McGinnis v. Curry , 13 W. Va. 31 ( 1878 )

Green, President,

delivered the opinion of the Court:

Before considering the merits of this case we must dispose of the preliminary question, whether the award made in this case can be entered as the judgment of this Court. This will, as we shall presently show, depend upon the authority of the counsel of the appellants, as such, to consent to the submission by the agreement in pads entered into by him.

syllabus 2. The authority of an attorney at common law, by a consent order made in the court, to submit a pending suit to arbitration, is universally admitted. And the court, in cases where such a consent order has been made at the instance of counsel, have frequently spoken of the authority of counsel to submit a controversy of his client to arbitration in general language, which would be broad enough to include, not only a ease of a submission of a controversy in a pending suit by an agreement of counsel in pais, but even a controversy about which no suit was pending. But all the cases, in which such loose and general language was used, were cases, where the authority of" the counsel was exercised, not only in a pending suit, but by a consent order agreeing to the submission made in open court. See Wilson v. Young, 9 Barb. 101; Holker v. Parker, 7 Cranch 449; Somers v. Balabrega, 1 Dallas 177; Bingham’s trustees v. Guthrie, 19 Penn. St. 418.

In England, though, so far as I know, it has never been decided, that an attorney had a right to submit his client’s controversy to arbitration, when no suit was pending, or by an agreement in pais, and not by order in court, when a suit was pending, yet there are English cases, from which it may be inferred, that the courts may .there consider the power of the attorney to submit his client’s cause to arbitration in general, and not confined to pending suits, or to orders of reference made in court. See Banfil v. Leigh & Jeffray, 8 T. R. 571; Jamison v. Binns & Dean, 4 Ad. & E. 945 (21 Eng. C. L. 231). ]But in considering how. much .weight should be attached to these dicta of English judges, it should be remembered that an attorney in England occupies toward his client a very different relation from what he does in this country. There he is very frequently the general agent of the client, and transacts a great deal of his general business. But here an attorney is generally employed to attend to his client’s interest in reference to some single controversy.

In Pennsylvania too there are decisions, which might seem to imply, that the power of an attorney, to submit to arbitration, was not confined to the making of a consent order in a pending cause to refer it to arbitration. See Bingham’s trustees v. Guthrie, 19 Penn. St. p. 419. But in considering what weight should be attached to the dicta of Pennsylvania judges, it should also be borne in mind, that in Pennsylvania the authority of attorneys is more extensive than elsewhere. See Lynch v. Commonwealth, 16 Serg. & R. 388; Wilson v. Young, 9 Penn. St. 101.

While I have found no case deciding that an attorney has a general authority to submit his client’s controversies to arbitration, there are cases, in which it has been decided, that he does not possess such general authority. See Jenkins et al. v. Gillespie, 10 Smedes & M 31; Scarborough v. Reynolds, 12 Ala. 252.

It is true, that these were cases in which there was no lis pendens. But it seems to me, that as it is held, that an attorney by reason ol his being employed to institute a suit or defend a threatened suit has no authority to submit, by an agreement in pais signed by the attorney, the case to arbitration, that it must follow, that he has no such authority, though the suit be pending. An authority to act in pais could only be inferred, if it exist, from his employment before the institution of the suit as an attorney ; and such employment we have seen confers no such authority.

This conclusion is not at all inconsistent -with the numerous causes deciding, that an attorney has authority in a pénding suit by an order of court to submit the cause to arbitration. When the courts have assigned any reason for their decisions, they have been based not merely, if at all, on the employment of the counsel by the client, but on the fact, that he is an officer of the court acting in the presence and under the control of the court, and as such has a right to take any legal steps, he may deem proper, in prosecuting or defending the suit. Thus at the trial of the case he may admit facts, and his client is bound by such admission; he may confess a judgment in court, which will bind the client; he may demur to the evidence, and thus prevent a jury from acting on the case; and he may do many other acts in court, by which his client may be prejudiced, but by which he is nevertheless bound; and Avhy, it is asked, may he not in court consent to an order submitting the case to arbitrators, this being one of the legal modes of prosecuting or defending a suit? See Talbot v. McGee et al., 4 Mon. 377; Wade v. Powell, 31 Geo. I; Buckland v. Conway, 16 Mass. 396; Smith v. Bossard, McCord’s Ch. 408.

But this reasoning has no application to any action of the attorney in pais, such as agreeing to submit the case to arbitrators by an agreement signed by him without any special authority from his client. Such an act on his part is in principle undistinguishable from a similar act, done by him before the institution of the suit. And I therefore conclude, he has no authority to so act.

