Rynders v. Crane ( 1870 )

By the Court.^*

Joseph F. Daly, J.

The question first to be considered in this case, is whether Mrs. Bynders can maintain this action without joining her husband as plaintiff, or waiting until she obtained title to the notes by his death. Her husband, Isaiah Bynders, by giving certain considerations to Wm. E. Burton, procured Burton to execute to the order of Mrs. Bynders two negotiable promissory notes, dated May 1, 1859, each for $2,000, without interest, one payable two years and the other four years after date. Burton delivered these two notes to Mr. Bynders, who took them and gave them to his. wife, saying “ there was a present for her,” and she thanked him.

After the death of Burton, she indorsed the notes to have them sued upon, at the request of her husband, and delivered them to him for that purpose. She stated that she gave no consideration for the notes, but also states that she gave to her husband a portion of the patrimony received by her several years before. The parties were married in 1854, and the notes of Burton were procured and delivered to her in 1859.

This action was commenced in 1863.

At common law, the plaintiff would have had no right of action. Even though Burton had made the notes payable tó Mrs. Bynder’s order, and her husband had delivered them to her, he had the right to repossess himself of them, to receive payment of them and to sue for and collect them from the maker. His gift of them to his wife conferred on her no right of which he could not divest her 'at will during his life-time, and only upon his death would the right of action ensue to her. This rule has been settled beyond dispute. (Gates v. Madeley, 6 Mees. & Welsby, 425.)

The husband could not procure any conveyance to his wife of personal property which he could not immediately after-wards reduce to his own possession, and no declarations or acts of his could confer on her more than the right of survivorship. The Act of 1848, however, prevented the husband possessing himself of property belonging to his wife, and the act of 1849 prevented his possessing himself, by marital right, of any property she might acquire by gift from any person save himself. So far as direct gifts from husband to wife are concerned, the common law is unaltered.

A husband cannot make direct conveyance to his wife except under the terms of the statute. But where a third person conveys to the wife, the Statutes of 1848 and 1849 vest the property in her without question.

It may be that where the consideration of such conveyance is paid by the husband, the interposition of a third person is a device to make the laws of 1848 and 1849 operative and escape the common law disability.

But this question the Courts will never inquire into save on the application of a creditor of the husband; no other person, still less the very third party who made the conveyance or his personal representatives, will be permitted to question the title of the wife so far as it depends upon the consideration flowing from her to her husband.

In this case the notes in suit are not to be deemed a gift from Mr. Rynders to Mrs. Rynders in the view of the common law, but are to be considered as a conveyance to Mrs. Rynders from Burton, or rather a contract between her and Burton in which the husband has no concern. Mr. Rynders had a right to make over a consideration to Burton to induce the latter to enter into an obligation with a third party, and that this third party is the wife of Rynders does not affect the liability of Burton in his contract: his contract is with the wife alone; he is liable to her alone, and his rights are fully protected by an adjudication in the action brought by her. It is now impossible for Mr. Rynders to pursue Mr. Burton’s estate for any debt which formed the consideration of these notes, even if the right of action continued in Rynders notwithstanding the notes, since the Statute of limitations would prevent such an attempt, and it is difficult to see what wrong can be done by suffering the action in its present shape to proceed.

The only valid plea of the defendants to this action is the validity of the consideration of the notes as between Burton and Mr. Rynders. The defendants claim that the notes are void because they are mentioned in the illegal agreement' made by Burton and dated Nov. 26, 1858. They do not appear to be any part of the consideration of that agreement. If that corrupt agreement were carried out it would appear that Rynders and not Burton was to pay the notes. Burton had made the notes to Mrs. Rynders and was prima facie liable upon them. He then agrees to pay Rynders $15,000 on a corrupt consideration ; but this $15,000 was not to be paid unless Rynders should resign these two notes.

They were the wife’s property, and the presumption must be that Rynders in order to get them, to deliver up to Burton must purchase the notes from his wife, and this before the last one was dhe. This corrupt agreement does not on its face affect the wife. She holds a claim against Burton, and the latter enters into an illegal bargain whereby Rynders is to pay them.

She is not a party nor privy to this bargain; whether it holds, or not, she has her claim against the maker providing there is a good consideration to sustain them. The defendants then introduce testimony of the declarations of Burton to a third party (Burton being dead at the time of the trial) to show that these notes were given by him to Rynders as part of the corrupt bargain which resulted in the illegal agreement of Nov. 26,1858 ; the plaintiff introduces testimony to show that, wholly apart from that bargain, Burton was before Nov. 26, 1858, indebted to Rynders in about $3,000, for borrowed money for which due bills were held by Rynders. Burton went to Baltimore with an enclosure for Rynders containing the due bills to meet Rynders and effect a settlement with the latter, and in the spring or summer of 1859 Rynders returned with the notes. The whole testimony was sufficient to warrant a finding that the settlement was concluded on the basis of giving the notes for the due bills : Burton said it was so, and the long time the notes were to run, taken with the uncertainty as to the amount of interest then accrued on the due bills, added to the legal interest which was included in the notes for the time they were to run, might have properly made up the full face of the notes. The question was one of fact and was wholly left to the jury by the exceedingly full and fair charge of Chief Justice Daly, who presided at the trial. .

° The jury found for the plaintiff, and the evidence was sufficient to warrant the verdict. This disposes of the case. The judgment should be affirmed.

Judgment affirmed.

* Present, Loew, Larremore and J. F. Daly, J. J.