. A railroad company may be liable to if it obstructs the street by unreasonably and improperly leaving its cars standing ,thereon. It cannot abuse th!'l right given it, to an,other's damages. Wl1at'ever l:\se is reasonf!;ble and proper, it may 'enjoy without liability. When it 'golils Qeyond it liable, as any other wrong-doer. What use is reasonable and proper will, of course, vary with the circumstances, aI.1d be absolutely determined in ignorance of the surroundings. A: for injuries, they being changing and temporary in theirl1ature, anISes whenever and as often as they occurj and for each the'wrong a new cause of action arises. 10 !(an" 2g':Kan., 2() Kan. 702, S'!J,pra. Applying these prinCiples to the case at bar, demurrer to the second count in the answer must be overruled. Such count clearly states a full defense to any action on account of the main track. It was placed in 1871, and· whatever right of action J:nay have been for the construction ofsuj)h trapk, and t}le rtinning of trains thereon in an ordinary and proper manner, arose at that time, and is long since WQ. improper qlle of such track is alleged. It is proper to run ,trlJ,iQRIDItJM>nigptas !tS the daytime, to run heavy freight trains, to ring lW-P. whistleel' and no unreasopable or improper conduct ill is sho:w:n. , ,to the side track, the occupation having commenced in ·. the of liIXliiatiPJls (ioes not bar. A receiver, duly appoinmd c;ll;ulrge of the prpperty, and business of a corporation, is a proper party, in whose name suits by or against the corporation may be conducted. It be doubtful whether the plaintiff is intendt.Q lcou,Jlltl¥>]Ply UPPJlt}le oJ,'iginal inva,siqJl of her rights by the occupa.tiop.p Ul82, tp'l:l J:llanner of \lae allege<l being simply matter of or relies also upon a Wrongful and improper If the latte.!;, it that the complaint should be amendl'ld so to clearly pfiltween the two causes of actioljl, and state each separately. Ida not stop to determine thatque$tion. . to thethi,rd count in the answer will be sustained.
LYON and others'll.
(Of!rC'Uit Oo'!trt, R. D. Virginia. Februllory, 1887.)
FOR BENEFIT OF OR.EDITORS-USE OF WIFE'S MONEY-WIFE AS
, If a,q.1wP/lnd. not acting in a fiduciary character as to the wife's, income. of w1J.i(lhshe personally has entire control. collects such income habitually with cpnsent and acquiescence, and mixes those collections with his own ,m.oneys,ll-nd does not, at or before the time of his collecting them, give proot bYh¥! own declarations or MtS that he receive$ them as hers for, her separate use, and holds them as a debt due from himself to her, and she permits this appropriation of her income by him to go on for It protracted period, then, and in such a condition of affairs, she cannot afterwa.rds,on the occurrence
ql,lar.rel,or ins. alve.ncy; or. ,other event, a. perm.iss.Ion. so long indulged, and require him or pi!! assignees to make her acredltor of her husband for the amount so collected,! ,'. '
WIFl!: 1N A.sSIGl'iMENT. '
Conversely, ,a husband may prefer his wile in an assignment for income of hers collected by him under an agreement with her to account to her for it, a separate account of said 'income being kept on his books under his name as trustee! 1 " .
(Bgllabua by tM Oourt.)
In the case at bar. where the husband had preferred his wife both fot' rents collected by himwithout any' clear understanding to hold them for her, and for rents collected by him with' suCh an understanding, and also for indorsements made byber:for. him. and secured by trust dEled onber separate estate, tbe court sustained the assignment as security for tbe last two preferences, but se,t it aside in so far as it attempted to secure tbetlrst. 1
In Equity. Robert Stt7a; W. T. EllyBM, and Coke & Pickrell,t"or complainants. McGuire eft EUett and JolvnS.: WiB8, for defendants.
