Horton v. Dewey

Tatlor, J. There is no evidence in the case showing that Mrs. Stoddard ever paid her husband any consideration for the personal property conveyed to her by the bill of sale given in evidence, other than that inferable from the recitation in the bill of sale itself. The other evidence rather leaves the impression that there was no consideration paid by her to her husband. • The appellants asked the court, among other things, to instruct the jury “that, in order to show that the title to the property described in the complaint passed by* said bill of sale, it must be shown that said bill of sale was delivered; [413] that a consideration was paid therefor; that possession of the property passed to Mrs. Stoddard; and that the property is the same property, or a part of it, described in the complaint in this action.” This instruction was refused, and exception taken. The court having instructed the jury that they might consider the bill of sale in determining the^ question whether John P. Stoddard had conveyed this property to his wife fora valuable consideration, we think the instruction asked should have been given. Under the instructions given to the jury, they were left to infer that a sufficient and valuable consideration was given for the property by Mrs. Stoddard, from the mere recitation of the fact in the bill of sale itself, without any other evidence thereof. The bill of sale was not sufficient evidence that a valuable and sufficient consideration was in fact paid. Sillyman v. King, 36 Iowa, 207. Under the evidence given in this case, we think the plaintiff bought the property knowing that the defendants claimed it to be the property of John P. Stoddard, and not of Mrs. Stoddard. He knew that Mrs. Stoddard was the wife of John P.; that the property had been shortly before owned by him; and that she claimed to have obtained her title from him. He also knew that the defendants were creditors of John P. He stands, therefore, in the situation of Mrs. Stoddard if she had brought the action in her name for a conversion of the property, not having made any sale thereof to the plaintiff or any one else. It is evident that, under the decisions of this court, the evidence failed to make out the ownership of the property by Mrs. Stoddard as between her and the creditors of her husband. This court has repeatedly held that; in a contest betwee:, the creditors of a husband and the wife, if the wife claims ownership of the property by a purchase, the burden of proof is upon her to prove, by clear and satisfactory evidence, such purchase, and that the purchase was for a valuable consideration, paid by .her out of her separate estate, or by some other person for her. Stanton v. Kirsch, 6 Wis., [414] 338; Horneffer v. Duress, 13 Wis., 603; Weymouth v. Railway Co., 17 Wis., 550; Duress v. Horneffer, 15 Wis., 195; Beard v. Dedolph, 29 Wis., 136; Stimson v. White, 20 Wis., 563; Elliott v. Bently, 17 Wis., 591; Putnam v. Bicknell, 18 Wis., 333; Hannan v. Oxley, 23 Wis., 519; Fenelon v. Hogoboom, 31 Wis., 172; Hoxie v. Price, id., 82; Carpenter v. Tatro, 36 Wis., 297. The remark in some of the earlier cases, that the wife must show her title by evidence which leaves no reasonable doubt, has not been adopted by this court as the true rule as to the nature and conclusiveness of the evidence by which she must establish her title; and the rule has been further modified where it appears that her title is derived from some other person than her husband, either directly or indirectly. See Le Saulnier v. Loew, ante, p. 207. We are not disposed to change the rule where the contest is between the creditors of the husband and the wife, or someone claiming under her with notice, when the wife claims to have obtained title by purchase from her husband. In all such cases the burden of proof showing the bona fides of the purchase is upon her, and she must show by clear and satisfactory evidence that the purchase was made in good faith with her separate estate, or for a consideration moving from some person other than her husband. In all such cases the presumptions are in favor of the creditors, and not in favor of the title of the wife. Tested by this rule, the instructions of the court that they might find that a valuable consideration had been paid for this property by the wife out of her separate estate, from the mere fact that she held a bill of sale from her husband reciting such consideration, was clearly erroneous, as was also the refusal to give the instruction asked by the appellants. See Sillyman v. King, supra. That there was some evidence submitted to the jury from which it is possible they might have found that the property was either sold or given by the husband to the son, and by [415] liim sold or given to the wife, does not cure the error, for the reason that no such question was submitted to them for their consideration, or, if it was submitted, the other proposition was also submitted; and it is impossible from the verdict to say that the verdict' is not founded upon the alleged purchase by her from her husband. The wife’s claim was based upon her purchase from her husband, and the verdict must stand or fall upon the sufficiency of the evidence to sustain such purchase. By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.