Pinkston v. McLemore , 31 Ala. 308 ( 1857 )

WALKER, J.

— The complainant claims to have made a contract, in 1839 or 1840, with her husband, whereby she was to have a separate estate in the earnings of herself and four domestic servants, and out of them defray the family expenses. The earnings of a married woman belong to the husband. He may, by contract with her for a consideration, or by gift, invest her with a separate estate in her earnings, which will be maintained in equity against the husband and his representatives; but such separate estate, created by gift, can not be valid against existing creditors, for the same reason which avoids other voluntary conveyances as to such creditors. — 2 Eq. Cas. Abr. 155; 11 Viner’s Abr. 180-181; 2 Story’s Eq. § 1375; 2 Roper on H. & W. 137; 2 Bright on H. & W. 302; McLean v. Longlands, 5 Vesey, 78; Pinney y. Follows, 15 Verm. 525; Baron v. Baron, 24 Verm. 375; Neufville v. Thompson, 3 Edw. Ch. 92.

2. The contract alleged to have been made between complainant and her husband, and which is claimed to have the effect of investing her with a separate estate in the earnings of herself and her domestic servants, must, under the principles above stated, be void as to the existing creditors of the husband, and valid as to subsequent creditors, unless it is assailable for intentional fraud. The proof establishes the allegation of the answers, that the debt of the defendant Smith was subsisting at the time of the alleged contract between complainant and her husband ; and the contract, being altogether voluntary, is void as to that detbndant. The earnings of the complainant and her servants were, as to the subsisting creditor, the property of the husband; and the property bought with those earnings was also the property of the husband, and, therefore, liable to the execution levied upon it. It follows that, as to the defendant Smith, the bill was properly dismissed.

3. The executions in favor of Moses McLemore, as executor of Joseph Harper, were levied upon the following property, to-wit: two bay horses, a buggy and harness, one wagon and harness for four horses, and one sorrel horse. The buggy and harness were obtained in exchange for a carriage. The carriage and two bay horses were purchased in 1846, together with some other property, at a mortgage sale of some of the pi’operty of James K. 'Pinkston, the complainant’s husband, by said McLemore. The property so purchased was conveyed by McLemore, of his own motion, to a trustee for the separate use of Mrs. Pinkston; and a sufficiency of the property was sold to reimburse to McLemore the purchase-money paid, leaving the residue a separate estate in the hands of Mrs. Pink-ston. In this transaction there is no evidence of fraud. The property was sold under a mortgage; bought' and paid for by the purchaser, who gives the remainder, after the sale of a sufficiency to reimburse himself, to Mrs. Pinkston. The property thus acquired by Mrs. Pinkston would not- be liable to the payment of her husband’s debts. The property, when purchased and paid for by Moses McLemore, was his; and he had an unquestionable right to invest Mrs. Pinkston with an exclusive title, which would be beyond the reach of her husband or his creditors.

The wagon and harness levied on is shown by the proof to have been purchased by Mrs. Pinkston long after the contract with her husband that she might have her earnings as a separate estate; and this property could not be liable to any creditor of the husband, whose debt was of date subsequent to that contract.

Mrs. Pinkston, in 1851, bought and paid for a sorrel horse, which was conveyed by the seller to her separate use. We think the evidence authorizes the conclusion, that this was the same sorrel horse levied on by virtue of the execution in favor of Moses McLemore. In 1850, Mrs. Pinkston obtained a decree in the chancery court, under the act of 31st January, 1846, securing to her sole and separate use her earnings and accumulations. The ' sorrel horse was purchased after that decree. The wagon and harness were also purchased after the same decree. There are two negroes, Phil and Bella, which the bill alleges, and the answer of McLemore admits, were about to be levied on by virtue of McLemore’s executions when the bill was filed. The other property, besides that levied upon and about to be levied upon, it does not appear either from the bill or proof that the defendants intended to disturb; and as to it there is, therefore, no case made out requiring redress in a court of justice, and we do not on that account consider the question of the complainant’s title to it. It does not appear, either from the bill or in the testimony, how Mrs. Pinkston obtained the slaves Bella and Phil. The proof shows that she obtained them one year before the deposition of the witness was given, in October, 1852. It follows, that those slaves were procured by her after the chancery decree securing to her sole and separate use her sole and separate earnings. These slaves she controlled and treated and claimed as her own. It does not appear that they ever belonged to, or were in the possession of, Mrs. Pinkston’s husband. It is also proved with satisfactory certainty, that for a long time before those negroes were possessed by the complainant, her husband had neither owned nor claimed any property, nor had any means to procure it. It further appears that Mrs. Pinkston had, by the use of extraordinary industry, economy, and skill in the management of her affairs, been in the receipt of an income sufficient to have enabled her to make purchase of these slaves.

