Summary
In Kinsey v. Feller, 64 N.J. Eq. 367, the complainant contended that the husband, in the wife's presence, had claimed the property as his own, although he had transferred it.
Summary of this case from Conway v. RaphelOpinion
04-03-1901
KINSEY et al. v. FELLER et ux.
Charles A. Reed, for complainants. William R. Codington and Samuel S. Swackhamer, for defendants.
Original bill by Edward Kinsey and others against George Feller and wife. Judgment for complainants.
Charles A. Reed, for complainants.
William R. Codington and Samuel S. Swackhamer, for defendants.
PITNEY, V. C. (orally). This case is one not very easy of solution if you go into it in detail, but if you take a common-sense view of it, and apply to it the fundamental principles of justice as administered in a court of equity, it seems to me easy of solution.
Now there are judgment creditors represented here to the amount of about $467, with interest and costs, who recovered judgments against the defendant George Feller. They were debts incurred in the ordinary course of business by Mr. Feller. He was a butcher for about 24 or 25 years in the city of Plainfield, and the debts are those of persons who supplied him with material for use. They had supplied him for a great many years, and he had always been in debt to them more or less,—to a little greater extent than the amount of his trading warranted; that is, they trusted him more than was ordinary,—not much, but some considerable more,—and when he stopped business in 1896 he was so much behind with them. They now seek to reach certain real estate which stands in the name of his wife, and has so stood, part since 1881, and a part since 1885. The ground which they allege is this: that the property was originally purchased mainly with his money. There are three pieces of property. Title to two was taken in his name, and after some three years, and just about the time that he was going into business on his own account, they were transferred to his wife. The third piece was purchased afterwards, in 1885, and the allegation is that it was paid for in part with his own money. But the allegation is further that not only was a part of the purchase money his, but that buildings have beenerected on it to a considerable amount in value, and that he paid the greater part, directly or indirectly, of the cost of those buildings; and whatever may be true with regard to the original title, and where the title stood, yet he has in it an equity in favor of these creditors, which they ought to be able to reach through the machinery of a court of equity.
Now, a little more in detail, the fact is that Feller was a butcher working for wages in the city of Plainfield, and that in 1878 he married Mrs. Feller, who was a domestic living in the city of Plainfield. They both of them had been saving, and had saved some money. He had saved about $700. She had saved about $400. That is what she swore to before Mr. Clark on the order for discovery, and she now tries to increase it by some small items up to nearly $500; but I must say right here that the examination before Mr. Clark, although not in the presence of a judge, was, on its face, most fairly conducted, and no advantage was taken of her; and I think very little of what may be called "traps" were laid in the questions. Mr. Clark wanted to use it, and he was too shrewd a man to introduce any points which would not be fair when the evidence came to be read; and she was kindly treated. She had the opportunity to have counsel, but she did not avail herself of that; and the evidence, after it was written out, was read over to her, and corrected in one respect at her request. Now, I can't find that she had over $400,—could not found any judicial judgment on any greater sum than $400. Of that amount, she swears she laid aside for buying her trousseau a certain sum,—I will call it from $150 to $200,—so that she had $200 left in bank when she got married. She went to living with her husband, keeping house over the butcher shop of the man he worked for. They lived there three years. He got $9 a week, and I suppose the rent was low; and he turned that money over to his wife, according to the fashion of such people, and she saved money out of it; but he earned It Then, the next year, before they had been married a year, they bought the first property for $1,300, and they paid six or seven hundred dollars down. That was the dwelling. There was a dwelling on it And he swore before Mr. Clark that he paid it,—the $700 that he had when he was married. Before Mr. Clark, I don't think the wife pretended that she paid it At any rate, there was no thought at that time that that property was hers, rather than his. (After looking at testimony taken before Mr. Clark) I don't know that she was asked about it. At any rate, I think she hardly ventured to swear that she paid that six or seven hundred dollars. She says she got $185 more from the old country; and I asked her on the stand how she made up the $600 or $700 that she said she paid, and she was unable to do it to my satisfaction.
I am satisfied that she did not pay that $600 or $700. If she paid any, she paid only a part of it Her husband paid a part of it and what is to be remarked is the fact that the title was taken in his name. Now, it is said that was through inadvertence. Now, that is not very probable. I do not say it is improbable. Mrs. Feller, a smart woman, who had been working for wages, was not a child, and it is common knowledge that people of this kind have a desire to take title in their own names; and, if she had paid the money herself, the great probability is— I don't say the certainty, but the great probability is the title would have been taken in her name. It was not. It stood in her husband's name.
Now, the next property was bought in 1880, through Mr. Vermeule,—April 1, 1880. That is nearly two years after the marriage; and that cost $325, and of that amount $125 was paid down. The wife says she paid it. A mortgage was taken for $200. Now, they build a house on that $325 lot that cost eleven or twelve hundred dollars. I don't know which house was built first, but one cost $1,100, and the other $1,200, because I looked through her evidence before Mr. Clark, and that is what she says. Now, who paid that money? Why, she says she got $700 from the other side, in addition to the $185 she had before. And she may possibly have built that house with that money. She says she made money. Now, let us see how she made it. In the first place, her husband gave her $15 a month to live on. Next, he bought cows,—fresh cows,—and paid for them. She would milk them, sell the milk, and then turn the cows over to him again for beef at the end of the season; and she says that she made money out of that milk. Then she says that she kept some chickens. Well, the proof is clear that people brought chickens in coops on his little place, and she had the use of them, with others that she had. She raised some chickens. Now, she raised seven children in that time; and I can't believe that that woman could support the family, raise her children, clothe them, and run the house, on $15 a month. Her husband testified before Mr. Clark he gave her $5 a week. That would be about $22 a month. But on $15 a month I don't see how she could save anything, after buying food, as she said she did, for the chickens, and food for the cows, and hay for the cows, and pay for, their pasture, and fat them after they had been milked all summer, and turn them back to her husband and get as much for them as when he bought them. I think I know enough as a juryman, and how people live, to know that the result she swears to could not follow the means that she gives for that. Because she had her husband to feed, and her children, unless her husband did that. Now, he did furnish the meat for the house. That is admitted.
