Hall v. Young

Sawyer, J. It is unnecessary to consider the exceptions taken by the defendant to the levy, if, upon the other questions raised by the case, the verdict can be sustained. The plaintiff claims under the levy, and the exceptions to its sufficiency were overruled for the purposes of the trial. The object and effect of this ruling were to leave the par. ties at liberty to try other controverted questions upon which the plaintiff’s title under the levy depended. Upon these other questions the defendant prevailed; and if the trial was properly conducted as to them, it is immaterial whether the return of the extent is sufficient or otherwise. — 142 — If Simon Hazelton, upon being sworn as a witness, had admitted that he had in his possession or under his control the deed from Hezekiah to himself, or the bond which he had taken in the first instance for a deed; or it had otherwise appeared to the court that such was the fact, upon evidence which could leave no room for doubt, he might have been compelled to produce it. There is no distinction in principle between compelling a witness to produce a document in his possession under a subpoena, duces tecum, and compelling him to testify to facts within his knowledge. Amy v. Long, 9 East 473; Bull v. Loveland, 10 Pick. 14. But before the court is to be called upon to make a peremptory order that the document be produced, it must be shown conclusively that the witness has the power to comply with it. It is not sufficient that there is such evidence as would be competent to be submitted to a jury upon the question. Evidence may have a legal tendency to establish the fact that the witness has the document in his possession, and yet fall far short of that conclusive character which will warrant the court in adjudging him guilty of contempt in not complying with the order to produce it. If the state of the case was not such as to justify proceedings against him for contempt, in refusing obedience to the order, the court properly declined to make it. The testimony of David Currier showed only that he understood the deed had been delivered to Simon Hazelton, and the case finds that a bond was delivered to him by Moore, in October, 1847, conditioned to execute a conveyance at a subsequent time, and a conveyance about the time specified in the bond to Hezekiah by direction of Simon. If the order had been made for the production of these papers, it could not have been enforced without further inquiry. The court properly declined to make it until, upon such inquiry, it was made clearly to appear that the party upon whom it was made had the power to comply with it. The motion must be — 143 — understood from the case to have been for a peremptory order. But if it had been for an order in the alternative, to produce the paper or show cause to the contraiy, we are not aware of any authority for proceeding in that mode upon the mere motion of a parly who has caused the witness to be summoned under a subpoena duces tecum, but declines to subject him to examination as a witness under oath in relation to his possession or knowledge of the papers. There is no just ground for holding him to such an order merely because there may be evidence, from other sources, tending to show that at some previous time he had the papers in possession. If the defendant had made him a witness, and subjected him to inquiry in relation to his possession of them, upon a case being presented from his answers, the court might have issued the order in the alternative or peremptory form, as the circumstances of the case required. The testimony of Mary Band, offered by the defendant to contradict Hezekiah Hazelton, had no tendency to contradict him. His statement to the witness, that he could tell that in three words which would turn the cause either way, had no such connection with his testimony as to conflict with any statement contained in it. The most that can be understood from it is that it is a statement that he was a witness of such weight and importance that his testimony, true or false, would decide the result. Such a remark made by the witness might have some tendency to show to the jury the true character of the man, and enable them to place a just estimate upon his credibility. This being the only effect of the evidence, it is incompetent. To render it competent it must be inconsistent with, or contradictory to, his statements upon the stand. The statement cannot be understood as varying or conflicting with the facts testified to by him, that the understanding between him and his father was that the deed was not to be delivered until the assent of the mother had been — 144 — given.; that it was never delivered or that it was destroyed by him. If there is ground for the conjecture that, in making the remark, his meaning was that the truth would warrant him to state the facts contrary to what he has stated them, and thus turn the cause in favor of one party, there is equal ground for conjecturing that he meant to say he might truly state them as he has, and thus turn it in favor of the other. If he is to be understood as saying that, by inventing or suppressing facts, to be stated in few words, he could turn the cause one way, and by testifying to the truth in few words, the other way, there is nothing