Wilson v. Silkman , 1881 Pa. LEXIS 106 ( 1881 )

Mr. Justice Gordon

delivered the opinion of the court, May 2d 1881.

On the 10th of June 1878 Daniel Silkman executed his judgment-note to William Shoemaker in the sum of $11,755.12 in trust for his wife, Catharine Silkman. On this note, judgment was entered on the 21st of November 1878. At the time of the execution of the note above mentioned, Silkman was a member of the firm of Silkman, Winton & Co., which firm was largely indebted, so largely, indeed, that it appears from the evidence it was unable fully to liquidate its obligations, in other words, it proved to be insolvent.

It appears, further, that on the 4th of June 1878, a judgment was éntered in the. Common Pleas of Luzerne county against Silk-man, and in favor of Almira and Sarah A. Silkman, in the sum of one thousand dollars. This judgment was transferred to Lackawanna county on the 12th of December 1879; upon it execution was issued, a levy made upon the property from which the fund in controversy was raised, and sold by the sheriff to Catharine Silkman, the defendant, for the sum of $10,150, she having on the same day received an assignment of the judgment on which the sale was made. She being thus the owner of the first, as well as the second judgment against the property, claimed the right to have them receipted upon her bid. To prevent this 'the plaintiffs, creditors of Silkman, Winton & Co., who in the mean time had obtained judgments upon their claims, interposed, and at their instance, the issue now trying was framed.

Prom this summary of facts, about which there is little or no dispute, we turn to the legal question on which the case was determined in the court below.

Several assignments of error have been presented for our consideration, but as the ruling of the court below on the plaintiff’s first point in effect involves the whole controversy, we may confine our attention to it alone. That point reads as follows: “ When a judgment is taken in the name of a trustee for the wife against the husband, it is necessary for the wife, in a contest with creditors of the husband, as in this case, to establish that the judgment was taken bona fide to secure a debt of the wife from the husband from moneys of the separate estate of the wife. In the absence of such proof, the judgment must be regarded as fraudulent and void as against such creditors.”

The point thus put was refused by the court.

We hesitate not to say that in this the court made a mistake. Under the circumstances of the case, the affirmative was upon the defendant. It was for her to show that the judgment executed to the trustee for her use by her husband represented the proceeds of he'r separate estate. The contest was with her husband’s creditors, and if the judgment was not founded upon a valuable consideration, however good it might be against him or his estate, it would be fraudulent and void as to contemporaneous creditors.

Before the Act of 1848, the marriage contract vested the right to the personal property of the wife in the husband. She had no such thing as a separate and independent personal estate. Since that act, she may not only continue to own and hold the property she had at the time of the marriage, but she may, during coverture, acquire a separate estate.

In favor of such an estate, however, there is no legal presumption, but the contrary ; the husband is presumed to be the owner of the property of which ho and his wife have the joint possession. Does she purchase lands or goods, their price is presumed to come from the pockets of the husband; or does he transfer to her property, real or personal, it is presumed to be a gift from him to her. Thus the Act of 1848, whilst it makes it possible for a feme covert to have and enjoy a separate estate, raises no presumption in favor of the existence of such an estate. She must affirmatively establish that fact, and this, not only because of the ease with which the husband’s creditors might otherwise be defrauded, hut because, ordinarily, it is impossible for her to have a possession separate and distinct from her husband; hence one of the most obvious and prominent marks of proprietorship is, in her case, not only wanting, hut such possession being usually attributed to the husband, a presumption of his ownership naturally follows by which his credit is increased. Even in a case where a widow claims property as against her husband’s estate, it has been held “ that she must show by evidence which does not admit of a reasonable doubt, either that she owned it at the time of her marriage, or else acquired it afterwards by gift, bequest or purchase. In ease of a purchase after marriage, the burthen is upon her to prove distinctly that she paid for it with funds which were not furnished by the husband.” Black, J., in Gamber v. Gamber, 6 Harris 363. Again it was said by the same learned justice in Keeney v. Good, 9 Harris 349, “ To bring the property of a married woman under the protection of the Act of 1848, it is made necessary by the letter, as well as by the spirit of the statute, to prove that she owns it. She must identify it as property which was hers before marriage, or prove how she came by it afterwards. Evidence that she purchased it, amounts to nothing unless it be accompanied by clear and full proof that she paid for it by her own separate funds. In the absence of such proof, the presumption is a violent ono that her husband furnished the means of payment.”

Like doctrine will he found in Gault v. Saffin, 8 Wright 307, and many other cases to which we need not revert.

Applying the rule thus established, to the case in hand, and the error of the court below is obvious. Here is the confession of a judgment in the sum of S11,000 by a husband to a wife, at a time when he was in fact insolvent. She furnishes no proof that she had so much as a single dollar to invest in that or any other kind of property, and yet by all rule she was bound to show by clear and full proof that it was confessed to her for a valuable consideration proceeding from her own separate estate, acquired either independently of her husband, or, if from him, at a period antecedent to his indebtedness. The inquiry is not only a legal hut a natural one, How did she 'get the right to demand so large a sum of money from her bankrupt husband ? If, indeed, she has nothing else to depend upon than the presumption arising from his act in the confession of the judgment, she is leaning upon a broken staff, for the husband’s confession of a judgment to his wife is, prima facie, little better than the confession of a judgment to himself.

The presumptions are all against the defendant’s right to the money in controversy, and unless she proves to the satisfaction of a jury, that the consideration for the judgment against her husband was money, or other property, from her separate estate, she cannot maintain her claim.

The judgment is reversed, and a new venire ordered.