The award therefore returned to this Court is not obligatory on the appellants, because their attorney had no authority to sign the agreement to arbitrate.

It would not necessarily follow, that the award is a nullity, as it is possible, that the attorney, who signed it without authority, might be bound to perform the award. See Iveson v. Covington, 1 B. & C. 160 (3 Eng. C. L. 50); Bacon v. Dubarry, Salk. 70; 1 Caldwell on Arbitration, p. 152. But on this question I express no opinion.

Syllabus 3. If the agreement to arbitrate had been entered into by the parties, or by some one duly authorized to make such agreement, I think this Court could have entered up the award of the arbitrators as its decree. In the case of Heslip v. San Francisco, 4 Cal. 1, the parties entered into an agreement to submit to arbitration. The agreement was entered into, not in court but in pais, and it provided, that the award should be entered up as the judgment of the court; but the court of appeals held, that this agreement was a volnntai’y withdrawal of the case from the jurisdiction of the court, by which the' court lost all control over the cause, and it had therefore no authority to enter up judgment on the award, except by consent of parties. If this be law, it furnishes an additional reason, why an attorney could not enter into an agreement in pais to submit a pending case to arbitration; for by so doing he would withdraw the case from the jurisdiction of the court entirely, and his submission would have the same operation, as if he had submitted the matter in controversy to arbitration before suit; and this, we have seen, he has no authority as counsel to do.

But in a similar case in Mississippi it was held, the award could be entered as the judgment of the court on common law principles. The Chief Justice dissented from this opinion. See Wear v. Regan, 1. Miss. 83.

In Rogers’s heirs v. Hall, 6 Humph. 29, it was decided, that by the common law unaided by statute, if after a case is pending in the court of appeals the parties in pais by an agreement, whereby the award was to be entered up as the judgment of the court, submit the cause to arbitration, and the arbitrators made an award, such award may be entered up by the court of appeals as its decree.

It is unnecessary for us to determine, whether this decision, or the California case, lays down the law correctly ; for whatever doubt there may have been on common law principles of the right of this Court to enter up a judgment, or decree on an award under such circumstances, that doubt is removed by the provision of our statute law. The first section of chapter 108 of the Code of W. Va. provides, that “persons desiring to end any controversy, whether there be a suit pending therefor or not, may submit the same to arbitration, and agree, that the same may be entered of record in any court. Upon the proof of such agreement out of court» or by consent of parties given in court in person, or by counsel, it shall be entered in the proceedings of such court; and thereupon a rule shall be made, that the parties shall submit to the award, which shall be made in pursuance of such agreementand the third section of this act provides, that “ before the return of such award made under such agreement ('whether any previous record of submission, or a rule therefor, has been made, or not) it should be entered up as the judgment or decree of the court, unless good cause be shown against it at the first term, after the parties have been summoned to show cause against it.”

The language of this statute authorizes any court to enter up the award as its judgment, though the agreement to submit has been made by the parties, and no entry of it has been made of record. It applies to all cases pending, whether in this or in any other court; and by its words authorizes this Court to enter up as its decree an award thus made.

It is-true, so much of this statute, as provides for the arbitration of suits not pending, and the entering up of the awards by the court, to whom by the agreement of parties the award was to be returned, is necessarily inapplicable to this Court, as to enter up an award in a suit not pending, as the decree of this court, would violate our Constitution by exercising original jurisdiction in a case, not provided for by the Constitution. But with this exception the provisions of chapter 108 of the Code of West Va. are as applicable to this as to any other court.

In framing this statute the Legislature with reference to the persons, who might enter into a binding arbitration, adhered to the common law as herein laid down; as the statute permits the counsel to assent or agree to an arbitration in court, but says nothing of such a right belonging to counsel out of court, either in a suit pending, or before suit brought. The inference to be fairly drawn is, that no such right exists in counsel, except when exercised in court. But neither at common law nor by this statute can an infant bind himself absolutely by an agreement, made out of court, to arbitrate; nor can his counsel so bind him by his consent in court. Britton v. Williams’s devisees, 6 Munf. 453.

In considering this case on its merits especial weight ought to be given to the written evidence, and very little weight to the parol testimony introduced by the appellants. Little or no weight can be given to the evidence of Philip A. Curry, his general character for veracity rendering him unworthy of belief on oath. And no more weight can be attached to the evidence of either Jesse Curry or his wife, even if it is admissible evidence, Their self contradictions, as shown by their answers and depositions, evincing a willingness to swear to anything to support their case without regard to its truth or falsity.

