Bergey's Appeal
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The opinion of the court was delivered,
by Thompson, C. J.
The material question in this case, is as to the character in which Jacob Bergey received his wife’s money. There was no dispute that he did receive it, amounting to some $1680, being her patrimonial portion. This the auditor finds; but at the same time he has found that he received it as a gift from his wife. The testimony relied on for this conclusion is that of Abraham Landis, who, after stating in chief the fact that he had paid Deborah Bergey $1500 “ out of her father’s and mother’s estate” some seventeen or eighteen years ago, after her marriage with Jacob Bergey, on cross-examination testified as follows:—
“ Deborah Bergey and her husband were together when I paid the money. Jacob .picked up the money and counted it; and I think he did’nt put it down again, I know that Jacob Bergey, at about this time, had bought his father’s farm, and he told me he would put the money in there. He said that they wanted this money; they had bought the farm.” Charles Benner proved the payment to his sister, Mrs. Bergey, of $180 about the same time.
The testimony of Landis, together with the fact that no note or judgment was given to the wife to secure the money for eight or nine years, is the sole foundation 'on which the auditor rests his conclusion that the money was obtained as a gift, and that the judgment was a fraud against Bergey’s creditors. Not a word was spoken by the wife when her husband took up the money to count it, and put it in his pocket. Nor do we ever hear of a word thereafter to the effect that the wife had made a gift of it. No inference of a gift from the transaction as detailed could, we think, arise. She was not bound to attempt a rescue of it from him, or proclaim that it was not a gift. She might rest on the idea that his receipt, in her presence, was with the intent to take care of it for her. In Johnston v. Johnston’s Administrators, 7 Casey 450, this court said in a ease of the nature of this, “ as the law made it (the money) hers, it presumes it to have been received for her by her husband.” That case contrasts the presumptions arising from the receipt of money by husbands, prior and subsequent to the Act of 11th of April 1848. In the first period, the presumption is that he has received it under and by virtue of his marital power as his own; in the second the presumption is the opposite that he received it for his wife, the Act of Assembly having declared it hers, and for her “sole and separate use.” To the same effect are Grabill v. Moyer, 9 Wright 530 , and Millinger v. *416 Bowman, Id. 522, in both, of which Johnston v. Johnston’s Administrators is referred to as the rule under the act.
Applying these principles to the transaction disclosed by the proof, and uncontradicted, at the time the money was paid and taken possession of by Bergey, it seems to us that there was not a shadow of a reason for holding that there was a gift of it to him by his wife. Did anything subsequently transpire to disclose that this was the object of the transmission of the money, if such an expression be a proper one to characterize the unbidden seizure of it by the husband ? We shall see.
If it- was not a gift, the husband was a trustee for his wife, and whether he kept the money in his pocket or- put it into real estate which he had purchased, honesty required that he should account to her for it. He could be compelled to do so in equity.
There is something like an argument by the auditor, that as the wife assented to the money being invested in the real estate purchased by her husband, she could not reclaim it, as it was appropriated at her request. That, however, would be a gift, in one sense at least; but it is claimed that it is not that, but an appropriation for her own use. The idea was doubtless suggested by what was said in Johnston v. Johnston’s Administrator. It was there held that the wife, having expressly directed the appropriation of money received by the husband, belonging to her, to be expended in a particular way for the comfort of herself and family, she was so fully the owner and proprietor of it she was not allowed to reclaim it against his estate on the footing of a loan or debt. The proof is wanting here to bring the case within that rule; for the evidence is wholly wanting to show a direction for its investment. It does not even appear in the testimony that Mrs. Bergey was present when her husband said he would put her money into the house he had bought; or if present, that she assented to it. Certainly she is not to be bound without her assent, and that is not to be assumed to have been given without some proof of it. The case cited above held the wife precluded from reclaiming the money, only because of her assent inferred from her express direction to use it in a particular way. As this was not shown in this case, we presume that it did not exist. We take no account of what Charles Benner says on the subject. He gives no fact to substantiate what he says he knows of the matter, or how he knows what he asserts, or when or where he learned it. Besides, the auditor holds him an unreliable witness. We have no reason for esteeming him otherwise.
But the length of time which transpired between the receipt of the money and the date of the bond given by Bergey, in trust to secure his wife, is dwelt on by the auditor, as a circumstance negativing the idea of a loan, especially as there was no promise of repayment when he obtained it. If a stranger had possessed *417 himself of her money as did her husband, it will hardly be contended that a recovery as for a loan might not be had against him without a promise to repay it; and it was no less hers under the act, because her husband took it. The lapse of time, some eight or nine years, between the date of its receipt and the bond given to secure it, did not raise any presumption against the character of the original transaction, either as a loan or as money received in trust. While under some circumstances it might raise a bar to its recovery by reason of statutory limitations on the remedy, the character of this transaction remained as at first. But Bergey was not bound to interpose the statute of limitations to bar the debt or to defeat the trust in favor of creditors, even if he might. Their claims were, at the best, no more meritorious than hers. It was no fraud on them to give a judgment to secure his wife, there being no question of his receipt of her money, even if there was a lapse of nine years during which she trusted, and it may be “waited and hoped” for justice from him. It would have been a fraud upon this most intimate and confidential of all relations, if he had not done so.