HUGHltB, J.' The bill in this case is brought to set aside a preference given by Christian Zimmer,the defendant, to his wife, Rosina Zimmet, also a defendaiit,as set forth 'in 'the deed of assignment execUted by the husband on the, of April, 1886,and duly recorded. The bill charges,among other things; fraud in the executibn'of the deedjthat the purpose was to hinder, delay, and defraudcreditorsj and: that the arnount Of the' pretended debt secured to the wife is unreal and fraudulent. The of the case 'are' follows: Christian. Zimmer was a grocer in the city of Richmond. Hehad conducted btisinessas such ,for more than 10 years. He finally failed, owing debts to the seventeen or eighteen thousand dollars',"one'of which he claiD;ls to his Wife, Rosina Zimmer, to the amount of $8,880, arisingfroni' rents collected by him from herseparate .estate, and to the furtherarn'ount of $3, 000 or more for which she is liable as: indorser on' his commercial paper. The claim of Lyon Bros. is for $1,555 on open account and promissory notes. The principal contest in the litigation, probably the only contest, is on the bona fides of the debt of $8,880. The marriage of Christian and.,Rosina Zimmer took place in 1875. Mrs. Zimmer was then Mrs. Lipps; the widow of a former husband, .left pis .wife twp valuable pieces Jacob Lipps.; . By his will, Lipps of real estate iIi the city of Richmond, one of them for life, the other in fee. gross ,rent of about $1,200. Before the subsequent marriage of Rosina Lipps, a deed of marriage set'tlement, executed by Zi.mmer and herself, to a tnistee :pamed Wahman, forJjel; Separate use, free .from , his liabilities and control, the title, of the two pieces of real estate which have been men.This deed conveyed to the trustee only the C01pU8 of the. prop-
,.1See note at end of case.
'LYON' V.' 'ZIMMER.·
erly',but provided that. the trQstee should" petmit the said Rosina to use,occupy; enjoy, imd possess the said real estate, and the reQts, issues, and profitff thereof, to take for her sole and separate use, benefit, alld enjoyment; free from the marital rights and cont1;ol of the. said Zimmer, and from any liability for his present and future debts and contracts." It vested the property in the trustee, but reserved to the wife the right of collecting the income,' and using it at her own discretion. In the course of a year or more after the marriage, the trustee named in the deed of marriage settlement ceased to be a resident of Virginia, and, under a'provision of the laws of this commonwealth, Christian Zimmer himself was substituted as with powers as defined by the settlement., It appears that, from the beginning of his trust, throughout, Zimmer collected, either himself or by his agents, the annual, or rather monthly, rents accruing from the two pieces of real estate constituting his separate: property. One witness testifies that, in the first years after the ma.rriage,. the understanding between Zimmer and his wife was that the rents 80,o.ol1ootOO were to be put in bank for Mrs. Zimmer. The evidence shows that no moneys were ever thu,s deposited., and Mrs. Zimmer in: her answer and cros&-bill, makes averments which disprove such an understanding., , . Asberore stated, tlie collection of his wife's, rents by Zimmer began in 1875. A witness who came into Zimmer's employment in 1880,and began to keep his books in July of that year, testifies that after that time certain family jars occurred, once, twice, or oftener, between Mr. and Mrs. Zimmer, during which she demanded her rents, insisting upon gross rents; that Zimmer refused to make good the gross amounts, but expressed his willingness to Mcount for the net rents; that on this basis the witness, late in 1880 or early in 1881, made up the account ohents which appears on the books or Zimmer under the head of "Rosina Zimmer, for Rents, C. pimmer, Trustee;" that Mrs. Zimmer became reconciled to the account of net rents, and, after becoming paci,ned, said to her husband, "Let it remain in your hands till I call for it." This witness testified ,in another part of his deposition, that Mr. Zimmer promised to pay to his wife thereafter the rents as they should become due. He testifies that he heard Zimmer promise his wife, on several occaElions, that whenever she wanted the money p,he could get it. From January, 1885, the entries of rents in the books of Zimmer ceased. They werecolleeted by a real-estate firm in Richmond, and credited by notes made by Zimmer, indorsed by his wife, and 'discounted by the firm on the faith of the rents. " The cross-bill of Mrs. Zimmer alleges, among. other things, that during thetime:Wahmanwas trustee the rents of her real estate were receivedby ChriatianZimmer with her knowledge .and consent; that she , had entire confidence in her husband; that fora long time she resided with him at his store, and assisted him in his business; that she knew then, and supposed always, up to a very rece,nt period, almost up to 'the; date of his failtlre, on the ninth Aptil, 1-&86, that his