So regarding the evidence, the tacts established satis-' factorily are, that Phillip Axtell on May 23, 1866, conveyed to his daughter Rebecca Curry, then the wife of Jesse Curry, a tract of land in Pennsylvania, where they then lived, which by the laws of that State was her sole and separate property. She sold this farm to Zenas Johnson for $5,144.34, and executed a deed to him therefor on September 14, 1871, her husband not being á party to the deed, though he signed it. He, with the knowledge, consent and approbation of his wife, appropriated all the purchase money, which she handed over to him having received it herself.

For this purchase money'he neither gave, nor promised to give, his wife any consideration whatever. It was on her part a complete and voluntary gift. He invested three thousand two hundred dollars of it in buying a farm in Missouri of Joseph Cole, who on Oct. 5, 1871, conveyed it, with the knowledge and approval of his wife, to him. Not a word was said by him, or by her, either before or after this sale, about the purchase money, or an.y part oí it, belonging to her, or about her having any claim, legal or equitable, to any part of this farm. He continued to occupy and use this farm as his own, till he exchanged it for a farm of John McGinnis’s in West Virginia, which farm was conveyed to him by McGinnis, October 20, 1873.

Pending this negotiation, Jesse Curry’s wife set up no claim, that she had any right to the Missouri farm, or that the deed for the West Virginia land should be made to her, and not to her husband. With full'knowledge of the transaction she permitted the deed to be made to her husband; and it must be regarded, as made with her assent and approval, she then not claiming to have any sort of interest in this farm, or in the Missouri farm, for which it was exchanged. Her husband, Jesse Curry, continued to occupy and use this farm as his own, till he sold to B. F. Cotrill a part of this farm, fifty and one-fourth acres; and the residue of it he continued to occupy and use as his own til] March 31, 1875, when, with the design of defrauding his creditors and especially McGinnis, he disposed of all his personal property to his sons, and conveyed the residue of this farm to one of-his sons, as trustee, for the sole and separate use of his wife, the. pretended consideration for such conveyance on the face of the deed being love and affection for his wife and $2,500.00 in cash paid by her. Not one cent of money was paid, when said deed was made, nor shortly before, nor indeed at any time, the pretense now setup in the answers being, that the consideration was the purchase money of the Pennsylvania farm, which had been given to her husband by her years before, and which he had used, as before stated. After the disposition of his personal and real property, Jesse Curry was insolvent; and executions against him were returned “ no property found.”

Pending the negotiation between McGinnis and Jesse Curry for the exchange of farms, Curry induced McGinnis to borrow for him $250.00, telling him in a letter, that he might secure it by a mortgage on the farm, that McGinnis was about to convey to him. The note for this money was secured by McGinnis signing it as Jesse Curry’s security; but he did not secure it, as he was authorized to do, by a mortgage on the land, he sold Jesse Curry. McGinnis was compelled to pay this $250.00 and interest and the costs of a suit, brought to enforce it out of him. And this suit was brought to set aside the deed made by Jesse Curry to his son, for the sole and separate use of his wife, as fraudulent, and to enforce the payment of this debt out of this land.

The whole transaction discloses a case of gross and outrageous fraud, vainly attempted to be sustained by palpable perjury. The cross-claim, set up by Jesse Curry in his answer, is an after-thought, to excuse his wrongs and defeat McGinnis’s just claim. In reference to this cross-claim it is sufficient to say, that it is not only entirely unsustained by evidence, but is proven to be utterly groundless.

In the statement of the ease, which precedes this opinion, the evidence has been set out at eonsidei’able length; and I shall not review it to show, that it establishes the foregoing facts ; except the fact, that the purchase money of the Pennsylvania farm, which belonged to Mrs. Curry, was collected by her, and handed over to her husband, and by him appropriated with her consent, and approbation ; and that for this purchase money so received he neither gave, nor promised to give, to his wife any consideration whatever; and that this purchase money was a complete* voluntary gift on her part to her husband.

Syllabus 1. If these be facts, and the law authorizes a wife to make such a gift to her husband, it would follow as a matter of course, that such a gift would not be any consideration for a conveyance, made years afterwards for her sole and separate use.

