Berry v. Berry

Whiteiioiise, J.

This is a bill in equity, in which a creditor asks that real estate, conveyed to a wife but alleged to have been paid for by her husband, be made available for the payment of a judgment recovered against the husband prior to the purchase of such real estate.

The cause was heard by a single justice sitting in equity and a decree rendered in favor of the plaintiff in accordance with the form suggested by the court in Sampson v. Alexander, 66 Maine, 185. The case now comes to this court by appeal from that decree.

The decision of a single justice upon matters of fact, in an equity hearing, should not be reversed unless it clearly appears that such decision is erroneous; and the burden to show the error falls upon the appellant. Young v. Witham, 75 Maine, 536 ; Paul v. Frye, 80 Maine, 26.

The allegations in the plaintiff’s bill sufficiently meet the substantial requirements of the statute, as well as the principles of equity and rules of procedure established by the recent decisions of this court. Sampson v. Alexander, supra; Call v. Perkins, 65 Maine, 439; Hamlen v. McGillicuddy, 62 Maine, 268; Gray v. Chase, 57 Maine, 558; Winslow v. Gilbreth, 50 Maine, 90.

The proof fully sustains the allegations. The consideration of the conveyance of the farm to the wife with a small amount of personal property, was twelve hundred dollars; and it was not in controversy that the whole amount paid was nine hundred dollars derived from the money received by the husband as a pensioner of the United States, the wife’s note, secured by mortgage being given for the balance of the consideration. But in view of the decision in Friend v. Garcelon, 77 Maine, 25, it is not claimed that the federal statute respecting the exemption of pension money from attachment affords the defendants any protection in this case. It is contended, however, that this sum of nine hundred dollars had been received by the wife from her husband in payment of a prior indebtedness to her, and was her property when invested in the farm. But the only basis of this pretended indebtedness disclosed by the evidence is the alleged interest of the wife in the proceeds from the sale of poultry, butter, cheese and dried apples produced by the joint labor of husband and wife on places rented by the husband prior to the purchase of the farm in question. By the well settled principles of the common law such earnings are the property of the husband, and there is no statute in this State making any part of them the property of the wife. This contention is, therefore, wholly without merit. Sampson v. Alexander, supra, and cases cited.

The appellant not only fails to show that the decision of the presiding justice was clearly wrong, but it affirmatively appears that his decision was clearly right.

Decree below affirmed with costs.

Peters, C. J., Walton, Virgin, Libbey and Haskell, JJ., concurred.