But the auditor discarded the bond because it was the declaration of the husband of his indebtedness to his wife. That objection would be good for a great deal, in a proper case. But not in a case where the debt, by the receipt of the money, is fixed, settled, undisputed, and so found by an auditor. It is admitted that the giving of the bond includes in it an admission of the character of the original transmission of the money. Let it be understood, that this would not be allowable to change the character of the original transmission. For instance, if there had been a gift of the money when it passed into the hands of the husband, and he had received it as such, a subsequent effort to change its nature into a loan, would not be allowed to succeed, certainly as against creditors. But when the note or bond is entirely consistent with the evidence of the terms of the actual receipt of it, the rule ought not to apply. In Johnston v. Johnston’s Admr., we said that declarations made at the time of the receipt of the wife’s money or afterwards, were evidence against the estáte of the husband of the intent with which it had been received; and in both the cases cited, of Millenger v. Bowman, and Grabill v. Moyer, notes were given some time after the transmission of the money, and the wife’s rights upon them were sustained. The mere lapse of time, while it properly superinduces scrutiny, does not change the principle on which the husband may be liable on account of the original transaction.
Perhaps it is hardly worth while to notice the fact, that the wife asserted her claim as a creditor of her husband by virtue of her judgment, when property of his on which it .was a lien was sold in 1862 by the sheriff, and it was allowed by the court. This at *418 least showed the assertion of her rights when jeoparded, and that her claim now made on account of the money then received on her judgment, is neither stale nor justly suspicious.
With that money and the aid of a friend, between whom and her husband no collusion is shown or found, she became the owner of the property, the proceeds of which have given rise to this-litigation. It was bought by and deeded to her. It was sold on a mortgage given by her with her husband for a loan to her. After the payment of that lien why shall she not be entitled to the overplus ? There is much said by the auditor and somewhat by the court, rather in generalities than specific objections to her claim. But waiving this, we cannot agree that these conclusions are correct on any basis assumed, after a' careful examination of all the facts in the case. We think the auditor, even if he might set aside the judgment for fraud, had no sufficient evidence in any of the considerations noticed, and certainly not in the fact that the judgment was for too large an amount by the sum of the interest included in it. That was an easy mistake to make — especially as it was held in Grrabill v. Moyer, that the wife was entitled to recover interest when the husband had assumed to pay it. It was easy to fall into the error that interest followed the principal, as an incident in such a case, without an express assumption. This simply was, therefore, not a ground for setting aside the judgment, and we do not discover any other sufficient ground.
The auditor exhibits a very laborious examination of cases to support his theories, and to sustain his ultimate conclusion. It is likely they do sustain peculiar points of view of portions of the case, but it is a coincidence that a largó majority of them concur in maintaining married women’s rights under the Act of 1848, under almost any aspect of attack, instead of defeating them. That act is an enabling or enlarging act — and it is of the very nature of such acts that they are to be administered in the spirit of the rights enlarged by them. Such legislation implies an intention to reform or extend existing rights, and it cannot he that it is the duty of the courts to render them as unavailing as possible to the class intended to be benefited, by harsh and unpractical views and rules. Our line of decision under the statute has few deviations, in my judgment, from a due course. We hold the married woman to clear and satisfactory proof that property claimed by her is an acquisition by her own means, or the means of friends, independently of her husband. This being established, we have always given her the full benefit of it as her own separate estate, as the law declares it to be. In Tripner v. Abrahams, 11 Wright 221 , we reversed one of our brethren for holding too stringent a view in the proof to establish the wife’s rights of property — and asserted the rule that the proof by the wife of her means of acquisition, independent of her husband, must be “ clear *419 and satisfactory.” This is a reasonable rule which courts and juries may easily perceive and apply. We mean not to relax that in the least degree.
In conclusion, we cannot concur with the learned judge below that Mrs. Bergey is only entitled to the difference between the amount of money directly put into the land by her,' and the lien created by her on it. We see no evidence or reason why the title, being in her by her own means and that of friends without collusion on their part with her husband and the use of his means, should not enure to her use. It was not intended for the creditors of her husband by these friends. That is the state of this case, so far as the Snyder and Boorse tracts are concerned.
As the record furnishes no evidence showing that Mrs. Bergey paid for the Price tract, she of course cannot receive the proceeds of it.
It appears that the Snyder & Boorse tract cost $2325, and the Price tract $788.12, and the fund in court apportioned between them would give the Snyder & Boorse tract $807.70, and the Price tract $549.43.
And now, February 5th 1869, the decree of distribution made in the Common Pleas is reversed, and it is ordered and decreed that the money in cóurt be paid as follows:—
To Deborah Bergey .... $807.70
To J. E. Hunsicker .... 337.42
To William P. Moyer .... 173.45
To Thomas M. Colder .... 38.56
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