Barbee v. Wimer

Scott, Judge, delivered the opinion of the court. This case will be considered in two points of view; in the one, as it stands affected by the act of March 5th, 1849, entitled “ An act to amend an ‘ Act to regulate executions” in the other, as it remains independent of the provisions of that act. In viewing this controversy as influenced by the act of 1849, to which reference has been made, we find that only one of the debts, for the satisfaction of which the property in controversy was sold, accrued before the date of the bill of sale or deed of gift, which was the 16th of August, 1851. There is nothing in the act of 1849 which prevents the property belonging to mai’ried women before, or coming to them during, the marriage from being taken in satisfaction of debts contracted by the husband after the property has come into the wife’s possession. The statute only exempts the property coming in right of the wife from the payment of the [144] debts before the marriage in case of property coming by and at the time of marriage, but property coming in right of the wife after marriage is only exempt from debts contracted previous to the time at which it comes into her possession ; or, which is the same thing, into the possession of the husband. Debts contracted after the property has come to the possession of the wife are not within the purview of the statute, and may be enforced against that property. Then, if the plaintiff claims under the deed of gift, as at least one of the debts on which the executions were founded was contracted after the property came into the possession of the wife by virtue of that instrument, it was lawfully sold. If we regard the slave as a gift by the father to his daughter, from the time she left his house in October or November, 1845, accompanied by the slave, then it is obvious that the act of 1849 had nothing to do with the transaction, as the gift was perfected before that statute was enacted, and all the debts would have been contracted after the property of the wife had came to her possession. If the original dealing in relation to the slave in 1845 be regarded as a loan, as it should be if the parties to it so desire and are willing, then it would continue so until the date of the deed of gift in August, 1851; and in such event it has been shown how the transaction would be affected in reference to the act of 1849. But, laying out of consideration the act of 1849, it may be said that if the original delivery of the slave was a loan and so intended, it continued such until the date of the deed of gift, and, although the slave had remained more than five years in the possession of the loanee, yet, as at the time of the gift no creditor or purchaser had acquired any right to or interest in the slave by suing out an execution or otherwise, the original loan then terminated, and, the transaction ceasing to be within the fifth section of the act concerning fraudulent conveyances (R. C. 1845, p. -), a creditor would afterwards have no right to seize the property under execution, as the loan had ceased before his execution became a lien on it, which from that time became the sole and exclu [145] sive property of the wife by virtue of the bill of sale or deed of gift. In the case of Meaux v. Caldwell, 2 Bibb, 244, slaves were put in possession of a son-in-law, with whom they remained ten or eleven years, when they were taken out of his possession and other slaves were put in their place. The creditors of the son-in-law, whose debts were contracted whilst the first mentioned slaves were in his possession, seized them under execution, and, on a bill filed to enjoin the sale, the slaves were held subject to the execution. It was said that the lender of the slaves having acquired possession of them before the execution was levied, did not change the nature of the transaction; that five years’ possession gave an absolute right so far as creditors and purchasers were concerned. So in the case of Pate v. Baker, 8 Leigh, 80, it was held that, after a loan to a person with whom or with those claiming under him possession had remained five years, a deed was made by the lender declaring the original loan and continuing it, but the deed was never admitted to record, it was held that the deed could not affect a creditor of the person in possession and ought not to be received as evidence against such creditor. (Gay v. Mosely, 2 Munf. 543.) The case does not require that we should express an opinion on the questions whether if the bill of sale had been recorded, and the debts afterwards contracted, the property would have been' subject to them; or, whether, when the possession has remained with the loanee, or with those claiming under him, for five years, and is then resumed by the lender, the possession must continue with the lender the period of five years from the time it was resumed before the title will be revested in the lender as against a creditor of the loanee. Napton, Judge, concurring, the judgment is reversed and the cause remanded. Judge Richardson did not sit, having been of counsel.