Judges： Agnew
Filed Date： 11/8/1866
Status： Precedential
Modified Date： 10/19/2024
The opinion of the court was delivered, by
The entire tract of 140 acres of land having been levied and sold and the ejectment brought against Peter Curry alone, it is very clear he himself could set up no defence against the purchaser at sheriff’s sale or his vendee. But if at the time of levy and sale his wife, and not he, was the owner of the premises, her title might be set up by him to prevent her ouster. Indeed, since the Act of 22d April 1850, even the curtesy of the husband in her estate is exempted from levy and sale during the wife’s lifetime. But there is no presumption in favor of her title. The husband being the head of the family and the protector and( supporter of the wife, his possession is presumed to be in his own right until the contrary is made to appear. The rule established in many decisions, some of them quite recent, is, that in a contest with the husband’s creditors the proof of the wife’s interest must be shown by clear and unequivocal evidence. In the attitude of this case the burthen was cast most strongly upon the wife.
The deed for the 40 acres, made after the bringing of this suit and preceded by no equity, was rightly rejected. Peter Curry cannot protect himself in possession against the sheriff’s deed by, an after-acquired title in his wife. This leaves in controversy only the 100 acres conveyed by Kelly to Mrs. Curry in 1854. The evidence is clear that Peter Curry had previously purchased the same land of Kelly and paid $600 upon it. When Kelly and Curry rescinded the agreement, Kelly on the same day or the next conveyed the land to Mrs. Curry for the exact balance unpaid by Curry on the agreement, without restoring any part of the $600. The conveyance does not purport to be a gift but was made for the sum of $300, for which he tools her note. Mrs. Curry made upon this note two small payments, one of which was by means of timber taken from the premises. Kelly testifies that he afterwards surrendered her note and took her verbal promise to pay the balance. It is very plain that this was a purchase by Mrs. Curry and not a gift to her; if, indeed, it was not a gross fraud to cover the property from Curry’s creditors. But, conceding it to be a fair purchase, it became the property of Peter Curry, the husband, without clear and satisfactory evidence of the possession of a separate estate of her own- on part of Mrs Curry, which was applied to the payment of the consideration of the deed. Her credit alone, without a separate estate, is not sufficient to invest her with title. The presumption is, that the consideration was paid or to be paid out of the estate of her husband. This has been fully decided in the recent case of Baringer v. Stiver, 13 Wright 129. There is nothing in the evidence to
Eor the same reasons, the offers of evidence by the defendant were rightly rejected and his points refused. Kelly’s deed to Mrs. Curry was absolute and transferred his whole estate without a lien reserved or taken for the purchase-money. As he had no remedy upon his title to recover the purchase-money, so Mrs. Curry could not stand in his shoes to enforce a lien against her husband. The deed vested this title, as we have seen, in the husband and not in the wife, and the release of the note of the wife did not operate to divest the estate already vested in Curry, or to convert it into a gift to his wife. As an instrument her note was invalid, and, at most, it was but her credit, which without a separate estate devoted to its payment vested no title to the land in her.
Finding no error in the record, the judgment is affirmed.