Tripner v. Abrahams

The opinion of the court was delivered, by

Thompson, J.

The trial below involved simply a question of property, and although in all such cases much is usually said about frauds and fraudulent transactions, yet until proof gives such characteristics to the matters involved, they proceed as civil issues, attended only by the legal presumptions belonging to such.

The plaintiff below claimed the property in question as belonging, at the time of the sheriff’s sale, to George Tripner, the husband of Hannah C. Tripner, the real defendant, and that it passed to them by the sheriff’s deed. The defendant, Mrs. Tripner, claimed it through a conveyance by her husband in trust for her, and a deed by the trustee directly back to her. The consideration for the title thus acquired, she alleged and attempted to prove, was paid by her by loans and advances of money to her husband, at various times, out of her own separate estate, to an amount sufficiently adequate, if so paid, to be a full consideration.

The consideration, and the source from which it emanated, necessarily involved the question of the bonafides of the transaction, and an inquiry whether the conveyance was or was not collusive and fraudulent as to creditors. This of course allowed a broad latitude of'investigation, and the first question presented here is, whether the court did or did not exceed the utmost latitude allowable in such cases in the admission of testimony.

The first exception is to the offer of proof as to the acts of Tripner, on the trial of a former ejectment for this property in the District Court, wherein it was alleged that he gave a witness for the plaintiff money for the corrupt purpose of affecting his testimony. It was not alleged that there was any evidence of complicity on the part of Mrs. Tripner in this transaction, or that she had any knowledge of it. Was it evidence against her ? We think not. If true, it was the crime of the husband alone, so far as the proof shows anything. But as it was a fraudulent disposition evinced, and an act in the very case trying, we think it was evidence to affect his interest, and his alone. Before the act of one shall affect another, so as to involve him in imputed crime, combination to do the act, or at least a step in it, must be shown. That was not done here, excepting only so far as the relation of husband and wife existed. But it would be a harsh rule to impute to the wife the crimes of the husband, simply as a result of the existing relation. I know of no rule for such a case, other than that regulating other accountable beings; they can •only be involved by a complicity in wrongdoing. It is too remote a test of the truth of her allegation that she paid with her own money for the property in litigation, that her husband attempted to bribe a witness on a former trial. Both facts might have been true; and so far as she is concerned, not being at all implicated in the matter, it proved nothing against her case whatever. In the absence of evidence against her, the testimony could only have effect because of the marriage relation — it had no other foundation to stand upon. We have already intimated our opinion that this wras insufficient. I can conceive of nothing more damaging than such testimony would be in the hands of a skilful advocate before'a jury; and certainly, as it was not an act involved necessarily in the controversy, it was a thing that an honest defendant would never think of being prepared to meet. I say honest, because on this point Mrs. Tripner, unless implicated by proof, must be esteemed innocent. I think, therefore, that the testimony should not have been admitted as affecting her; and restricted to the husband’s case alone, if it could have any effect, it was properly admitted.

I fully concur in the views expressed in this case, that transactions about property between husband and wife are to be narrowly scanned, and that the law looks upon them with a jealous eye; but still their bona Jides is not upon presumptions merely to be placed among impossible things. With the view thus expressed of them, they are to be investigated with great care and caution, but, with this exception, the rules of law and evidence must be mainly the same as in other cases. Equity has often recognised and maintained the possibility of married women standing in the relation of creditors to their husbands; and where it has been made to appear by clear and satisfactory evidence that conveyances have been made on such a consideration, they have been sustained: 10 Ves. 149; 2 Atk. 520; 1 Mad. Ch. C. 525; 2 Johns. Ch. Rep. 539; 1 Par. W. 125; 8 W. & S. 413. We think the generality of the admission of this evidence was erroneous. We see nothing to correct in the second assignment, and dismiss it with this brief notice.

The assignments of error upon the charge will be considered together. And I ought here to remark that it is evident we have but the skeleton of the charge as delivered; perhaps, however, this may enable us the more readily to comprehend its strength by a study of its exposed articulations and muscles. Be that as it may, it is all we have. The exception is to the following language of the learned judge :—

“ The jury are to be satisfied beyond all reasonable doubt of her (Mrs. Tripner’s) ability to pay this large sum of money. The law looks upon the transaction with jealousy, because its benevolence to married women is thus perverted to fraudulent purposes; it requires her to come into court with full proof, such as will relieve reasonable doubts. If you pause — or doubt upon her evidence, your verdict should be given to the plaintiff.”

