Ball v. Phenicie ( 1892 )

Montgomery, J.

This is a bill in aid of execution. Complainant levied execution upon real estate formerly the property of David L. Phenicie, which was conveyed on May 31, 1889, to Eliza A. Phenicie, the bill alleges, without consideration, and in fraud of creditors; and complainant asks that the deed be set aside and held void as to him. The answer denies the alleged fraud. The cause was heard in open court, before the circuit judge, and a decree was made dismissing the bill, with costs against the complainant. Complainant appeals.

The theory of the defense was that David L. Phenicie became indebted to his wife for moneys advanced and loaned by her from time to time, and, as is usual in such cases, the aggregate amount claimed to be due is the various sums originally advanced by the wife to the husband, together with interest, without any deduction whatever on any account. Such a course of dealing is so against common experience as to call for a very careful scrutiny of the testimony by the court. It is not the common course for a lady possessed of considerable means to continue in possession of an estate for a long term of years without applying or appropriating one dollar of it to any purpose whatever, and while it is the duty of the court to protect the property rights of married women, even as against the creditors of the husband, it is no injustice to the parties in a case like the present to apply, in construing the testimony, such fair presumptions as the common experience of mankind suggests. The learned circuit judge found as a fact that the value of the real estate conveyed was $10,000, and it appears that, at the same time that the real estate was conveyed, $350 worth of personal property was also transferred. The circuit judge also found that, at the time the deed was made, the indebtedness due from defendant Phenicie to his wife amounted to $8,181, which, as before stated, included all the sums advanced, together with interest thereon, deducting, however, from her claim the value of 40 acres of land, which she testified was given to her by her husband as a New Year’s gift in January, 1875.

I am satisfied from a careful examination of the record that the circuit judge reached the correct conclusion in deducting the value of this 40 acres from the sum due to the wife. It is suggested that, as the complainant called the defendants as witnesses, he is bound to accept their .statements. This does not preclude the court from construing their testimony, and if, from the whole course of dealing of the parties, the court is convinced that it was the intention hy the purchase of the 40 acres to set aside so much of the funds which had come to the defendant Mrs. Phenicie from her father’s estate, there is ample justification in charging her with it. The circuit judge, who heard the testimony and saw the witnesses, reached this conclusion, and, in my opinion, his conclusion on the •question of fact should not be' disturbed.

But it is said that the disparity between the amount of indebtedness from the husband to the wife and the value of the real estate is so small as not to suggest any intention to defraud. The parties may have been mistaken as to the amount, but, if so, there is no reason why the defendant Eliza A. Phenicie should not be chargeable with the unpaid portion of the purchase price. It is not a case where the question is whether the inadequacy of the consideration is such as to render the transaction void as t<J creditors, but it is clear that the intent was, on his part, to sell the land to defendant at the agreed price of $10,000. If, from mistake or for other reason, she failed to pay the full consideration price, it is not an injustice to require that that payment be now made.

I think that the land should be held subject to a vendor’s lien, amounting to $2,169, and this complainant subrogated to the rights which the vendor would have in the premises; and that a decree should be entered for complainant for that sum, with interest from the date of the transfer,— May 31, 1889; and that, in case of failure to redeem within 90 days from the date of this decree, the land should be sold to satisfy the amount of this lien. The complainant should recover costs of both courts.

Long and Grant, JJ., concurred with Montgomery, J.