Galt v. Smith

Opinion, Mb. Justice Gbeen: This action was brought to recover arrears of interest upon a bond given by the defendant to the plaintiffs in trust for the defendant’s wife. By the condition of the bond the interest was to be paid either to the wife of the defendant, or to the plaintiffs as trustees for her; the principal w*as to be paid to her children after her death. According to the express terms of the condition, a payment to the defendant’s wife would have been a perfectly good payment, relieving the defendant from any liability to the plaintiffs. Even if the interest had been paid to the plaintiffs, they would have been bound to pay it over to the defendant’s wife. Either at law or in equity, the wife was the sole owner of the interest. It cannot be disputed, therefore, that she had the sole control over the interest, and might do with it as she pleased. On the trial, considerable testimony was given by the defendant to show that his wife had given him the interest, and relieved him from the payment of it. One of her daughters testified that she said it was to be consumed in the family. The evidence, while it consisted of declarations of defendant’s wife, was extremely positive in its character. It extended back to the time when the bond was given, and it came from her sister-in-law and her own children. The learned court below left to the jury the question of fact, whether the defendant’s wife had given up all claim to the interest on the bond from her husband, and directed them, if they found this to be the fact, to find a verdict for the defendant. The jury found a verdict for the defendant, and thereby determined this fact in his favor. Under the evidence, they could not have done otherwise. The proof was most emphatic and precise. It did not consist of mere loose and indefinite declarations, nor was there any weakness or uncertainty in the testimony. Mrs. Helterbrick, a daughter of Mrs. Smith, said: “ I heard mother tell father that he should give the mortgage, and that there would be no interest at all paid on it. She said the interest would be consumed in the family. Q. Was that after-wards ? A. That was before; and afterwards I also heard [171] her say that there was no interest to be paid, and that it was consumed in the family. Q. Who did she say was to pay no interest ? A. She said father was to pay no interest; it was consumed in the family. Q. Did she speak of it once or often ? A. She spoke of it often.” The court directed the jury to disregard what was said before the bond was executed, but the witness repeated the substance of what she had said before the bond was given as having been said many times after it was given. She especially testified that her mother repeatedly declared that her father was to pay no interest, that it was to be consumed in the family; and continued saying so “ as long as her mind was correct.” The son of Mrs. Smith was almost equally as explicit and positive. There was no uncertainty about the testimony. It related to this very bond, and the mortgage given to secure it, and it was most emphatic to the effect that his father was to pay no interest. It is unnecessary to repeat the testimony. It is entirely satisfactory upon the point in question, and it has been followed by the verdict of the jury finding the fact distinctly. This leaves only a question of law, whether it is competent for a wife to release her husband from the payment of interest due from him to her. As to that question, there can be no controversy. The authorities go further than that, and hold that in some circumstances the law will presume a surrender of the interest, without distinct proof of an actual surrender. But, as the proof here was so positive, it is not necessary to discuss that class of cases. It has been ruled many times that a wife may do as she pleases with her income, and of course she may give it to her husband if she chooses. Judgment affirmed.