her husband as a basis of credit from June 18, 1888, till December 15th of the same year when the deeds of conveyance to her were recorded. If there be a question whether the wife’s equities are superior to the equities of creditors giving credit to the husband during this period there is no such question as to creditors who gave him credit afterwards. The judgment of the district court is affirmed. Groesbeok, C. J., having formerly been of counsel in this case, did not sit. The other justices called Bichard II. Scott, judge of the First Judicial District to sit instead. CLARK, J., and Soott, Dist. J., concur.