In the case of Hill v. Procter, 10 W. Va. 60, this court decided, that the twenty-second and twenry-third sections of chapter 130 of the Code of West Virginia made no material change in the common law, as to husband and wife giving evidence for or against each other in a cause, in which they are parties, except in an action or suit between husband and wife. This court in that case further said, it might be, that in some cases brought by husband and wife for certain causes of action, the wife, when she is the meritorious cause of action, may be admitted to give evidence; but this court expressly declined to decide, whether in any such case she could give evidence. The question, whether in such a case, as that presented by this record, either the husband or wife could testify, is an important one. And, as I deem it unimportant in this case to decide it, I shall express no opinion on this question. It is unimportant to decide it, as it is apparent from the contradictions in the sworn answers of Curry and his wife, and the statements in their depositions, and from the contradictions of important parts, as stated by them, by other disinter- ■ ested witnesses, as disclosed in the statement of the case, which I have made, that the testimony of Jesse Curry and his wife can not be relied upon, and that the court ought not to attach to their testimony any weight, or if any weight could be given to their evidence in any matter, it could only be in relation to such matters, stated by them, as were rendered probably true by being confirmed by other evidence, or by the circumstances of the case.

The only other witnesses for the appellants on the question, whether the deed, made by Jesse Curry for the use of his wife, was made for a valuable consideration, or whether it was voluntary and fraudulent, were the two sons of Mi's. Rebecca Curry. Philip A. Curry is proved by one of his neighbors to have the general reputation of being “the biggest liar in the settlement,” and that he is unworthy of belief on oath. Another near neighbor deposes, that his reputation for veracity is bad, and such that no dependence could be put upon his word, and that he ought not to be believed on oath; and there is in the case no evidence vindicating his character. The other witness was hot thus directly assailed; but the circumstances, under which his evidence ivas given, as well as his statements, compel us to receive it with caution, if not with suspicion. Pie is a son of Jesse Curry and his •wife Rebecca, the trustee to whom the deed, alleged to be fraudulent, was made; and, I presume, one of the sons of Jesse Curry, to whom he disposed of all his personal property about the same time, that he made this deed, alleged to be fraudulent. This deed of this land and disposition of his personal property rendered Jesse Curry insolvent, so that after that executions, issued against him, were returned “no property found.” And it is to be presumed, that his son was aware, that after this disposition of his property his father’s debts would go unpaid. His statement too, made in his deposition, is not calculated to inspire us with confidence in him; and, before he gave his deposition, he wrote this letter to Joseph Cole:

“ Lindsey’s Mills,

Washington County, Pa.

April 9, 1876.

“ Mr. Cole, Sir: — I wish to know, whether you and Mrs. Cole did not understand, when we bought that farm of you out there, that it was mother’s money we paid for it; that is that the money, that we paid for it, belonged. to mother ? Please let me know immediately, for it is a case of importance. I want to know by the 24th of this month.

“Please oblige yours,

“ EiohMond L. Curry.”

Joseph Cole did not reply to this letter; but on October 2,1876, his deposition was taken, in which he does answer these enquiries by saying : “ I was never asked to make a deed for this land to Rebecca Curry, wife of Jesse Curry; there was nothing ever said to me about making a deed to her. Mr. Curry paid the money to me ; and I made the deed to him, just as usual in trades. He said nothing about this money being his wife’s, or that the deed was to be made to his wife, nor anything of that kind ; at the time of the sale nor since have T ever understood, that the money, paid me for the land, belonged to his wife, nor that the deed was to be made to her. I got this letter from Richmond L. Curry; but never answered it. I supposed the money was Jesse Curry’s.”

Some six months after the deposition of Cole was taken, the deposition of Richmond L. Curry was taken; and it is to be presumed, he knew what Cole had deposed to. When Richmond L. Curry’s deposition was taken, he was not cross-examined, it being taken in Pennsylvania. It will be observed that neither of these sons of Rebecca Curry says, that their father collected the purchase money of this Pennsylvania farm, or that their mother handed over to him this purchase money. On ^Ie contrary both of them assert, that their mother ’ bought the Missouri farm of Joseph Cole. This statement is positively contradicted by Cole, who is entirely disinterested. And he could have no objection to making the deed to their mother, if told, that it was bought with her money, and if he had been asked to make the deed to her. The reasons assigned by Philip A. Curry, why the deed was not made to his mother, are very unsatisfactory, and indeed almost ridiculous.

The receipt on the back of the deed for the Pennsylvania farm shows, that Mrs. Rebecca Curry received herself of Zenas Johnson on September 14, 1871, the whole purchase money of this farm. This was only seventeen days before, Jesse Curry bought of Joseph Cole, and paid for, the Missouri farm.