was prosperous,ai:ld 'he entirely solvent; that she allowed him to receive the money and use it in 'hisbul3iness because she thought the business and himself solvent, and that so putting them, was the liestand safest investment she could make; that it is,true she let him put the rents from her realty into his business, but:itwas in the belief'on her part (and she believes on his also) that said business was prosperous, and the money safe; that Zimmer alwaysproillisedto pay her whenever she wanted it; that she files a statement from Zimmer's books showing the amounts receivedon abcount of said ren1is; And paid out for expenses, showing 8. net balancedU8,880A3eollecte<i by him; that'she indorsed his notes to the amount of $3,170, and gaVE! mortgage on part ofher real estate to secure a part of the sum, that will fall upon her to be made good unless this deed bfassighmeht hythe court. In her answer to the originalb'ill in this dause,' ,Zhpmer makes substantially the same espeCially that she aNowe'dher husband to receive the money .from the rents, ahd use it in' hill b1iMness, because she thought the business and himself solvent, andtl:littisoputting it there was the best and safest inves'tmetit she couldmakej a.nd that Zin'lmer 'had ahtays told her she could get it,and all of it,when'evershe wanted it. , Except the testimoby Of'll; ,MT!l.' &ivers, which is contradicted by the answer and the cross-bill, there is no evidence in the cause showing that Zimmer's collections ofrents were' treated as a delit fromhilll to his wife at adl'lte earlier thn late in 1880 'or early in 1881, up to which time the net renlis collected had nmregated about $4,500. At that time the book-keeper, Walker, undertt10k to construct an account reaching as far back as 1875, from such dciJxi as 'could be collected from old books. This account he stated in a. book commenced and kept by himself, and exhibited in e\'idence. This 8:coount is headed" Rosina Zimm.er, for Rents," to which isadded'lil.'l ink, "C. Zimmer, Trustee." The entries in this book are not, in many :cases, of the dates when the transactions actually occurred, but '8.t'einse'rted as of other dateS; that is to say; dates at which the rents arellSs'umed to become due. In other words, the book wasoot posted from original entries. It may be added that and, RdsiI1a Zimmer have had no 'children; and that, as the income of Mrs. iZhniner went into the business of her husband in the manner which has heen described, so all the expenses of her support for the 11 years of their joint life, from 1875 to 1886, were by him. Ashefore stated, the principitl subject of contention in this cause, if not the only one, is the questioIiwhether, as to the whole or ahy part of the sum of 88,880.43 which has been mentioned, C. Zimmer was a debtor to his wife in'st1Oh mnnneras to make it competent for him to »'refer this debt when he became insolvent, ina deed of assignment I to tb'eprejudice of his >:rnercantilecredit6rs. It is 'certainly a well-settled principle of law that, if the hMband coI!ects the wife's estate,and she 'does not consent to it expresSly, and her consent cannot be presumed from hercouduct, the husband or his estate is liable for the .whole amount whioh shall have been so dollec'ted.2 Bright, Husb.&W. 259,
LYON 'IJ. ZIMMER.
2G1. Ergo, she may bec(:llne her husband's creditor, and he may prefer this debt in her favW, if the preference be given under cireumstan()efil free from fraud. Eq. Jur. § 1373;'Ohri8tian v. Keen, 80 Va. 369. The point of inquiry, therefore, is, the collections in this case ,all having been of income over which the husband had no power under the deed,and which he could not have collected arid used except by perand authority of his wife, what was the status of them6neys thus collected after coming into and rem.ainllig, some of it as much as 10 years, irithe custody of the husband? The authOrities on this subject 'are in apparent conflict. I Will notice most of those which are applicable, and have been relied on in argument. I, canIlob set out fact on which the decision in each cited,case was based, tiut', Will give oilly'such facts as illustrate