Lee ex rel. Lee v. Newell

1. A. brought an action of debt, for the use of his wife, B., against C.’s administrators, on certain notes under seal, made by C. in favor of A., and as alleged, given by the latter to Ms wife. There was also evidence of A.’s indebtedness to C. about the time the notes were made. The defendants acknowledged the execution of the notes, but denied any title in B., and pleaded payment. In answer to a point submitted by them, the court instructed the jury at length, in regard to the burden on a wife to establish her claim to property in a contest with her husband’s creditors: and also told them that a husband has a right to make a gift to his wife, if he has no creditors or has enough left to pay them. Held, that this instruction was inapplicable to the case, and calculated to confuse the jury by leading them to infer that if A. had creditors other than C., the transfer of the notes to B. was fraudulent as to those creditors, and therefore void as to C. Held, further, that in absence of any proof of fraud as to his creditors, it was lawful for A. to transfer the notes to his wife by gift, and that after knowledge of such gift by C. the latter could not take advantage of any defence made up between himself and A. in violation of B.’s rights. C.’s consent to the gift was unnecessary except to bar ' some pre-existing defence to the notes. 2. It being a matter of dispute whether there was a gift to B., and if so, when it was made and when it came to the knowledge of C. Held, that the acts and declarations of A., made in the absence of B., and, as alleged, after she had acquired title to the notes, were admissible in evidence. 3. A delay of seven or eight years in bringing suit on a specialty, is slight evidence of payment, varying according to circumstances; and where it is submitted to a jury to infer payment from circumstances, the weight to be given to delay or promptness in bringing suit, is for them to determine.

Error to the Court of Common Pleas of Clarion county: Of October Term, 1884, No. 73. Debt, by J. T. Lee for the use of Melissa C. Lee, his wife, against R. D. Newell and E. M. Lee, administrators of Jacob Edmonds, deceased, upon six notes under seal, drawn by Ed-monds in favor of J. T. Lee. One of the notes in suit, for $321, was dated May 28th, 1866, payable one year after date ; the other five were dated May 14th, 1874, for $1,000 each, and were payable in five, seven, nine, eleven and thirteen months after date respectively. On May 7th, 1874, Lee gave Edmonds a bond and mortgage for $7,000, which remained unsatisfied until December 31st, 1880. On the trial, before Knox, P. J., the plaintiff claimed and endeavored to show that Lee and Edmonds had business dealings with each other extending over many years, and that the five notes of May 14th, 1874, were the result of a general settlement of that date ; that the note of May 28th, 1866, was omitted from the settlement by mistake and therefore included with the others; that Lee was entirely solvent when he received the five notes, and he delivered them to his wife Melissa, as a gift, together with the note for $321, she thereafter retaining possession of them; that about 1876 Lee became involved, filed a voluntary petition in bankruptcy, and was adjudged a bankrupt, but before his property was actually taken into the possession of the assignee, he paid all his debts and his assignee made him a deed of reconveyance; that Mrs. Lee retained possession of said notes until after Edmond’s death in June, 1882, when she demanded payment from his administrators, and being refused brought this suit on July 7th, following. The defendants admitted the execution of the notes, but denied any title to them in Mrs. Lee and alleged payment. They offered in evidence an exemplification of the record of Lee’s proceedings in bankruptcy, and testimony to show that for years after making said notes, Edmonds was fully able to pay them, while Lee was poor and in absolute need of the money; evidence of declarations by Mrs. Lee, made in 1867, in the absence of her husband, respecting their indebtedness to Edmonds; also of declarations and admissions by Lee to tlio same effect, made in the absence of his wife, and after the alleged transfer of the notes to the latter; evidence of continued business dealings between Lee and Edmonds after the notes were given, and of settlements between them precluding. as alleged, the existence of any large unsettled claim. Plaintiff, in rebuttal, gave evidence of declarations by Ed-monds admitting the existence of the notes down to a short time before his death ; and offered to follow with proof that Lee never actually parted with possession of his property to his assignee, by giving in evidence the deed of reconveyance from said assignee back to Lee. Offer refused. Exception. (Tenth assignment of error.) Plaintiff submitted, inter alia, the following points: 1. “The Statute of Limitations interposes no obstacles to the plaintiff’s recovery.” Affirmed. 