Philip Curry in his deposition says : “That the deferred payments, on the sale of his mother’s farm in Pennsylvania, were secured by judgment notes drawn in her favor. These payments, as they fell due, were collected by Axtell Throckmorton; and .the money was sent by him to Mrs. Curry in Missouri; and it was with this money, she purchased the farm from Cole.” This can hardly be ; as it is highly improbable, that any deferred payments could have-fallen due, been collected and sent to Missouri in seventeen days from the time, the Pennsylvania land was sold. As the purchase money of the Cole farm was paid by Joseph Cole acting for himself, if any of the purchase money of the Pennsylvania farm was used for that purpose, it must have been a portion of the cash paid to Mrs. Curry seventeen days before. Though the evidence does not show, that Jesse Curry got any of the money, he paid Cole, from his wife ; yet as it was paid so soon after she received this money, it is very probable that he did. And if he did, he must have received it from her promptly after her receipt of it from Zenas Johnson.

Assuming that Jesse Curry got from his wife a portion of this money, the next enquiry is. Did he receive as her agent to invest for her in the farm in Missouri? There is no evidence, that he so received it; on the con-' trary the conduct of both Jesse Curry and his wife show clearly, that he did not so receive it. In less than three weeks afterwads he invested this money in the purchase of a farm in Missouri. He makes the investment for. himself, and not as her agent; he takes the deed to himself; and neither he nor she say one word to the seller to indicate that he was acting as her agent. He continues to reside in Missouri on this farm for two years, he using the farm as his own during all this time, and Mrs. Curry setting up no pretense that she had any interest in it. He then exchanges it with McGinnis for a farm in West Virginia. This exchange was made by correspondence between Jesse Curry and McGinnis; and the letters on behalf of Jesse Curry are written by his son, Philip A. Curry. They are all written in his name; his mother is in no manner mentioned, or alluded to in them. It is true, Philip A. Curry testifies, that his mother made this trade with McGinnis-; but his own letter shows, that this is false. His father made the deed to McGinnis ; and in return McGinnis executed a deed to him. It is true, Phillip A. Curry does say, that it was understood and agreed, that McGinnis should make this deed to his mother, and that the reason it was not so made was, that their attorney, Charles Merrick, told them, that a married •woman could not hold land in West Virginia. This on its face is a very improbable statement; and the evidence of Mr. Merrick is not taken to corroborate it.

McGinnis positively denies this statement. He says in his deposition, “there was nothing said in the trade about making the deed of the land, I traded to him, to his wife, Idebecca Curry. I know nothing about the title being put in her. There was no agreement of any kind to that effect between Curry and me.” This statement of McGinnis we must regard as unquestionably true. We can see no reason, why the deed should have been drawn to Jesse Curry, if the understanding had been> that it should be made to his wife. McGinnis '"could have had no possible objection to making it to her, had he then been asked to do so. It is true, Richmond L. Curry in his deposition says, that “McGinnis had promised to make the deed to her.” But he shows by his own statement, that it was utterly impossible for him to have known of such a promise being made, if any such had in fact been made. The parties had never had any personal interview, till within about a month of the time McGinnis made his deed to Jesse Curry.

Prior to that Jesse Curry and his wife were living in Missouri, while McGinnis was living in West Virginia; and if before that time any such promise was made by McGinnis, it must have been by letter. No such letter is produced, nor is it pretended, that any such promise by letter was ever made. But when Jesse Curry and his wife canie to West Virginia in the fall of 1871, their son, Richmond L. Curry, according to his own deposition, remained in Missouri, anddid not come to West Virginia, till some five mouths after McGinnis had executed his deed to Jesse Curry.

If McGinnis had made a promise to make this deed to Mrs. Curry, as her son, Richmond, says he did, it must have been made in West Virginia, while Richmond L. Curry was in Missouri. His statement therefore, that McGinnis made such a promise to his mother, can.have no effect, except to weaken our confidence in other statements made by him. In making such a statement he was evidently saying as true, that which he did not know. Pie says he did not know, that the deed had been made by McGinnis to his father till April, 1874. If he saw or knew anything of the correspondence between McGinnis and his father, he had no reason to suppose, that the deed would be made otherwise than to his father.

He further says, that the “ McGinnis farm was purchased with his mother’s property, in which his father’ had no interest.” It was exchanged for the Missouri farm; and if he means to assert, that his father had no interest in it, then he is contradicted by Joseph Cole,' of whom it was bought, and who says, that it was his mother who had no interest in it.

After the deed was made by McGinnis to Jesse Curry, he continued to use this farm as his own, Mrs. Curry setting up no claim to it; and after a while Jesse Curry sells fifty and one-fourth acres of it to Cottrill, and then continued to use the balance of the farm, not sold, as his own till March 31, 1875, when he conveyed it to his son, Richmond L. Curry, in trust for the sole and separate use of his wife, Rebecca.

This is the first time, that she seems to have set iqi any claim to this farm. The circumstances, under which she set up this claim, are very suspicious. Her husband had become involved; and, about the same time he made this deed for the separate use of his wife, he also disposed of, to his sons, all his personal property; and then executions issued against him are returned “no property found.”