the principle Of each " decision. ' ," ,in Naliffnal1Jank v. Ki1rtfJle, 76 Ind. 203, Kimble had, on the teenthApril, 18'77, conveyed indirectly to his wife all his real estate, being 45'0 of land of his own, by deed 'Which stated as its eonsid-' eration fa 'debt of $11,000, which was an aggregate made up Of sums various times ilitiee -1841 be had rebeived from the !epnrate estate6f his wife. The S'I1tl:HI re'ceNed aggregated not more than $7,000. The deed was made pending two suits against Kifubleon wbich judgmehtswere recovered on tbe twenty-eighth April, 1877, to the amount of Executiol1s'on these judgments were in due courSe returned unsatis'fioo. Khhbre had bdhght thetraet Of land in 1855 for $4','800, and it haa increased in value. Kimble had used his wife's mllney in his busibefls, and ,had mixed it with his own. He had always considered tbemoney his after he got it, but had considered that he ow:ed it to his wife. Some ofit was received on express promise to hold it for and repay it to his wife. His family had li-v'ed on the 450-aere tract since its purehase in 1855. It was the family homestead. It does not seem that Kimble was a nlerchant, or that he owed other debts than those sued upon of any cOhsequence. These judgnient debts were due for indorsements. 01'1 ;abill to set aside the deed as made to hinder, defraud, etc., the court sustained the deed and dismissed the bill. In Gotltefliaur's Estate, 23Pa. St. 460, Gochenaur hadmariied Barbara. Newswanger, and her husband and her brother had qualified OIl her father's ;estate, from ",hi\:jh she derived in all $5,i36. After her husband's death, the question arose whether the moneys making up this aggregate were a debt of the estate to the Widow, or a part of the estate to bedistribut'ed among distributees.... There were no creditors other than who now made claim as creditor for the first time since the receipt of the mohey by her husband. Witnesses testified that, at the time Gochenaur recei'v'ed nioneysof his Wife in several instances, he said it was hers, and should be hers, but that he would u.se it to pay those of his debts Which bore interest. The commissioner before whom Gochellaur's estate Was settled allowed the wife's cillimon the principle'that a husband's reduction into possession of the wife's estate was only 'pH:rlmjatieevi.dence of a Cdhversion, hut that theprestimption
of intent,;mi@.t be repelled tq, the contrary, the evidence in thatcaseijot being but declarations made at time of receiving the mOIley.. The court;:put the case on a ground,holding)hat the money came to the husband in his cPl'racter as administrator, :8Jld not as husband. It allowed the wife's claim on the ground of the fidl,lciary character in which the money was received, and of the declarations of the husband at the time of receiving parts .ofit. The cited Kent's doctrine (2 Comm. 138) that a wife's property mustcpme under the actual control and pass6Ssio;q. of the husband, qua husband, or the wife will take as survivor, instead ,of personal representative of husband. In$yracu8e Plow Ch. v. Wing, 85 N. Y. 424,. Wing received from his wife's ,guard,ian, in May, 1844, ;(before the passage of the New York married woman's act of 1848,) $1,366 of her own estate. He gave a. mortgage 33 Years a(terwards (1877} to her for tha,t mOlley and its interest, $4,611 in all, on real estate, and afterwards put on the same land another mortgage for $2,200. The farm had been purchased with the, $1,366 received from the wife's patrimony.. From time to time after-, wards Wing had spoken to his wife of this money as belonging to her j and, before he incurred liabilities, hall promised her that he would execute, to hera paper to show for the :money, but had never done so until 1878, wheIJ. .he gave the mortgage which has been mentioned in her faVOr. .He.had afterwards received other moneys of his wife, to the amount of $1,400, for which he; gave her a second mortgage which was juniorto that fqr $2,200 in favor of another creditor. The two mortgages attacked as 'designed to, hinder, delay, and creditors. bel()w sustained the mortgages. S,o did the court above sustain, it, saying that the case resolved itself into questions of fact, -qpon wbichthe findings of the court below were in favor of the wife. RCYfJet'v. Wren, 6 Leigh, 38, was a case of the distribution of the husband's estate, in which the question was not between creditors and the wife in the husband's life-time. The .wife's claim was allowed because she had frequently. demanded, and. h.ad never conceded any part of the rents and her, and collected by