in the remark to indicate what would be invention or suppression of fact, and his testimony may still be all true. The testimony of the wife of Simon Hazelton, as to the declaration made by her brother, was admissible as part of the res gestee. The act of giving the money to her by her brother was material to the issue, one of the inquiries in the ease being whether it was her money, held in her own right, or her husband’s. The declaration made at the time, in relation to it, qualified and gave character to the act; and in reference to the matter which was the essence of the inquiry, namely, whose was the money? It was therefore properly admitted. The most important questions presented by the case arise upon the instructions to the jury, involving, to some extent, a consideration of the relative rights of husband and wife to properly acquired in her right. A series of judicial decisions, sustained by the general course of legislation in this State, have materially modified the ancient rules of the common law upon this subject. By the policy of the old law, personal chattels in possession, which belonged to the wife at the time of the marriage, or which fell to her afterward, became instantly the absolute property of the husband; Co. Lit. 351; 2 Kent’s Com. 143; while her choses in action became his only by his asserting title to them, and reducing them to possession. — 145 — In this State, the right of the husband in both cases is regarded as a marital right, to be enforced by him or waived at his pleasure. If waived, the property, whether it consist of personal chattels, money, or choses in action, remains the property of the wife. Thus in Parsons v. Parsons & al., 9 N. H. 309, it was held that the distributive share of the wife, in the estate of a person deceased, as heir-at-law, does not vest absolutely in the husband, but is to be classed with her choses in action; and so of a legacy to her; Marston v. Carter & Tr., 12 N. H. 159; and a creditor of the husband cannot insist upon the right being enforced. Wheeler v. Moore & Tr., 13 N. H. 478. In Coffin v. Morrill, 22 N. H. (2 Foster) 352, it is said that while these decisions have been made by the courts, the legislation of the State in the enactment of 1846, chap. 327; Laws, June session, 1846, p. 308; giving to the wife the right to hold and dispose of properly in the cases specified, independent of the control of her husband, and authorizing suits by and against her in her own name in respect to such property, must be regarded as giving the sanction of the legislature to those decisions, and thus justifying the extension of the same general view to other cases, not embraced in the terms of those decisions, but falling within the like reason. It was accordingly decided in that case that, although land purchased with the proceeds of a legacy to the wife, not claimed or reduced to possession by the husband, and of which the conveyance was taken to her, might be subject to the claims of his creditors to the extent of his life estate therein, if they had levied upon it. in his life time; yet, upon a sale of it without such levy, the husband joining in the conveyance, the proceeds of the sale, without the assertion by the husband of his right to reduce them to possession, remained the wife’s; and those proceeds being invested in the purchase of other lands, of which the conveyance was taken to the wife, she had good title to such other lands as — 146 — against the creditors of her husband claiming through his administrator. In Cutter v. Butler, 25 N. H. (5 Foster) 343, it is asserted in broad and unqualified terms, that personal chattels, in possession of the wife at the time of the marriage, or falling to her afterward, are not absolutely the husband’s, but, like her choses in action, subject to his marital right of reducing them to possession, if he so elect, and thus making them his. It is there said that the old policy of the law, making the distinction in this respect between choses in action and chattels in possession, is unjust and absurd. The principles recognized in these cases lead directly to the general doctrine that the personal property of the wife at the time of the marriage, or accruing to her in her own right, subsequently, whether it consists in specific chattels, money, or choses in action, and however it may fall to her, whether by legacy, gift, inter vivos or causa mortis, as her distributive share in the estate of a person deceased, or otherwise, if it accrues independently of her husband, and not upon any consideration moving from or connected with him, it remains her’s until he exercises his' marital right by reducing it to possession. This is now to be understood as the settled law of this State. Whether the husband has thus reduced the property to possession cannot be made to depend upon any technical rule, or the concurrence of any particular facts, except that the intention must exist and be carried into execution. In Coffin v. Morrill it is said,- “the joining of the husband in such acts of the wife as are necessary for the investment, transfer or use of the property, and which cannot be done by the wife alone, and acts done by the husband alone, merely and avowedly as the servant of the wife, will not operate as a claim upon the property by