2. “ The delay of the plaintiff to collect the notes at maturity, or to bring suit sooner for the recovery, is but slight evidence of the payment of the notes.” Answer. “ If there were no other evidence or circumstances in this case than mere expiration of time, that would not be sufficient in itself to defeat the plaintiff’s claim; but that fact must be taken into consideration by the jury, in connection with the other circumstances and facts in the case, and given such weight as it may be entitled to, as explained by such facts and circumstances; and as thus explained, we answer this point in the affirmative.” (Twelfth assignment of error.) 6. “ If J. T. Lee endorsed and delivered, as a gift, the notes in question to his wife, as her own separate property, and Jacob Edmonds knew it, any declarations or acts of J. T. Lee, after such delivery and knowledge of Edmonds, in the absence of Mrs. Melissa Lee, should be disregarded by the jury in making up their verdict.” Answer. “If the husband endorsed these notes over to his wife as a gift with Jacob Edmond’s knowledge and consent, the result stated in this point would follow, but the jury must Hud this from all the facts in the case ; and as further explained by defendants’ points and our answers thereto, we answer .this point in the affirmative.” (Fourteenth assignment of error.) Defendants asked the court to charge: 2. “ The possession of dioses in action, such as the notes in suit, for instance, by the wife while cohabiting with the lius-band, is not evidence of title in tbe wife. In such case the wife is bound to show by satisfactory primary evidence her title to such choses in action, and in the absence of such evidence, the notes would remain the property of the husband.” Answer. “ When they make use of the words ‘ choses in action,’ that means a note or due bill, something of that kind. In this case it means these notes in suit. We will call your attention to a decision of the Supreme Court on that subject, in a late case, delivered by Justice GobdoN, which expresses it rather more pertinently than we are able to. He says: ‘Before the Act of 1848, the marriage contract vested the right to the personal property of the wife in the husband. She had no such thing as a separate and independent personal estate. Since that Act she may not only continue to own and hold the property she had at the time of the marriage, but she may, during coverture, acquire a separate estate. In favor of such an estate, however, there is no legal presumption, but the contrary; the husband is presumed to be the owner of the property of which he and the wife have the joint possession. Does she purchase lands or goods, their price is presumed to come from the pockets of the husband; or does he transfer to her property, real or personal, it is presumed to be a gift from him to her. Thus the Act of 1848, whilst it makes it possible for a feme covert to have and enjoy a separate estate, raises no presumption in favor of the existence of such an estate. She must affirmatively establish that fact, and this] not only because of the ease with which the husband’s creditors might otherwise be defrauded, but because, ordinarily, it is impossible for her to have a possession separate and distinct from her husband; hence one of the most obvious and prominent marks of proprietorship is, in her case, not only wanting, but such possession being usually attributed to the husband, a presumption of his ownership naturally follows, by which his credit is increased. Even in a case where a widow claims property as against her husband’s estate, it has been held that she must show by evidence which does not admit of a reasonable doubt, either that she owned it at the time of her marriage, or else acquired it afterwards by gift, bequest, or purchase. In case of a purchase after marriage, the burthen is upon her to prove distinctly that she paid for it with funds which were not furnished by the husband. To bring the property of a married woman under'the protection of the Act of 1848 — that is the married woman’s Act — it is made necessary by the letter, as well as the spirit of the statute, to prove that she owns it. She must identify it as property which was hers before marriage, or prove how she came by it afterwards. Evidence that she purchased it, amounts to nothing unless it be accompanied by clear and full proof that she paid for it by ber own separate funds. In the absence of such proof, the presumption is a violent one that her husband furnished the means of pay ment.’ “ In addition to that, gentlemen, we say to }rou that a husband has a right to make a gift to his wife, and where the gift is made to the wife under proper circumstances, it is good, and she can hold it as such; but that must not be against creditors. He must not denude himself of property or the right whereof the creditor has the right to make his money, for the purpose of creating a maintenance or support for the wife in the shape of a gift. If so, it would be fraudulent as to those creditors. But if there is no creditor to suffer, and the man has ample remaining to pay his debts, so that there is no one to be injured, then it is simply a matter between husband and wife, and if the husband gives it, he would not have the right to reclaim it. There is the law. It belongs to the wife. “ In addition to creditors, if there were dealing between men —say Jacob Edmonds and Jefferson T. Lee — and there was an understanding between them, like that mortgage debt, that these notes would be satisfied and paid by that mortgage debt, aud that was the original understanding, and Jacob Edmonds did not have knowledge of nor consent to the transfer to the wife and did not agree that she should hold the notes, — he had a right to follow them because they are under seal — they are not negotiable. He had a right to follow them; and a settlement honestly made, bona fide, between him and Jefferson T. Lee afterwards of those notes would satisfy them, so far as Jacob Edmonds was concerned.” (Fifteenth assignment of error). 