Myers v. Leas

Mr. Justice Sterrett

delivered the opinion of the court, October 4th 1882.

Both parties to this contention claim -under Peter Myerswho in 1858 made a deed of the land in controversy to his son-in-law John E. Leas, as whose property the same was after-wards sold by the sheriff and purchased by the plaintiff. The deed from Myers to Leas, in connection with the judgments against the latter, executions thereon, sheriff’s sale, and deed to the plaintiff, made a prima facie case, on which, in the absence of rebutting evidence sufficient to establish a better title in Mrs. Leas, the verdict should have been in his favor.

The defence interposed by Mrs. Leas was, that notwithstanding the deed was in the name of her husband, she was in fact the owner of the land; that it was a gift to her from her father, representing her portion of his estate] and intended for her exclusive benefit; that no part of the consideration mentioned in the deed was either paid or intended to be paid by her husband, and that the plaintiff bought the land with notice that she was the equitable owner thereof, and that her husband had no interest therein to which the lien of the judgment or execution on which it was sold could attach. In support of this defence the testimony complained of in the first specification of error was rightly received and submitted to the jury. It tended to prove facts which constituted the basis of an equitable title in her, as was therefore clearly competent.

In view of the testimony thus properly before the jury there was no error in affirming the points referred to in the fourth, fifth, and sixth assignments, nor in charging the jury as complained of in the seventh and eighth specifications of error. The case was fairly submitted to the jury, with well-guarded instructions as to what was necessary to justify a verdict in favor of the plaintiff in error. After referring to the testimony and the nature of the defence set up by Mrs. Leas, the learned judge said: “ The presumptions are all against her claim of title, living with her husband as these defendants were living. .The presumption of law is that the property belongs to the husband and not to the wife. The evidence to establish in her a separate estate in this land, by gift or advancement from her father, must be clear and satisfactory, sufficient to repel all adverse presumptions. It need not be so clear that there can be no doubt' about it, which simply means that it need not amount to absolute demonstration. It is not enough that she was one of the five children of Peter Myers and that he was possessed of sufficient estate to provide each of them with a farm; but the the evidence must be clear, full and satisfactory, that this land was actually a gift or advancement from him to her.” If the jury found from the evidence, as they doubtless did, that Mrs. Leas and not her husband was the actual owner of the land, the plaintiff took nothing by the sale. The verdict in her favor necessarily implies that the facts, substantially as claimed by by her, were found by the jury. Upon such a state of facts, no chancellor would hesitate to decree in her favor, as against her husband or any one claiming under him with notice of her equitable title.

The second and third assignments are not sustained. The defendant’s testimony, tending to establish an equitable title in Mrs. Leas, was clearly for the jury, and it would have been error to have excluded it from their consideration by affirming the points covered by these assignments.

The ninth assignment of error is not sustained.

Judgment affirmed.