her husband; one of the judges saying that the case was the more clear because there were no creditors to lose by the decision. Darkin v. Darlcin, 17 Beav. 578, was a case of the distribution of deceased, husband's estate. There was no question between wife and husband's credito,s. It was held that, as the husband's books showed that. he, two promissory notes, a share of gas stock, and government consols, belollging to his wife's for her use, the estate was liable to her.. The savings of other portions of the wife's separate estate had been invested from time to time in the names. of husband and wife. years after thema.rpage t]p.e husband had purchased with these a piece of ground, aJ;ld builta, house upon it, taking the deed in hill own name, but executing a: will devising tpe prc;>perty to her, and Ul/lde her fJxecutrix. Six Yl;lars afterwards; the husband, mad,e auothel' will, .devisi,ng all, property generally to. a brother, and him
'ecutor. Altho1Jgh stock had been transferred to the husband, and tl}e promissory notes renewed and made payable to him, yet his account-b()oks recognized them as belonging to the wife. The master of rolls held as to the land that, as it was bought with wife's separate 'estate, and it had been agreed between the two that he should have it ',for his life and she afterwards, a trust had arisen for the wife, and the land 'did' not pass under the second will. As to the notes and 'gas stock, the master of rolls said that the evidence showed a case which would 'have been govemed byGiton v. Rideout, (to be mentioned below,) but 'for the faQt that the books of tbe husband; which acknowledged that the dividends and interest on them were received for the benefit of the wife, 'and the Wife had once signed the book as having received the dividends herself. The master held that this was evidence in writing of. a trust, and thllf it' was unnecessary to resort to the principle of Rich v'. Cock6U, 9 'Ves. 369"t!.ndthat the 'case tumed on the evidence. , Ridout v. Lewi8, 1 Atk. 269, was a case between a wife and a deceased in which the wife's claim was allowed upon the ground ·she had protested all the time against the, amount paid' her income' of her separate estate as being, only a part of what was ,upon: 'her due. It was a matter of accounts. ", 108 U. S. 66, 2 Sup. Ct. Rep. 351, was a case in ., whi(jh: tM; husband had sold lands which were the separate property- of the wife; and ha:d used the proceeds upon an express agreement with her to return or secure tllemto her. The husband, aftersome years, became ,ins()}vent, and his insolvency was for some time unknown to his wife. After insolvent, he' conveyed to his wife real estate of his own "equiviUent' in value tothe amount of his wife's funds which he had used, and was forced into involuntary bankruptcy. His assignee attackoothe .. deed li.$ Qneniade without' consideration. The court held that the case "turned altogether upon'the evidenee. There had been sharp words and 'ill wife and husband about the matter before the con'veyance'was'l).'iade, and the .conveyance was finally made inpursilance of his repeated promise to do so. It was evident in the case that it had , been 'cotitinuallydaimed,' and as constantly conceded, that this Was a debt due the wife. The deed was therefore held to be supported 'by a "tmfficientconsideration, ahd was sustained by the court. Xn Mopre's.Ex'x,v, 2 Munf. 421,tbe questionwaa not 'between . wife liritl'creditors, but was upon the distribution of the hus-bandls estate afterlliSdeath. ,The wife claimed reimbursement for his collections of 'her sepil-rate estate as husband. The court disallowed the we's' claim . on' the'g;round that "it did not appear that in the husband's life-time the , wife exercised any act 'of ownership over the slaves that had belm her , or in any respect interfered with his receipt of their , ,that the wife lived with her husband upon the "tis'1al ;terms .of husband and 'wife." ,In 'feGray'sEstate,1 Pa. St. 327, was a case in which it ·'John,(}rayhadmarried.Jane Reed in1845. During the coverture Mrs. I, Gray nadbecome entitled to 8500, which waS paid to her husband, who