3. “That in the case of acquisition by the wife after marriage of dioses in action, such as the notes in suit, the law presumes that they are the property of tbe husband in the absence of satisfactory primary evidence that she purchased the same and paid for them out of her separate estate, and there being no sueli proof in this case, the verdict should be for the defendants, if the jury believe from the evidence that Jacob Edmonds settled aud paid the notes in suit, either by applying them to the payment of a mortgage he held against J. T. Lee, or by any other settlement between the parties.” Answer. “ We answer that in the affirmative.” (Sixteenth assignment of error). In the general charge the court instructed the jury, inter alia, as follows: “ Gentlemen, you must take this testimony all together, with the notes, the time that has run, the evidence on behalf of the defence, the rebutting evidence on behalf of the plaintiff, and the rebutting testimony subsequently offered on behalf of the defendants. ..... Time becomes material in connection with the circumstances in the case showing payment. [Settlement — anything that settles a note, such as settling between parties — would amount to payment and that is what we meant by payment. Payment can be made by settlement between parties, of accounts, by notes, adjusting their affairs, liquidation, just as much as direct payment.'] (Eleventh assignment of error). Whenever you hear us use the word “payment,” in reference to the points or the answers we simply mean that it was satisfied between the parties in some way.” Verdict for the defendants and judgment thereon ; whereupon the plaintiff took this wait of error, assigning for error the answers to points and the rejection of evidence as above set out; and that part of the general charge included in brackets. The deed of recon-veyance from the assignee to Lee was admissible to rebut the idea of insolvency ’ contended for by the defendants. That 2^art of the general charge complained of in the eleventh assignment, permitted the jury to find payment from settlement, while in fact there was no evidence of any settlement between the parties which would satisfy these notes. In answer to the defendants’ second point the court read the opinion of the Supreme Court in Wilson v. Silkman, 1 Out. 512, which defines the burden of proof cast on a wife in a contest with the creditors of her insolvent husband. This case is a suit by a solvent husband for the use of his wife, against his solvent debtors, and the opinion in Wilson v. Silkman, has no bearing on it whatever. Mrs. Lee’s title could in no way affect the defendant’s liability to pay the notes, and she was not re-required to make any such proof thereof as the jury were led to suppose she must by the answer to defendants’ second point. It was no defence to the notes to allege wrant of title in her: Artisan’s Ins. Co. v. Moonejr, 4 Brew. 103; Crawford v. Stewart, 38 Pa. St. 35; Armstrong v. City of Lancaster, 5 Watts 68; • Memphis, etc., R. R. Co. v. Wilcox, 48 Pa. St. 161; Reynolds v. Richards, 14 Pa. St. 205. Lee was the debtor of Edmonds by the bond and mortgage and remained so until they were settled and satisfied. A right existed in Edmonds to have so much of this indebtedness applied as set-off to the motes in suit as would satisfy them. This right to set off, Edmonds could not be deprived of even by an assignment or transfer to a holder for value: Thompson v. McClelland, 29 Pa. St. R. (5 Casey) 475; Jacoby v. Guier, 6 S. & E. 448; Filbert v. Hawk, 8 Watts 448. The ease of Wilson v. Silkman was properly read to the jury and was applicable to Mrs. Lee’s claim to be the owner of the notes. If the notes were used by her husband, J. T. Lee in a settlement and payment of the mortgage debt due Edmonds, Edmonds was, until such satisfaction was consummated, a creditor of Lee, and Lee was Edmonds’ debtor. Payment may be presumed “ from an intermediate settlement of accounts:” 2 Wharton’s Law of Evidence, Section 1363. “ So payment of a debt, after the death of the parties, may be presumed from the fact that at the time of maturity the debtor was in opulence and the creditor in needy circumstances: ” Levers v. Van Buskirk, 4 Pa. St. (4 Barr) 309; Henderson v. Lewis, 9 S. & R. 379; Lesley v. Nones, 7 S. & R. 410 ; Diamond ®. Tobias, 12 Pa. St. '812; Connelly v. McKean, 64 Pa. St. 113. Time was properly submitted to the jury, along with the other testimony in the case.