The deed too on its face is not consistent with the pretension' that this farm was purchased with her money, and always had been regarded as belonging to her. It recites, “ that Jesse Curry for and in consideration of the love and affection, he has for his wife, Rebecca Curry, and for the further consideration of the sum of $2,500.00, to him in hand paid by said Rebecca Curry, the receipt whereof was thereby acknowledged, granted,” &c. This does not look, as if the purpose of this deed was to transfer the legal title to his son, as trustee for his wife, of land, which already belonged to her in equity, and the legal title of which he really held as her trustee only. It purports to be a sale of land, which belonged to him, for a consideration, which he then received, but which was not a full consideration, but which he was willing to accept as the price of this land, because of his love and affection to his wife. In point of fact he did not receive one cent of consideration for this conveyance.

It seems to me, these facts establish clearly, that any moneys received by Jesse Curry from his wife, when she sold her land in Pennsylvania to Johnson, were not received by him as her agent, to be by him invested in the land in Missouri for her use; and that the statement made by Richmond L. Curry, “that he knew this farm was purchased with his mother’s money,” can not be treated as correct, any more than can his statement, “that she bought the farm from Joseph Cole,” or the statement, “that McGinnis had promised to make the deed to her.”

It would have been much more satisfactory, if this witness had stated, how he knew, that the Missouri farm was purchased with his mother’s money. It may be, that according to his view he could properly use such language, though the' money, with which this farm was bought, had been made a gift to his father by his mother. But, whatever may be his views, the evidence and all the circumstances indicate to my mind clearly, that this Missouri farm was bought by Jesse Curry for himself, and not for his wife; that it was so bought with her knowledge and approval; and if bought with money she had let her husband have, that this money was intended by her as a gift to her husband, and, when this purchase of the Missouri land was made, could not be regarded as her money.

I conclude, that this money was given by Mrs. Curry to her husband, as we have seen ; that it was not in his hands to be used by him in making a purchase for her; and it being his money, it must have been a gift to him, unless there was some contract expressed, or implied, that he-was to return it toher at a future day. It is not pretended, that there ivas such an express contract ; and all the circumstances, I have stated, repel the conclusion, that there could have been any such contract implied.

The position of Mrs. Curry is not, that she loaned this money to her husband, or that there was any express, or implied, contract, that it should be returned to her at a future time ; but that she never did lend it to him, and that it never' did belong to him, but was only in his hands as .her agent, and that it was his duty, as it was his expressed desire, to invest it for her use and in her name, first in the Missouri land and afterwards in the land in "West Virginia, and that, by want of proper care and through the fault of Cole and his wife, and McGinnis, the investments were not made for her use and in her name, as they ought to have been, and as was understood between her and her husband.

This pretense on her part being overthrown by the positive testimony of both Cole and McGinnis, as well as by the conduct of Jesse Curry and his wife for a period of three and a half years, she cannot now fall back on a pretense, that Jesse Curry was indebted to her for this money, she had loaned him. Her own answer, as well as the evidence of her sons, shows, that she never loaned her husband any money.

Ssllalms:l>*• If in the purchase of these farms in Missouri and West Virginia Jesse Curry was not hei agent, then she never had any claim to either of them according to the case as stated by them; and the attempt to convey it to her for her sole and separate use must be regarded as fraudulent, null and void. To this conclusion we must come, if it is admitted, that a wife may make a gift to her husband of money belonging to her as her sole and separate estate. That she may make such a gift is the settled law both of West Virginia and Pennsylvania.

If the depositions of Jesse Curry and Rebecca Curry had been admissible as evidence on the question, whether this deed was valid, the conclusion reached would have been the same; as the inconsistencies in these depositions and their contradictions of statements in their answers, some of which have been pointed out, would have rendered their evidence of very little value. There is scarcely a statement in Philip A. Curry’s deposition, which is not contradicted, either by the evidence of reli'able witnesses, or by the written testimony in the cause. An instance of this, not heretofore-pointed out, is his statement, “ that his father and mother executed a deed for the Missouri farm to McGinnis, before they, left Missouri.” The deed on its face shows, that it was not executed, till they came to West Virginia to live.

I shall now review the decisions, especially in Pennsylvania, Virginia and West Virginia, and show, that the conclusions, I have reached, are sustained by the authorities.

