Pearson v. Pearson , 60 N.H. 497 ( 1881 )

Whether there was a valid debt due from the defendant to the plaintiff we need not inquire, for, in the absence of fraud, actual or intended, either as to present or future creditors, the defendant had a right, at common law, to make a gift to the plaintiff as a post-nuptial settlement. The statutes have not changed the common law in relation to such settlements. Gen. St., c. 164, s. 14; Sch. Dom. Rel. 276, s. 16; 2 Kent 440; 4 Kent 463. But, the creditors say, admitting it to be true that the defendant might make a valid gift to his wife, she could not hold the property which was the subject of the gift to her sole and separate use, and therefore cannot maintain an action upon the note in suit, which was given for the property or the avails of it: she cannot maintain it, either at common law or under the statute, and Patterson v. Patterson, 45 N.H. 164, is cited. But there being no fraud, the creditors can make no defence to this suit that the defendant cannot make; and the question therefore is, Has the defendant a valid defence to the note? Two defences are urged, — first, want of consideration; second, inability of the wife to contract and sue.

The bonds were given to the wife in payment of the amount then considered due her from the defendant, on account of previous loans and the accrued interest. If it is conceded that the plaintiff did not take the bonds in payment of a debt legally due her and which she could enforce the payment of, the husband is still estopped to deny her title. If it was a gift, it was not prejudicial to creditors, and the donor was under no legal incapacity to make it, and was not circumvented by fraud. In any view of the transaction there was an equitable consideration as between the parties, and as against all others who have no greater rights; and if the bonds were an absolute gift, it became perfected and irrevocable by delivery and acceptance, and the plaintiff acquired a perfect title.

But it is urged that the statute, in force when the bonds were delivered by the defendant to the plaintiff, empowering a married woman to hold to her own use, free from the interference and control of her husband, all property inherited by, bequeathed, given, or conveyed to her, contained a proviso that such conveyance, gift, or bequest should not be occasioned by payment or pledge of the property of the husband (Laws 1860, c. 2342, ss. 1, 3), and that the bonds having been given to the plaintiff by her husband, she did not hold them to her sole and separate use.

One object, if not the sole object, of this proviso was, to prevent the husband from placing his property in the hands of the wife to prevent its seizure for his debts. The intention was, by using general and comprehensive terms, to embrace all cases where the effect of the transaction, whatever machinery might be used for the purpose, would be to put the husband's property in the hands of the wife in fraud of his creditors. This being the purpose of the proviso, it has no application here; for the jury have found that there was no fraud in fact, and, as a consequence, the plaintiff acquired and held the bonds in the same manner and with the same rights, in respect of them, as if they had come to her from any other source. Patterson v. Patterson is therefore not in point.

In Vogt v. Ticknor, 48 N.H. 242, 250, the evidence tended to show that the husband was in debt and in embarrassed circumstances when he made the conveyance to his wife. If it was held in that case that under the act of 1860 property given by the husband to the wife, not in fraud of his creditors, is not held by her to her own use free from his interference and control, the decision on that point cannot, in our opinion, be sustained.

In this case, the bonds furnished a sufficient consideration for the original note, and consequently for the note in suit; and it being settled here that the husband and wife may contract with each other in reference to her separate estate, and that either may maintain a suit at law against the other in respect of those contracts (Clough v. Russell, 55 N.H. 279, and cases cited), there must be

Judgment on the verdict.

All concurred.