the husband, or a reduction of it to his possession. The whole — 147 — matter should rest, independently of technical rules, upon the intention of the parties. The instructions to the jury relative to the money given to the wife, by her brother, and the delivery of it by Simon Hazelton, in part payment for the land, upon the view suggested, were correct. The instructions in reference to the wood cut from the land and disposed of by Simon Hazelton, were also correct. The ease in this respect is not to be distinguished from that of Coffin v. Morrill, in one of the points there decided. The mere cutting off and selling of the wood, and applying the proceeds to the payment of the note given in part for the purchase money, cannot, of itself, be held as a reducing to possession of the money so obtained, or as giving to Simon Hazelton any right or interest in the land. The application of the money arising from the sale of the wood to the payment of the debt secured by mortgage upon the land, is a proceeding of the same character as that in Coffin v. Morrill; of applying the money received as damages for flowing the land, or for taking a portion of it for a highway, to the payment of a mortgage debt upon it. Without proof sufficient to satisfy the jury that the intention existed in the mind of the husband to claim the money as his own, and in the absence of any evidence that the arrangement was made in this mode for the purpose of defrauding creditors, it must be understood that he was acting merely as the agent of the wife. The last point in the instructions proceeds upon the ground that, upon the evidence in the case, the jury might find that a portion of the purchase money for the land was the money of the husband, and the residue that of the wife in her own right, which the husband had not reduced to possession; and that the deed was taken to Hezekialx with the intent on the part of the husband that it should inure to the benefit of the husband and wife, in proportion to the shares paid by them respectively towards — 148 — the purchase. Upon the state of facts thus assumed in the instructions, a trust resulted to each, pro tanto. In Tebbets v. Tilton, 21 N. H. (1 Foster) 273, it was decided that if a husband take a deed in the name of his wife, paying a part of the purchase money, a trust results in his favor, in proportion to the share of the purchase money so paid. The doctrine applies as well to a joint as an individual purchase. 4 Kent’s Com. 301; Powell v. Manson, 3 Mason 364; Wray v. Steele, 2 Veasey & Beames 389. The trust arises upon the mere ownership of the money. Pembroke v. Allenstown, 21 N. H. (1 Foster) 107 ; Tebbets v. Tilton, sup. From this it follows as a necessary consequence that where land is purchased in part with the money of the husband, and in part with the separate money of the wife, and the conveyance is taken to a third person, a trust results to each in proportion to the respective shares so paid. It was said by Lord Hardwicke, 9 Mod. 235, that where several persons agreed to purchase an estate in the name of one, and the purchase money appeared by the deed to be paid by him alone, no trust resulted, for this would introduce all the mischiefs which the statute of frauds was intended to prevent. This doctrine would seem to be sustained to some extent by later decisions in England, and in New-York and Virginia. Wray v. Steele, sup.; Bottsford v. Burr, 2 Johns. Ch. 405; Sayre v. Townsend, 15 Wend. 647; White v. Carpenter, 2 Paige 217, 241; Hayes v. Wood, 4 Randolph 272. But these cases cany the doctrine on to the extent that no trust arises where there are several persons as purchasers; and the proportion of the purchase money to be paid by each is indefinite, and not where the agreed value of a definite proportion of the whole estate is to he paid by each. The doctrine, even to that extent, is the result of the extreme caution with which, in some jurisdictions, courts receive parol testimony to establish the. facts from which a trust may legally result. In this State the question of the ownership — 149 — of the money, at least from the time of Scoby v. Blanchard, 3 N. H. 170, has always been held to be one open to parol proof, like all other questions of fact to be determined upon such evidence. Prichard v. Brown, 4 N. H. 397; Page v. Page, 8 N. H. 187; Brooks v. Fowle, 14 N. H. 248; Graves v. Graves, 29 N. H. (9 Foster) 142. Upon the facts assumed in this part of the instructions, the husband was cestui que trust of an undivided portion of the entire farm, the extent of his undivided interest or share being determined by the proportionate amount of the purchase money paid by him. As such, it could he set off upon execution against him by an extent upon the whole or any particular proportion of that undivided interest, but not by carving out of the estate a certain tract by metes and bounds, constituting a distinct parcel of the premises in severalty. If the proceedings in thus levying the execution are sustained, the wife, and the defendant claiming under her, is necessarily excluded from the undivided interest in the parcel so curved out, without partition, in the same manner as on proceedings for partition before the levy. All the exceptions being overruled, there must be Judgment on the verdict.