Opinion
12-17-1894
SING BOW v. SING BOW.
Francis Scott, for complainant. Z. M. Ward, for defendant.
Bill by Wing Sing Bow against Minnie Sing Bow, his wife, for a decree establishing a trust in his favor in certain realty held by defendant. Dismissed.
Francis Scott, for complainant.
Z. M. Ward, for defendant.
GREEN, V. C. The complainant is a native Chinaman. He married the defendant, Minnie Keirstead, in Paterson, in 1878. His business then was that of a laundryman, inthe prosecution of which he was assisted by his wife. Royal L. Wolcott and wife, by deed dated November 25, 1881, for the expressed consideration of $1,000, conveyed a tract of land in Manchester township, Passaic county, to "Minnie Sing Bow, wife of Wing Sing Bow." Defendant paid $25 when the bargain was made and $125 when the deed was delivered, at which time a bond and mortgage on the property, to secure the payment of $850, was given. These last papers were drawn by, and the execution and acknowledgment thereof taken by, Mr. Sidney Parrar, a commissioner of deeds. They are from Minnie Sing Bow and Wing Sing Bow, her husband, to Royal L. Wolcott. The mortgage recites that the mortgaged property is "the same land and premises this day conveyed to said Minnie Sing Bow by said Royal L. Wolcott and wife." Mr. Farrar says he read the whole mortgage through to Wing Sing Bow and his wife, and that he seemed to understand, and that he was surprised he understood so well. This bond has been paid by the defendant, and the mortgage satisfied, and canceled of record. The complainant claims that the money used was his, and asks a decree that he is the owner of the said land; that the deed by which defendant obtained the title be decreed to have been obtained in her name by fraud and deceit; and that she be required to execute such deed as may be requisite to vest the title in him.
1. The parties being husband and wife, a resulting trust does not necessarily arise from the fact, if it is a fact, that the purchase money of the deed, made to the wife, belonged to the husband; the presumption being that a settlement was intended. Read v. Huff, 40 N. J. Eq. 229. The burden of proof to rebut this presumption is on the complainant, and is not established by a preponderance of evidence.
2. The burden of proof is also on the complainant to establish a constructive trust in this case it rests on the charge of fraud, which must be proved. The complainant alleges that the title was put in his wife's name because she told him that he, being an alien, could not hold the title, and quieted his anxiety by telling him his name was in the deed, and showing him his name on the back of the conveyance. She denies having made any such representation, and his evidence is further contradicted by the fact that his name is not on the back of the deed. I was of opinion on the trial, formed from their manner on the stand, that she, of the two, was the truthful witness. Further discredit is thrown on his truthfulness by the fact that he attempted to sustain his case by a witness—Jim Ho—who undoubtedly perjured himself, swearing to former conversations of the wife, when it clearly appeared she had never seen him until he was on the witness stand.
3. The burden of proof is also on the complainant to show that the money used in the purchase was his own. The presumption from the recital in the deed is it was the wife's. Stall v. Fulton, 30 N. J. Law, 430. There is no denial that the money was part of the proceeds of the laundry business, carried on by the husband up to the time they separated, and after that by the wife. As to the latter payments, there can be no valid claim on his part. As to the former, the wife testifies (and I believe her, for reasons before given) that she took a man's place in the laundry, on the promise of her husband to pay her the wages, viz. seven dollars a week; and that she retained her wages with his consent, saved them, and made the payments. There was nothing unfair or unconscionable in such an agreement, and the consideration was ample. By it the husband was relieved from employing help, and he only agreed to give his wife the wages he would otherwise have given such employe. The contract was not enforceable at law (Woodruff v. Clark, 42 N. J. Law, 198), but it has been executed, the wife has performed the service, and has received her wages. Equity will not deprive her of the money, nor of property in which she has invested it Stall v. Fulton, supra; Woodruff v. Clark, supra; Skillman v. Skillman, 13 N. J. Eq. 403, at page 407, 15 N. J. Eq. 479; Peterson v. Mulford, 30 N. J. Law, 481; Quidort's Adm'r v. Pergeaux, 18 N. J. Eq. 472; Slanning v. Style, 3 P. Wms. 337; Savage v. O'Neil, 44 N. Y. 298-302; Raybold v. Ray bold, 20 Pa. St. 308; Merrill v. Smith, 37 Me. 394; Henderson v. Warmack, 27 Miss. 830; Farley v. Blood, 10 Fost. (N. H.) 354. The bill must be dismissed, with costs.