Brown v. Wood , 121 Mass. 137 ( 1876 )

Devens, J.

In order to prove a consideration for the bill of sale of the property conveyed to her (through a third person) by the husband, the plaintiff endeavored to show that it was made in repayment of a loan by her. The transaction upon which she relied was one which took place between the husband and wife when no one else was present, and her statement that it was a loan necessarily involved a statement that, when the money was delivered by her, there was in some form a promise on the part of the husband to repay. A mere delivery of money by the wife to the husband would not raise a presumption that the money was to be repaid by him. Jacobs v. Hesler, 113 Mass. 157. The testimony of the wife was therefore objectionable as being her statement of the contract, which was immediately in issue, made in a private conversation with her husband, and is excluded by the terms of the statute. St. 1870, <?. 393, § 1. Jacobs v. Hesler, ubi supra, and cases cited. The testimony of the witnesses, to whom the husband and wife had both stated that it was a loan, was even more objectionable, as it was necessarily only a repetition of what the husband or wife had stated to have been the substance of their conversation. The learned judge therefore erred in admitting this testimony, and it was not shown by competent testimony that the relation of debtor and creditor (assuming that it could exist) ever had existed between the husband and wife.

Whether, if it had been established by competent testimony that there was a promise by the husband of repayment of the money, such promise would have rendered the conveyance by the husband, as regards the rights of creditors, other than a vol untary one, need not be considered. Bassett v. Bassett, 112 Mass. 99. It is to be observed that there was no claim that the money had been delivered to the husband upon any specific trust to be by him invested in any property or estate for the benefit of the wife, or even that the property transferred to her was purchased by this money. Bancroft v. Curtis, 108 Mass. 47. Hayward v. Cain, 110 Mass. 273. Exceptions sustained.