<Hed intestate. Four or five years before his death Gray said to an acqu!'l.in,tlince several times he had $500 of his wife's money, llJld intende4 to pay it back again,f\nd that it should not be said that he had his IIloney. were made when Gray was out of humor. He said to anotper person that his wife should have the 85,00, and tpat he did not pretlilnd tq claim it. He only wanted the use of the money at that then it was to go to Mrs. Gray and her children. The qourt said clear proQfthat the husQand received the mpney its a loan will undAuqtedly preserve her right of survivorship ,W ,it, but to the receipt of the money are of little They I'lJre noti$pffi,.cient of themselv,es., They must be received ,with extreme yilrilal1Qe, They must be positive, precise, clelj.r, a,nd efl.9h ot4er. The testimony to estabtherQ mUllt be full, and given by iffip3rtial witn,esses. The allowllJlce to wife which in t1;1is ,had been com"mi$llioner w/iS stricken oJ]t by the coprt. v.Qi,deput, 1 Macn. dl;G. referred to apove,lI,'ft$ a case in ·which the widow and executrix, G.ame into possession ;of, ll,p.<l,ut £Q9Q, l1nq. question was whether she should be charged with it as executrix, or hold it as of her separllte es:tate·helpngi,ng rto per as incQm", fr9,n;l1;1(jueparl'tte Her palf,yeltrly was £600, and claimed that the £555 was a balance :<>i the last half-yearly paymeqt .1l4e to her. It paq. heen the uniform practice pf the husband's fqr 14 year;; hef()fe t4e husband's death .to credit the wife's inc0Il?-e to the hpsband's account." This had been of the wife. The husband's aO-: done at the request and by count hAd b6(Jn.a mixed one, of whfAh the income from wife's estate was a Pfl.rt, and he had drawn from day to day miscellaneously on this account aI'I he wllnted money. The hllsband was one of three tr.ustees of his wife's separate The lord chancellor: laid down, as a general principle, that, when the.income due a wife from her separate estate ill paid to the husband .with her coqcurrence or by her direction, inferred from their mode of dealing each other, the income so paid '.canoot 1:>e Mterwards recalled. said: "In this ca,se there is no doubt that the money at t4e banker's walJ there on account of the husband, and not on account of the and held that the wife must account for it, as .e:J.eeijtrix, to the estate. v. SY'rUgg8, 94 U. S. 22, wa1'lacase in whicp husb/1.ud, probably as much . $300,000, made a conveyance of cer. Wn of his real estate for the,penefit of his creditors,and of other of his . real worth probably $20,000, for the Separate use of his wife. The husband was at the time totlllly insolvent, and the wife was aware (If the fact. The contention in behalf of the wife was that the real estate for her benefit had heen by the husbllJld for her with her own money. Funds of the wife had in fttct been received by to the amount .of not more than &7,000, and the husband had in his business,and mingled it his own property, during a peri<¥! of 15 years. . The court held that "if the money which
LYON tI. ZIMMER.
a rn.arried woman might have had secured to her own use is allowed to go into the business of hEll' husband, and be mixed with his property, and is applied to the purchase of real estate to his advantage, or for the purpose of giving him credit in his business, and is thus used for a series of years, there being no specific agreement when the same is purchased that such real estate shall be the property of the wife, the same becomes. the property of the husband for the purpose of paying his deats.He cannot retain it till bankruptcy occurs, and then convey it to his wife. Fraud or no fraud is generally a question of fact, to be determined by all the circumstances of the case." JohnSton v. Johnston's Adm'r, 31 Pa. St. 450, was an action by the widow of the deceased against his administrator for $500 as an amount which had been receiVed by her husband from her separate estate. Johnston. had received part of the inoney in 1847, before the passage of the married woman's act of Pennsylvania, and part in 1848, after the passage of. the act. He had bought a piece of real property before that act with .the money received before its passage; and used the partreceived·afiet the act, with the wife's consent, in fitting up the property. They then moved into it, imd resided there. The husband was of intemperate habits, and had frequently expressed an intention to tepay the t;Jloney received froni. his wife's. estate. The court held that the wife oou1<l not ret:over the money received in 1848, because he had received and converted it with her consent; and that she could not recover the m<,mey. tecei\red in 1847 I that being governed by the case of Gray;, E8tate, 1. Pa.. St. 329, supra. The syllabus of the case is:
:A diBtinct and precise declaration at the time of receiving the wife's chose in action may be sufficient to establish the relation on the part of the husband of trustee for . his wife, but mere loose declarations of an intention to repay . the money are not enough.