4. Now, the general principle is, that from possession itself the law will presume ownership of personal property, and cast the onus of proof upon the party assailing the title inferred from possession. "We do not say that this doctrine applies ordinarily to a possession by the wife, where the conjugal relation exists; but, where the wife has been authorized under the law of the land, by a decree of the chancery court, to earn and accumulate for her own separate use, and where she has possessed property separately from her husband and not in connexion with him, and controlled it as in her separate and distinct right, and has shown that she had the means, aside from her husband, to have purchased, and her husband had no property and no means with which to procure it, the burden, of proof, in our judgment, ought to be thrown from her, and cast upon those who assert the liability of the property to the husband’s debts. The defendant has introduced no proof, conducing to show the falsity of the claim set up by Mrs. Pinkston; and we will treat the slaves Phil and Bella as her separate estate, the result of her own earnings.

5. But it is said that the original contract between Mrs. Pinkston and her husband was made with the intent to defraud the creditors of the latter. The proof shows that, in 1840, when the contract was made, the husband was embarrassed with a heavy indebtedness, and some contingent liabilities; but it does not show that, at that time, his property was insufficient, or appeared to be insufficient, for the payment of his debts. Plis credit is admitted to have been then good. TJntil 1845 or 1846, (five or six years afterwards,) money was collected from him by execution. He had, at the time of the contract, a valuable plantation, with more than fifty slaves; and it was not until five or six years afterwards that he incumbered his property with a mortgage; and it was not until 1852, about twelve years afterwards, that his property was sold to pay his debts. By the contract between Mrs. Pinkston and her husband nothing was diverted from the creditors, which would likely have existed and been liable to their debts. No property was conveyed to her, and that which was subjected to her use was not productive property. It consisted of the servants employed in and about the residence of the family. The arrangement simply converted into a separate estate for Mrs. Pinkston the income which she might create by her industry and skill in the management of so much of the labor of four domestic servants, as was not consumed in the service of the family. There is no certainty that any thing thus transferred to Mrs. Pink-ston would ever bave existed in a form to bave benefited creditors but for tbe arrangement. ~We can not find in these circumstances evidence wbicb will justify us in characterizing tbe contract as one fraudulent in intention. There is no proof that tbe object was to make Mrs. Pink-ston tbe bolder of her husband’s money, or that she ever used any of bis money, or any money derived from him, in any of her operations. If such facts existed, tbe defendant ought to bave proved them.

Tbe decree of tbe court below is reversed, and we proceed to render tbe decree wbicb we think is tbe proper one in the case. It is ordered, adjudged, and decreed, that tbe complainant’s bill stand dismissed, and tbe injunction be dissolved, as to tbe defendant Smith; that tbe defendant McLemore, as executor of Joseph Harper, be perpetually enjoined from tbe sale of tbe property levied upon by virtue of tbe executions described in complainant’s bill, and from tbe levy by virtue of said executions, or any other executions upon tbe same judgment, upon tbe slaves Phil and Bella; that tbe complainant be denied any decree as to tbe other property mentioned in tbe bill, upon the ground that her separate right to tbe same has not been attacked or threatened; that tbe complainant pay one half, and tbe defendant McLemore the other half, of tbe costs in tbe court below; and that tbe complainant and defendant McLemore pay each one half tbe costs of this appeal.