It is well settled, that where upon a purchase of property the conveyance of the legal title is taken m the name of one person, while the consideration is given or paid by another, the parties being strangers to each other, a resulting trust immediately arises from the transaction; and the person named in the conveyance will be a trustee for the party, from whom the consideration proceeds. The presumption in such a case being, that the conveyance in the name of another was made as a matter of convenience and arrangement between the parties for collateral purposes. See Bank of the United States v. Carrington, 7 Leigh 566 ; Nixons’ Appeal, 63 Penn. St. 279.

Syllabus 1,- III, It is equally well settled, that such a resulting trust will not arise, where the party, who advanced the purchase money, bears certain close relations to the party, in whose name the deed is taken. If a father advances the purchase money, for instance, and the deed is taken in the name of a wife or child. Shaw et al v. Read, 47 Penn. St. 96. So too, if a grandparent advances the purchase money, and the deed be taken in the name of a grandchild, even though the father be not dead, the presumption would be, that it was intended as a gift, and no remitting trust would arise. This is a legitimate inference from the English cases. See Ebrun v. Duncer, 2 Ch. Ca. 26; Lloyd v. Read, 1 Wins. 607; Kilpin v. Kilpin, Moo. & R. 520. In these and other instances, in which the law presumes, that the person advancing the money intended it as a gift to the person in whose' name the deed is made, this presumption is one of fact and not of law, and may be rebutted by evidence or circumstances.

The presumption, that the advancement of the purchase money was intended as a gift, is not confined to the case, where the person making the advancement was under legal obligations to support the other party. A grandparent is under no such obligation to support a grandchild, especially when its father is living; and yet the more recent English cases, above cited, assume, that a gift would be presumed in such a case, where a deed is taken in the name of the grandchild, and the purchase money advanced by the grandparent.

A wife may dispose of her separate personal estate, or the proceeds of the sale of her separate real estate, in any manner she pleases. She may apply it to the payment of her husband’s debts, or, if she chooses, she may give it to her husband. Bennett et ux. v. Harper’s ex’or, 25 Gratt. 486; and Patton, &c. v. Merchant’s Bank of Charleston, 12 W. Va. 587. It would therefore follow, that if a purchase of real estate is made by a husband in his own name with -money, which his wife had either loaned or given to, him, their could in such a case be no remitting trust to the wife, simply because the purchase would not be made with her money, but with his. This was expressly so decided in Gibson v. Foote, 40 Miss. 788, though in that State there is an express statutory provision: “ If the husband shall purchase property in his own name with the money of the wife, he shall hold the same only as trustee for her use.” The court says: “The object-of this statute was to secure to the wife property purchased by the husband with her money, in his hands, without her consent. It has reference to cases, when such money continues to be the property of the wife; but not to cases, when he is allowed with her consent to have the use of it as his own property.” The soundness of these views of the Mississippi court cannot be questioned.

The real difficulty in most cases is to determine on the evidence, whether the wife has made a gift or loan to her husband, or whether he has held her money only as her agent. When the proof is satisfactory on these ques'tions, there is but little difficulty in applying the law ; but if there be no proof in reference to the capacity, in which the husband holds his wife’s money, whether as donee, borrower, or agent; and land is purchased.with the money; or where the evidence is vague and unsatisfactory, what are the presumptions of. law?

In the particular case before us, especial weight should be given to the decisions of the Courts of Pennsylvania, as it was there the wife sold her land, which was her separate estate, and it was there she secured the purchase money, and probably there she handed it over to her husband. And the law of that State is the law by which we should determine, in what capacity he secured this money, whether as agent for his wife, as borrower, or as donee. In the case of the appeal of Ann MoClinsey, administratrix, 14 Serg. & R. 65; Tilghman, Chief Justice, thus states the law: “ It is a general principle, when a wife permits her husband to receive the profits of her separate estate, and particularly when they live together, and the expenses of housekeeping are ‘paid by him, the presumption is, that it was the intention of the wife to make a gift of the profits to the husband.” This decision was rendered in 1826.

In 1838, in Towers v. Haynes, 3 Whart. 48, Judge Kennedy, in the court below, charged the jury: “ If the husband received any of the rents of the separate property of his wife, or the interest on her separate moneys loaned out, by and with her consent, while they lived together in peace and harmony, and used them without any complaint or objection being made by her for years, the presumption would be, that such rents and interest so received were a gift from her to him; and his estate would not be accountable. But if be had collected or received the principal or any portion of it, though wither knowledge, no presumption of its being a gift would arise from that circumstance. It ought to appear distinctly, that she had assented to his receiving the principal as a gift, otherwise he would be liable for it.”

