Gleghorne v. Gleghorne , 118 Pa. 383 ( 1888 )

Opinion,

Mr. Justice Paxson :

The question of jurisdiction was directly raised in this case. The master found, however, that it was not raised by the pleadings, and was, “therefore, of opinion that the question of jurisdiction cannot be entertained so as to allow the objection to prevail after the parties have volunteered to proceed to a hearing upon the merits.”

This was a bill filed by a wife against the husband for the sole purpose of recovering a sum of money which she gave him to aid in the erection of a house for their joint home. The husband had bought the lot before marriage. After that event he contracted for the building of a house thereon to cost about $2,500. The wife alleged she contributed $1,500 towards this object. To use her own words, “I gave that money to my husband towards paying for our home.” There was no allegation that anything was said about its being a loan to her husband or that he was to repay her.

It is certain that no action at law would lie by the wife against the husband for this money. ' So much was settled by Ritter v. Ritter, 31 Pa. 396. There are, however, authorities which hold that as concerns her separate estate a wife may file a bill against her husband: Brightly’s Equity, § 521; 1 Dan. Ch. Pr. 142. Whether these authorities are applicable to this case will not now be discussed, as we propose to decide it upon other grounds. The question of jurisdiction is left open.

It may be mentioned, as one of the results of such a proceeding as this, that the wife was called and examined as a witness directly against the husband. Indeed, the bill could not be sustained without her testimony.

The defendant in his answer admits that he received about $800 from the plaintiff, but alle'ges that it was á gift. His precise language is: “ The respondent avers that the said sum of $800 was given him, the respondent, by the complainant.” He had previously averred that “there was no agreement, contract, or understanding between the complainant and respondent that he was to repay or return said money, or secure the same in any way.” This makes a distinct averment of a gift of the money as opposed to a loan. As it is responsive to the bill, the case comes within the familiar rule in equity that the answer must have more than the oath of the plaintiff to overcome it. There must be two witnesses, or the oath of one and corroborating circumstances.

The learned master evidently felt the strain of this, and he avoided it by holding that the answer was not responsive, but set up new matter by way of avoidance. He says: “ The matter of a gift was not stated or inquired of in the bill, but the defendant introduces it in his answer affirmatively against the demand in the bill.” The case was disposed of upon the theory of a loan to the defendant. Yet there is not a word in the bill, or in the testimony, to indicate that it was a loan. There is merely averment and proof that plaintiff gave defendant a certain sum of money to aid him “ to pay on our home.” The answer is not only responsive, but it is in entire harmony with the averments of the bill. There being no sufficient proof to overcome the answer, the bill should have been dismissed for that reason.

Even if we are mistaken in this, we think the case is ruled by Johnston v. Johnston, 31 Pa. 450. There the wife’s money was received by the husband under circumstances very similar to those existing in this case, and was appropriated by him at her request towards the fitting up of a house for her own comfort, and that of her family, and the court held that she could not recover it back in an action against her husband’s administrator. I am unable to see any material distinction between fitting up a house as a home, and assisting in building a house for a home. In each case the wife expected to use and enjoy the fruits of her money in a home which she would occupy in common with her husband. In the case in hand the money may have been unwisely employed. But the law cannot supply wisdom to those who lack it, nor can it remedy all the mistakes which a man or a tornan may make in the course of a lifetime. In the present case, the wife evidently contributed this money for the completion of a house which was to be her home without a word or a thought about repayment. The husband cannot be treated as her trustee because he appropriated the money as she directed. The plaintiff says in her testimony : “ When I gave him the money, I told him to pay it on our home.....He took .the money and paid it out; it went into the house ; it was for the purpose of paying the contractor.” This is entirely inconsistent with a loan, or with a trust on the part of the husband.

The decree is reversed, and the bill dismissed at the costs of the appellee.