Kuhn v. Stansfield , 28 Md. 210 ( 1868 )

Robinson, J.,

delivered the opinion of this Court:

In August, 1863, Michael J. Kuhn, advanced to his daughter, Mary A. Somerville, by way of settlement, the sum of eight hundred dollars, as appears by the' following receipt, signed by herself and husband:

“ Ellicott’s Mills, Aug., ’63.

“We hereby acknowledge that We have received of M. J. Kuhn, eight hundred dollars ($800) as an advancement, with a view to a portion or settlement of his daughter, the undersigned Mary.

“ Mary A. Somerville,

“ J. H. Somerville.”

In March, 1866, Somerville being largely indebted, executed the bill of sale set forth in the proceedings, and a few days afterwards, the appellee and other creditors, sued out writs of attachment against him as an absconding debtor. The validity of this bill of sale, as against the existing creditors of Somerville, is the question submitted to this Court. It is conceded that a contract may be entered into, by a husband, for the transfer of property to his wife, for a bona fide consideration coming from her. The cases of Stockett, Adm’r, vs. Holliday and others, 9 Md. Rep., 480, and Jones, Adm’r of Horsey, vs. Jones and Wife, et al., 18 Md. Rep., 467, were decided upon this established principle of law. It is equally well settled, that the relation of debtor and creditor may exist, growing out of the appropriation, by the husband, of the wife’s separate property; but if received and appropriated, with her knowledge and acquiescence, this Court has said, in Edelen vs. Edelen, 11 Md. Rep., 420, that “in such cases, there must be an agreement by the husband to repay the money so appropriated.”' The case now before us must be decided by the application of this general principle of law. It is wholly immaterial whether Somerville received the money from his wife, or Kuhn, her father, the question being whether he received and appropriated it, with the wife’s knowledge and acquiescence, in pursuance of an agreement to repay it. This must be determined from the face of the bill of sale and receipt, no other proof being offered in the cause. That it was received with the knowledge and acquiescence of the wife, admits of no doubt, and as to the agreement to repay it, both papers are entirely silent. It is neither expressed in the receipt, nor alleged by way of consideration in the bill of sale. The receipt is but an acknowledgment of the money advanced by the father, with a view to a settlement, and was taken for the obvious purpose of preserving the evidence of that fact. In the bill of sale Somerville admits the receipt of the money; that it was invested in his business, and expresses a desire to return it, but it is nowhere alleged, that the conveyance was made, in consideration of an agreement to repay it. Upon such proof as this, or in fact, in the absence of all proof, this Court cannot infer that such an agreement was made. The bill of sale, therefore, must be considered as a voluntary conveyance, executed by a party, in the language of Judge Martin, in Worthington and Anderson vs. Shipley, 5 Gill, 460, “ literally loaded with debt,” and as it does not appear that there was other property to satisfy the demands of prior creditors, it must be pronounced as against them, void.

The case of Gover vs. Owings, 16 Md. Rep., 99, does not exempt this cause from the operation of the general principles of law as above stated. If it be admitted, that the husband became by operation of law, trustee of his.wife, and in that capacity received the money, he could only be responsible for the misapplication of the funds received.

If appropriated with the consent and knowledge of his wife, it cannot be said that he was guilty of a violation of the trust. Being her separate property, all the authorities concur in saying, that in thus permitting the husband to receive it, she is precluded from making any demand. 2 Roper on Husband and Wife, 220, (32 Law Lib.) In the case of Gover vs. Owings, the wife did not claim the money which was paid to the husband by her consent, but the subsequent payments, made without her knowledge.

The questions decided in Wickes vs. Clarke, 8 Paige Ch. Rep., 161, are not involved in this case. In that case, the personal property conveyed by way of settlement, came to the wife by descent, and upon a bill by the creditors of the husband, it was held that inasmuch as a Coui’t of Equity would have compelled a settlement in favor of the wife, by the husband, or those claiming under him, there could be no reason for setting aside a settlement voluntarily made. In the case now before the Court, the creditors of Somerville are not seeking payment through a Court of Equity, as against the property of the wife, but are claiming that the property of the husband, which by a voluntary conveyance he has attempted to place beyond their reach, shall be held liable to satisfy their just demands.

(Decided 12th February, 1868.)

Judgment affirmed.