The Court of Appeals approved expressly so much ot this charge, as refers to the rents and interest, and did not disapprove of so much of it, as refers to the principal, though they did not speak of it particularly. The principle laid down by the court in the case of the appeal of Ann McGlinsey, 14 Serg. & R. 65, approved by the Supreme Court of Pennsylvania, in Nagles v. Ingersoll, 7 Penn. St. 204, decided in 1847.

In 1848 an act was passed by the Legislature of Pennsylvania, declaring “ that all property not personal and mixed, which shall accrue to any married woman by cov-erture, by will, descent, deed of conveyance or otherwise, shall be owned and enjoyed by such married woman as her own separate property.”

syiMms i, n. After the passage of this act the Supreme Court of Pennsylvania decided, that if money, the proceeds of the wife’s land, in which she had a separate estate by the law above quoted, was received by the husband, the mere act of receiving it did not make it the property of the husband; but if it was appropriated to fitting up a house of his as a home, at her request and for her comfort and that of the family, she could not recover it, unless there was an express promise made at the time to repay the same. But a promise to repay it, made subsequently, -would be invalid, there being no consideration to support it. To hold otherwise, the court says, would lead to innumerable and gross frauds on creditors and heirs. See Johnston v. Johnston’s adm’r, 31 Penn. St. 454.

This cause is, in its essential features, similar to the one now before us. The purchase of the Missouri farm was made with Mrs. Curry’s approval for the comfort of herself and the family; and a subsequent promise to pay her therefor would have been void, being sustained by no consideration.

In the case of Graybill v. Mayer et al., 45 Penn. St. 530, it was decided, that the mere possession by the husband of the wife’s money, accruing to her under the act of 1848, is no evidence of his title thereto, as it is easy for him to obtain such possession; and when he obtains it with her consent, it can be at most but slight evidence of a gift, and is repelled if notes are taken for the money at the time, or soon after it was received. The court held further, that in a controversy with creditors the husband’s declaration in favor of his wife 'was not proper evidence; but they declined to reverse the judgment, because declarations of the husband had been given in • evidence showing, that he had borrowed this money, as these declarations were made, when he was entirely out of debt, and long before any controversy with his creditors had arisen. In this case it was contended, that if a wife permits her husband to use her moneys, even on a lease, and thereby gets a false credit, that she ought not to be permitted to claim a judgment confessed on such lease, and thereby withdraw all the husband’s property from his creditors.

The court in deciding the case admit, “that the act. of April 11, 1848, gave to debtors greatly increased facilities for protecting their property against the just claims of creditors, and opened a wide door for the perpetration of fraudsbut against such frauds, the court say, “they have endeavored to erect every possible safeguard, consistent with our duty to give full effect to the action of the Legislature.”

SyiMms 1, iv. I do not doubt, that in Pennsylvania it would be held, that if a wife invests the proceeds of her separate estate, in her husband’s name, in a home for herself and the family, this investment would be a gift to him, and no resulting trust could arise to her, nor could he subsequently, when seriously embarrassed, convey property to her in consideration of this gift, formerly made to him. And such in substance is the case before ns. Such a transaction should be held fraudulent in this State, whore the earnest disposition of the courts, to protect creditors against the fraudulent contrivances of debtors, has been shown in several decisions of this Court.

There is nothing in the assignment of error by the appellants’ counsel, that this land ought not to be sold, because it no where appears, that this is all the land owned by Jesse Curry. This is a mistake. The bill says, “that the plaintiff had learned that said Curry had conveyed all his property out of his hands.” The answers do not assert, that Jesse Curry had any other real estate, which he had not conveyed away; and the court did not err in assuming this to be a fact.

The second assignment of error, that when this debt to McGinnis was contracted, Curry owned no real estate, would be groundless, even if this were a fact; but it is not, as this debt to McGinnis did not arise, when the $250.00 was borrowed, but when it was paid by McGin-nis.

There is no error in the decree of the court, except some formal omissions.

The decree must be corrected by supplying these omissions, and then affirmed; and the appellee, John McGinnis, must recover of the appellants his costs, expended in this Court, and damages according to law.

These corrections in the decree are, that instead of decreeing a sale of the land, in the bill and proceedings mentioned, the decree should be after the sale of the land, in the bill and proceedings mentioned as conveyed to Richmond L. Curry, trustee, or so much thereof, as may be necessary to pay the debt due to John McGinnis, and interest, and the costs of the suit including the costs of the sale. And instead of requiring simply, that before receiving any money under the decree, the commissioner shall give bond in the penalty of seven hundred dollars, conditioned according to law, it should be, that he should be required to give bond with good security, to be approved by the clerk of the circuit court of Ritchie, conditioned according to law.

The other Judges concurred.

DECJREE AeEIBMED.