Kennard v. Curran ( 1908 )

Mr. Justice Freeman

delivered the opinion of the court.

It is said in behalf of appellant Isabella Curran that the decree takes from said Isabella, wife of Richard Curran, a large amount of valuable property not properly subject to the payment of her husband’s debts. The only question to be determined is whether the decree is correct in finding that certain property therein described, the title to which is in Isabella Curran, is in fact the property of Richard Curran and subject to the payment of his debts.

Counsel for appellant presents a number of contentions in his brief which it is unnecessary to consider, in view of the fact that no appeal has been taken from the decree by any of the defendants except Isabella Curran. Richard Curran, the principal defendant to the bill, and the other co-defendants are making no complaint of the decree against them, and the alleged errors in procedure argued by appellant’s counsel are in no way shown to have been harmful to appellant. As said in Culver v. Cougle, 165 Ill. 417-420, “The error, if one was committed, related to them and to them alone. It did plaintiffs in error no harm and they have no just ground of complaint.” The decree finds that Isabella Curran holds certain real estate in her name of which her husband Richard Curran is the equitable owner. The question which concerns appellant is, whether this finding is warranted by the evidence.

There is no room for question that a wife is at liberty to employ her husband in the management of her separate property without subjecting it to the payment of his debts. If such was the nature of Richard Cur-ran’s connection with the management of the property standing in appellant’s name, which by the decree is subjected to payment of her husband’s debts, and the property was in fact her own, the decree must be deemed erroneous. There is, however, abundance of evidence in the record tending to show that as to such property Richard Curran was not acting as the agent of his wife, but acting for himself in her name. Appellant herself testified, when her attention was called to the description of these specific properties, that she had no idea where they were located and had no knowledge of the names of persons from whom they were conveyed to her. She had no knowledge of what was paid for said property, whether it was paid for in cash or by other real property, does not remember as to money borrowed on any of it, when the titles were acquired, nor, as she testifies with reference to one part of the real estate in question, “how or what I paid for it, or from whom I got it, whether it was for cash or at a trade or part cash or part trade.” Her explanation of the way in which she acquired the money which she testified was invested by her husband under her direction in the properties in controversy is that money and certain real estate were given to her by her husband in the early part of her married life, and that the proceeds “have been traded, sold and resold and the proceeds invested again and again.” As to three pieces of property specifically mentioned in her testimony she cannot say whether or not they are standing in her name, and if they do so stand, whether they belong to her or to her husband.

It is, we think, apparent from the evidence that Richard Curran was acting in reference to the properties in question independently of his wife, that he did with them just what seemed to him best without any consultation with her and without her knowledge. It appears also that titles to properties acquired by him were taken in the names of other parties, and that some of these were subsequently deeded to appellant. Richard Curran kept on hand blank deeds signed by his wife, which he filled in and used as he saw fit. Cash received in these transactions went into his own bank account. He kept no books showing any interest of his wife in the property in controversy, and other than the fact that the titles stood in the wife’s name there was no memorandum, nothing in his books or in his bank account which tended to show that she had any interest whatever in any of the property in question so handled by him as his own. Appellant testifies that she never had a dollar or piece of property except what her husband gave her, and she does not know what has been the result of his trading with such property as she says he gave her. She admits that she has the title to certain real estate which she says she is informed he ownes and which she says she is willing to turn over to the receiver, but she has no knowledge of this or of other matters relating to the property in her name, as she states, except what she received from her husband. “He bought the lots, let the contracts, determined the amount of payments, paid the money, borrowed it when necessary, sometimes in his own name,” apparently not only without her consent but without her knowledge. It is no doubt true that, as said in Alsdurf v. Williams, 196 Ill. 248, “If the property belongs to the wife it cannot be taken for the debts of the husband, and all the securities and legitimate outgrowth of the investment are as absolutely hers as the original capital,” and that “A wife acting in good faith is not obliged to resort to strangers to transact her business, but may make her husband her agent without imperiling her property. ’ ’ In the case at bar, however, the evidence fails reasonably to account for the acquisition by the wife of property in controversy. Bichard Curran testifies, “The property my wife has came from the sale of the house 6216 Kimbark avenue,” and apparently this house represented all that Bichard Curran claims to have given his wife up to the time of the transaction out of which arose the litigation which resulted in the decree in favor of the complainant in this case.

We deem it unnecessary and it would serve no good purpose to follow the evidence specifically as to each separate piece of property referred to in the decree. We have carefully examined the evidence and note what is said in appellant’s brief as to the history of the several properties involved. It is claimed in behalf of appellant that it does not appear by a preponderance of the evidence that appellant held title to these various pieces of property for the benefit of her husband, that there has been no trust shown, no conveyance to appellant for the use of her husband, and that it does not appear that Bichard’s money went into the property in controversy. Appellant’s counsel, however, overlooks that as against creditors, transactions between husband and wife are viewed with suspicion where there is evidence tending to show that the husband was merely using the wife’s name to cover up his own transactions. In such case the burden is upon the wife when claiming title to real estate to establish her ownership by a preponderance of the evidence. In Victor v. Swisky, 200 Ill. 257-260, the wife testified that she had loaned her money to her husband, that she never had a note, never asked for one, never received any interest, never asked him to repay the money, knew nothing about the conveyance in question, did not ask for it, did not know the amount of the property conveyed, its value or location, nor did she know how much, if anything, was to be credited upon her husband’s indebtedness by reason of the conveyance referred to. The court said that the husband, Although insolvent, had the legal right to prefer his wife if she was in fact a bona fide creditor, but the grantee being his wife, proof of the good faith of the transaction should be full and clear.” The testimony in that case showed a state of facts much more favorable to the wife’s claim than the evidence in the case at bar. It there appeared that the wife had received money from her father which she had delivered to the husband. In the case at bar, however, it is not claimed that the wife had any money or resources except such as she claims her husband gave her. The burden of proof rested upon appellant to show how she acquired the properties in question and that she was in good faith entitled to retain them as her own as against the creditors of the husband, there being no controversy as to the fact that she received title to them from him. As said in Yates v. Law, 86 Va. 117, “In a contest between any creditors of the husband and wife there is and there should be a presumption against her which she must overcome by affirmative proof.” There is evidence clearly tending to show that property of the husband was put in the wife’s name to avoid the claims of complainant. The husband conducted some of his real estate transactions in the names of other parties besides his wife. It appears that these parties had no interest in the properties which without consideration they deeded to appellant. We are of opinion the evidence fails to satisfactorily support appellant’s claim of ownership of the property in dispute by affirmative proof.

It is urged in behalf of appellant that to recover, complainant should have averred and proved that he was a creditor of Bichard Curran at the time of the conveyance of the property in question, and that Bichard was insolvent at that time, citing Bridgford v. Riddle, 55 Ill. 261-263. As to a portion of the property it appears the titles were put in appellant’s name since the commencement of the suit which resulted in the money decree in favor of complainant upon which decree the creditor’s bill now under consideration is based. If, however, as there is evidence tending to show, such conveyances to appellant were made not with any intention of conveying to her any more than the legal title while the real ownership remained and still remains in the husband, it is immaterial when such conveyances were made.

Finding no material error, the decree of the Circuit Court must be affirmed.

Affirmed.