Opinion
10-24-1889
SMYTH v. REBER et al.
John W. Wartman, for complainant. E. B. Learning, for defendants.
Bill for relief.
John W. Wartman, for complainant. E. B. Learning, for defendants.
BIRD, V. C. This judgment creditor aims at charging the amount due upon his judgment upon a lot of land, the title to which is in the name of the wife of the debtor. It is alleged that the title was so taken for the purpose of defrauding creditors, and that the money used to make the purchase and to erect the house thereon was to a large extent, if not wholly, the money of the judgment debtor. It is also urged by counsel that, in case any portion of the money belonged to the wife, she has forfeited all claim to it by allowing it to be confused with her husband's. After most careful consideration, I conclude that the complainant has not placed himself within the principles governing this court which entitle him to judgment: (1) Because the title to the lot in question was purchased by the wife more than a year before the debt on which judgment was obtained was contracted. The very decided preponderance of testimony is that the house erected on said lot was almost wholly completed, if not entirely so, before said debt was contracted. (2) By thus taking the title in her name, Mrs. Reber had given warning for more than a year to the complainant of her claim to this property; and by erecting the dwelling thereon she continued to assert her right to dominion as well as to the title. (3) There is no proof of any design upon the part of the wife to engage in an effort with the husband to defraud his future creditors. The only positive proof of any intention whatever is that established by the declaration of the wife and husband to the effect that she had been saving money in small parcels for many years for the purpose of securing to herself a home. This I regard as of very slight consequence, yet, under the circumstances, perhaps admissible when the court is desirous of ascertaining the mind or intention of the party, and, not being objected to, was allowed to stand. According to all of the decisions, if such fraudulent intention be not established, the husband had a right to supply his wife with money, not only to buy this lot, but to build the house thereon, and she, having so done, would be protected in her title. Claflin v. Mess, 30 N. J. Eq. 211; Beeckman v. Montgomery, 14 N. J. Eq. 106; Belford v. Crane, 16 N. J. Eq. 265. These cases distinctly show both sides of the question involved. See, also, Gardner v. Kleinke, ante, 457, (decided October term, 1889.) (4) It was the wife's money, $177, which she used in purchasing the lot. I say it was her money, because a part of it was her own earnings before her marriage, and a part of it was what she had either earned after marriage, or what she had saved out of moneys her husband had given her from the time of their marriage, being many years, to furnish the table with; which balance seems always to have been regarded by them as hers, and which I think, under the circumstances, he could not have recovered against her. (5) In addition to this small amount, being in all not more than $400, she took from a building loan $1,200, all of which was expended in payment for materials and labor applied in the erection of the house. Besides this, she borrowed $500 upon her own individual credit, which also was employed in completing the house. These moneys (the $177. the $1,200, and the $500, and about $225 more, which makes the amount the husband said the wife had when she bought the lot) include the cost of the lot, and the value or cost of the building. The husband purchased the materials for the building for his wife, and so far looked after its construction as to see that the plans by which it was contracted to be built were observed. He was buying lumber at this time, also, for contracts of his own; but he swears that none of the latter went into the house which was being erected by his wife. Peterson v. Mulford, 36 N. J. Law, 481; Johnson v. Vail, 14 N. J. Eq. 423; Stall v. Fulton, 30 N. J. Law, 430; Quidort's Adm'r v. Pergeaux, 18 N. J. Eq. 472; Tresch v. Wirtz, 34 N. J. Eq. 124, on appeal, 36 N. J. Eq. 356; Webster v. Hildreth, 33 Vt. 457; Feller v. Alden, 23 Wis. 301. I will advise that the bill be dismissed, with costs.