Now, he was engaged in business when these houses were turned over and put in her name. They were first conveyed to her husband, and put in her name about the time he went into business; and he was doing business partly on credit from the start. He was there in possession of these premises, apparently the owner; and one question in this case is whether or not every man who has dealings with a man like that — Take these two dealers here,—whether they were bound to run to the clerk's office and see if the title was in the wife's name or in his, or whether, if he was actually in possession, occupying them as an owner would, they were not justified in believing that he was the owner. Now Mr. Kinsey swears that he went there and asked for his pay in the presence of Mrs. Feller, and that Feller, in her presence, said: "I have got all this property here. You are perfectly safe." And she made no protest. And Mr. Kinsey says—and I believe him—that he sold goods on the strength of that apparent possession. Now. possession is prima facie ownership. A man does not have to run to the records to see where the title stands if a man is in possession. That Feller received credit on the strength of that ownership, there can be no doubt whatever. Another creditor swore that he went there, and the lady spoke of it as "we": "We will pay you." "You will be sure to be paid." "We will pay you." And all through the evidence of the wife it is "we,"—what was his was hers, and what was hers was his.
There was another house built, at a cost of $1,200; and she attempts to show that she not only paid the $1,100 put in one house, but the $1,200 put in the other. Well, she says she was saving money from her chickens and from the milk, and she was saving from the rents; but rents of property that her husband had paid for, in part, at least. All the while he was doing business, and buying meat on credit. Then comes the other purchase of $800. That was in 1885. Now, where could she save the money? Just think of it. Save the money to pay for the mortgage on the $1,300 property, only $600 or $700 having been paid at the time of the purchase. The mortgage of $200 on the $325 purchase had to be paid. Then the house costing $1,100, and another house costing $1,200, had to be paid, making over $3,000, besides the first payments that were invested in that property. Is it possible to believe that that wife did that,—raised her children, seven in number, and supported the family, fed them, and clothed them, and all that sort of thing, and put that $3,000 in buildings and mortgages on that property? Why, there are plenty of declarations of the husband that he was putting money Into it all the time, and I cannot shut my eyes to the fact that that husband was putting money into that property that belonged to his creditors; that he was getting credit on the strength of being the owner, and putting money into this property, directly and indirectly taking it out of his business, instead of paying his debts. Now, is that just? Now, there comes in the common sense and common justice of the situation. Granting that the title was in his wife, then he must not spend money on it. He must be just before be is generous; must pay his creditors every dollar before spending any money on his wife's property. That is the law of the land, and that is common justice, and that is common sense.
Now, that Mrs. Feller spent any such sum as that on that property, it is Impossible for me to believe. Now, I have taken her statement, and I have given her credit for everything she put into this property, except the rents of it, etc., and I cannot make more than $2,000; and the cost of the property—I have figured it up carefully—is $7,875. I will give the items: The first purchase, '$1,300; the next purchase, $325; the next purchase, $800. That makes $2,425. One house, $1,100; another house, $1,200; another, $3,000 and upwards, she says (I don't know how much); an assessment, $150; making altogether $7,875. Then the mortgage now on it is $2,700, leaving $5,175. Now, I will take what she has put in: I put in $400 that she had when she was married, $200 she got from Germany, and $700 more; making $1,300; and $700 she has borrowed outside, making $2,000 against $5,175. In other words, my judgment is, upon the whole of the evidence, that about one-half of the property, on her own show,—not over one-half of it,—was her contribution. The other one-half is her husband's and belongs to his creditors, in my judgment. Now, if the judgments were large,—if there were four or five or six thousand dollars that had to be satisfied here,—a very different question would arise. Then the inquiry would be how much of that really belongs to the husband, and how much to the wife, in equity. But that is not the situation. Here there is only five or six hundred dollars to be satisfied, and it can be satisfied without treading on the wife's right one hair's breadth. She has got all she has put in, and a great deal more, after paying that Now, it is said that this was her property all the while, and that her husband had a right to give it to her. He had no right to give it to her while he was in debt and engaged in business, and in debt from year to year. I have held, upon a careful examination of the authorities, and you will find the case reported— I don't know what the court of appeals will do with it,—the case of Adoue v. Spencer, 46 Atl. 543. I held that where there was a current account, and where payments were being made and debts accruing, the debt was never, in equity, paid; it was a continuing debt; that the doctrine of applying the first payment on the oldest part of the debt did not apply in the sense that it does in ordinary cases.
And that is the common sense here. This man was indebted to these gentlemen all the while. Their accounts show It,—particularly the ice company account. He never was out of debt to that company from 1802 on. Now, do you say that never before 1892 this man put any money into this property? I think that cannot be alleged. And the other gentlemen went further back than that,— 15 years back. But there is Just one other thing I want to mention. It is not a case where, if this man had owned all four of these houses, and had conveyed one of them to his wile,—a proper house, and fit for her to live in,—and had kept the rest for himself, the court would have disturbed it. That is not the case. It is a case where all the property a man has is in his wife's name. It is where he has put everything he has in her name, and goes right on in business as if he owned it. It stood there all these years, to be sure, but it cannot be upheld as being what is called a reasonable settlement for a man in business to make on his wife. I think, therefore, that the complainants are entitled to relief, and I am very glad to feel that it will not hurt the wife a bit.
The judgments in this case are all admitted. I cannot let the $70 in unless there is a judgment.