Gilbert, Hedge & Co. v. Glenny

Rothrock, J. 1. Fraudulent conveyance: husband and wife: burden of proof. — The property in question consists of a dwelling-house and lot, which was purchased by the defendants in March, 1886, and the title was taken, and is now held, by Mary 3 , _ 3 J GrLenny* The burden of proof was on the plaintiffs to show that she was not the real owner, but that the consideration for the property moved from her husband. The court below was of the opinion that the plaintiffs failed to make the necessary proof, and a careful examination of the evidence has led us to the same conclusion. It appears from the evidence that the wife kept boarders during the absence of her husband, in the war of the Rebellion; and that, after hostilities ceased, the husband was kept in the service, in the medical department, at Vicksburg, Miss., and that the wife joined him at that place, and kept a boarding-house there. She accumulated some money in this business, which seems to have been a separate employment, independent of her duties as a wife. She loaned this money to her husband, and he afterwards repaid it, by furnishing the money with which theqoroperty was purchased. We have given attention to the argument of counsel as to the improbability of the account given of these transactions by the defendants as witnesses. As the plaintiffs attack the title, the burden is upon them to show that it is fraudulent; and this [515] cannot be done by mere inference, based upon the assumption that the defendants ’ testimony is untruthful. 2. Husband and wife: title to wife's earnings. it is claimed that the keeping of boarders by the wife was not such a business, independent of her duties as a wife> as authorized her to hold the proceeds ^er employment as her own. We think otherwise. We have held that a wife who followed the business of a washerwoman on her own account, and from which she received compensation from her employers, and controlled and expended her earnings, was engaged in an independent employment, and had the right to her • earnings, under section 2211 of the Code. See Mewhirter v. Hatten, 42 Iowa, 288. , ,3. -: husband using-wife’s money: notice by re-cord. ' It is urged that the money earned by the wife passed to the husband, because it was loaned by her to him prior to the taking effect of Code, 1878; and that . ° 7 7 . . under section 2499 et sea. of the Revision of i860 she was bound to place notice of her ownership upon record, m order to avoid surrendering her interest to those giving credit to her husband. The debt for the payment of which the property is sought to be subjected was contracted in 1883. Section 2499 of the Revision of 1860 was repealed by the Code of 1873 ; and in Jones n. Brandt, 59 Iowa, 332, it was held that section 2499 of the Revision had no application to parties who became creditors of the husband after the repeal of that statute. That case is therefore decisive of this question. We think the decree of the district court must be Affirmed.