Opinion
03-16-1906
ZIOBRO v. BIALOS et al.
George S. Silzer, for complainant Theodore Strong, for defendants.
Suit by Katharina Ziobro against Joseph Bialos and others. Heard on bill, answer, replication, and proofs. Bill dismissed.
George S. Silzer, for complainant Theodore Strong, for defendants.
EMERY, V. C. This bill is filed by a married woman against her husband and judgment creditors of the husband, to set aside a conveyence of lands made by the wife to the husband through an intermediary. Some time after the conveyance to the husband, the judgment creditors, whose judgment had been recovered more than seven years previous to the conveyance, levied on the lands as belonging to the husband and for the satisfaction of the judgment. The ground specially set out in the bill for setting aside the conveyance is that the wife, being about to leave the country, intended only to give her husband a power of attorney to sell the lands during her absence, and not to convey the lands to him, and that by mistake, a conveyance to the husband, instead of a power of attorney, was prepared by the attorney for the parties, who are foreigners, unable to write or read, and ignorant of the English language. The papers were prepared by Mr. McElhinney, an attorney, who died in February 1902, about nine months after the execution of the papers (May 21, 1901), and before the levy on the lands, which was made in July 1902. The directions to the attorney for the preparation of the papers, and the attorney's explanations of them, were given through an interpreter, named Sobjak, whowas also the intermediary in the conveyance from the wife to the husband. The attorney signed as the subscribing witness to the two deeds from complainant and her husband, to Sobjak, and from Sobjak and his wife to the husband, and as master in chancery acknowledged both deeds in the proper form. These deeds were duly recorded on June 11, 1901, and about 10 days afterward were mailed to the husband. It also appeared at the hearing that on the same date with the execution of the deeds, a power of attorney was also drawn for the sale of the lands. This power of attorney was signed and executed by the wife alone, giving to her husband power to sell the lands, and was witnessed by both Mr. McElhinney and Sobjak, but not recorded. This power of attorney was produced by the husband at the hearing, and until that time its existence does not appear to have been known to the solicitor who drew the bill.
Sobjak's evidence, with the husband's corroboration, is mainly relied on to make out the mistake of the attorney in having a deed executed instead of a power of attorney, but in my judgment, the evidence of mistake on the attorney's part is not satisfactorily made out. It appearing now that the power of attorney, as well as the deeds, was actually made out and executed, it would not be safe or reasonable, after the death of the attorney, to conclude on the evidence of Sobjak and Ziobro (both of them men ignorant of business and of legal formalities), that the papers executed, both the deeds and power of attorney, were not the papers which were actually intended to be executed by the parties. The power of attorney was probably nugatory or ineffective, because the husband did not join in its execution, and perhaps for other reasons, but this circumstance only makes it more probable that the deeds were intended to be executed as certainly giving to the husband on the record the power to sell the lands by reason of having title. It does not appear that at the time of the execution of the papers, the attention of the attorney was called to the fact that there was an outstanding judgment against the husband. Prom this fact arises the apparent inequity of seizing lands belonging or claimed to belong to the wife, to satisfy the husband's debts. But the wife's equity for relief in such case, if it exists, is not, under the evidence in this case, to be based on a claim that the deeds in their present form were not intended to be executed and that a power of attorney only was intended. The conveyance to the husband of lands to which the wife had title, being for a purely nominal consideration, the wife might be entitled to relief in a case showing that the intention of the deeds was only to effect a sale, and that the husband was to account to the wife for the proceeds of sale, and under the deed held the lands not absolutely or as a gift, but in trust for the wife, and for that purpose.
At the hearing some evidence was taken on both sides, bearing on the question of the real ownership of the lands, and whether they were purchased by the wife's money or that of the husband, and if the evidence on this subject had been such as to show that both sides had fully tried and submitted this issue, I would be inclined to dispose now of the whole case, or claim of complainant arising out of the execution of the deeds, and to allow an amendment to the bill setting up a trust for the wife in the lands, if the deeds were not in fact executed by mistake. But the complainant herself was not examined, being still absent from the country and said to be an invalid, unable to return, nor was the daughter of the parties called. It was from the wife's and daughter's money, derived from her earnings, according to the husband's statement, that the purchase money of the property ($425) was originally derived. Under the circumstances proved here, the husband's credibility is impeached to some extent, and his evidence without corroboration is not sufficient to establish the present equitable ownership of the lands by the wife. The claim of the judgment creditor, in answer to any claim of equitable ownership in the wife, Is that the husband purchased the lands with his own money, coming either from his own labor or that of his daughter, to which he was entitled and that the original conveyance to the wife was for the purpose of protecting the property from his creditors, and the subsequent conveyance to the husband was made to him for his own land and his own benefit. This issue, however, is not raised on the pleadings, nor, in my judgment, should it be finally disposed of on the present evidence, by allowing an amendment for that purpose or treating the pleadings as amended.
I will therefore advise that the bill be dismissed, without prejudice to any bill to be filed by or on behalf of the wife, to establish that under the deeds the husband holds the lands in trust for her benefit, and that they are not liable for the payment of his debts.