The complaint is that the rule here' laid down, by which the jury were to be governed in considering the defendant’s evidence, was too rigid and impracticable. In Gamber v. Gamber, 6 Harris 363, the learned judge, Black, C. J., did say something in one part of his opinion nearly like what was said above, viz.: “ When property is claimed by a married woman, 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 acquired it afterwards by gift, bequest, or purchase.” But he immediately added what must be considered as an exposition of what he meant by the language quoted: “ In case of a ’purchase after marriage the burden is upon her to prove distinctly that she paid for it with funds which were not furnished by her husband. Unless rigid proof of her title is always required, no one can calculate the amount of injustice which the Act of 1848 will produce.” The rule laid down here thus qualified, is somewhat short of that administered in this case. In Keeny v. Good, 9 Harris 344, by the same judge: “ Clear and full proof that she paid for it (the property) with her own funds,” seems to have been the rule, and, says the learned judge, “in the absence of such proof, the presumption is a violent one that her husband furnished the means of payment,” citing Gamber v. Gamber, in which no such presumption is declared. In Hoar v. Axe, 10 Id. 381, the same judge declares the rule to be “that a married woman must prove by clear and satisfactory evidence” that she was the owner of the property before marriage “or acquired it in some way which excludes all reasonable suspicion that it is the husband’s.” In Auble v. Mason, 11 Casey 261, we said, “ She must clearly make it appear that the means of acquisition were her own.” So in Reamy v. Walker, 12 Id. 410, “her case requires her to show that after her marriage she received money or other property of her own by will, descent, conveyance, or otherwise.” And in Rhodes v. Gordon, 2 Wright 277, “she was bound to give clear and satisfactory proof that it was paid for out of her own funds.” In substance, the same was held in Robinson v. Wallace, 8 Wright 129. In Hunter’s Appeal, 4 Id. 194, the language is, “a clear case under the Acts of 1848 and 1850, of title in the wife must be shown.”

These citations show that the question of ownership as between husband and wife is to be determined on the sufficiency of proof, as in other cases. Be it, that the proof by the wife must be clear and satisfactory, sufficient to repel all adverse presumptions; and I think this is right; if she fail the failure is in the want of affirmative evidence, and of this she cannot complain. But if the rule be that her case must be made so clear, that there must not be a doubt, and if a doubt exists it must operate affirmatively to induce a verdict against her, is, with every deference for the precision that characterizes the opinions of my learned brother, going too far. “ If you pause or doubt upon her evidence, your verdict should be given to the plaintiff.” This language, following the precedent remark that the law looks with jealousy at the transaction, was calculated to relieve the jury from any further duty than to entertain a doubt, and then determine against the defendant.

In criminal cases, reasonable doubts of whether the evidence proves guilt on the prisoner, acquits him, because the presumption of innocence is one of law and is only to be overcome by full proof. But even this is a different thing from saying “ if you doubt upon the evidence,” a part or the whole, you are relieved from reconciling testimony and justified in an affirmative finding upon the negative of a doubt. In other words, doubt enables a jury to affirm that the presumption of innocence is not overthrown, while doubts, qualified, if the rule asserted below be the true rule, overrules a presumption of honesty and establishes the pretensions of the wife to be fraudulent. None of us would be willing to have a jury addressed in a civil case, involving the ownership of property, merely upon the preponderance of doubts. A creditor who might be as likely as anybody else without many bowels of compassion, would always try the chances of raising a doubt, and thus, while the law would hold the word of promise to the ear of the married woman, would by such a rule be sure to break it to the hope. Without further enlarging, we think there was error in the charge, and thd” case must be retried in accordance with what the cases show the rule to be. We discover nothing else calling for remark in the charge.

It is not very apparent by the paper-books what proceedings were had in regard to the defendant William P. Corlies. Nothing could have been better calculated to confuse what would otherwise have been plain, than the special plea put in for him of a former disclaimer and a demurrer to it. He should simply have disclaimed and repeated the disclaimer as often as he thought himself improperly charged. No replication would be needed to that. The plaintiffs, if they chose, might require the jury to be sworn as to him, and if they did not prove him in possession he would have a verdict and they would have to pay his costs. The only plea in ejectment is “not guilty.” A disclaimer goes to a denial of both title and possession, and saves the plaintiff all trouble if he chooses to take the party disclaiming at his word, but if he does not he may try his chances of proying him in possession : in the event of his doing so, he will be entitled to a verdict. I understand that Oorlies was ordered to put in a proper plea, as I discover no judgment on the demurrer; and this was equivalent to treating his special plea as a nullity. If this were so, I think the court was right in so ordering. We see no error in this part of the case, but for the reasons already given we must reverse the judgment.

Judgment reversed, and venire de novo awarded.

Woodward, C. J., was absent at Nisi Prius when this case was argued. Read, J., did not sit in this case, having been of counsel for the plaintiff.