Some ot):1er cases were cited at bar, but they present no· feature not embraced fnthose given in the foregoing review. The cases which have been set out in detail are in apparent confliet, yet I believe that a severe analysis of them would show that they are in substantial harmony. At all events, I deduce from them the following conclusions: . If a li,tlsbarid, not acting in a character as to the wife's income, of which she personally has entire contrOl, Collects such income habitually with her consent and acquiescence, and mixes those collections with his own 1l1oneys, and does not, at or before the time of his collecting thein, give proof, by his own declarations or acts, that he receives them as hers, for her separate use, and holds them·as a debt due from himself to her, and she permits this appropriation of her income by him to goon for a protracted period, then, and in such a condition of affairs, she cannot afterwards, on the occurrence of a family quarrel, of insolvency, or other event, recaU a permisSion 80 long indulged, and require him or his assignees to make her a creditor of her huaband for the arilOuhts so collected. If this be the law As developed by the class of cases which have been set out in the foregoing review, I do not think
it.difficult'w a sound conclusion in the interesting and important case now under consideration. Befi>restating this conc1usion, however, r will allude to a feature presented bythiljl case of the Zimmers w,pich is not found in any of the cases which have been cited from the reporters. Mrs. Zimmer emphasizes and iterates, both in her answer to the original bill and in her crossbill, that she inveBted the rents collected by her husband in his mercantile business. What is an inveBt'l7l.efl,t of money by one person in the mercananother? Is it not something more than a loan to that tile business? Mrs. Zimmer was a,partner in life of her,husband by marriage contract., 'I;hey had no children, and there is a statement in the evidence that they had execnted mutual wills testamentary in favor of , each other. She lived for most of the time of conducting the mercantile business in the store-house, and assisted in the businesS. Considered in connectipn, with, t4ese facts" what does her investment of her money in his ' bnsiness nJeaIl? Was it not a contribution ofher income to the capital' of thEl And whatis "capital" but the fund dedicated toa , to suffer' busineS$:to: support its credit, to provide for diminuiWn frOm .losses, and to, qeriveaccretion from gains @dprofits? ' Wben Mrs. Zimmer declares that she was an investor in her husband's bUSiness, 40e; she na'tsay that it she looked to' and' tfusted,ap.d that it was not p¢J'Sonally tha,t she was dealing with as a debtor?.I.a11ude to this feature of the case under consideration as' all those wqip}l."have been brought under review. ' and as producing an equity Zimmer's, mercantile creditors to share in the. assets of the insolvent business in preference to the claim of ooe whq had inveBtedin that business, and assisted in its expecting to profit by its gains; " .. '. .' " But; leaving the equity arisingontof this peculiar feature of the pres-' ent case out of consideration, I come to inquire, how this case stands under the ru}e.,of,}aw which has beell stated as established by the cases which have been brought under review. Previous to the latter part of 1880. or first Qf1881, when family disagreeIl1ents are first noted, and when the wjtl)ess Walker was required to make up the rent-account, and enter it upon the old ledger, is there any evidence that Zimmer, 'at the times of collecting his ,wife's rents, made declarations or did acts of any sort to prove that he received them as hers, and treatedhim-, self as a debtor to her for theIll? I think not. Mrs. Sievers' testimony is,vagllely, that Zimmer was. to put the collections to Mrs. Zimmer's credit in ,hl1nk. Thecollections1fere never so deposited, and Mrs. Zimmer declaI;es J.hat she invested them in his mercantile business/ Mrs. Sievers cloubtless ;heard loose conversations of tha.t sort, but she gives no of Zimmer himself that he clear, precise,pefinit,e, posith;e Was depositing qr ,would deposit the collections in, bank to his wife's credit. testimony as to qpllections anterior'to the family dis.: secondary, or even,more indirect thansecolldary, evidence. He says that he made up the account for the period anterior to 1881 ¥,Qmsuchdata were available, especially from an old book that had
.' LYON V. ZIMMER.
'been damaged by the high waterofl879. This book is not in evidence, of course, items drawn from it by one wh\l did not keeP the bo()k are not such proofs asa courtean regard. While it is very clear tome that, in respect to rents collected by Zimmer after.the latter part ort880, he did make entries in his bMks, and did make declarations proving that.he became debtor to Mrs. Zimmer, yet I am decided andconfident 'lnrUling that such was not the case in respect to rents collected before the firstof1881, ora month or more preceding, and that Mrs. Zirnmer cannot now recaU the collections made anterior to that date with her acknowledged permission and <;lonsent. , 'I think the sum of these collections can be fixed by the court, and I find that they amount to $4,500. As to this amount, so arising, I am that Zimmer was not a debtor to his wife, and, that his preference of her for that amount in the deed was, however well intended, constructively fraudulent, and must be set f;loSide, by the court. In all other respects I think the deed should stand as .valid. ,As tQso much of said deed as secures Mrs. Zimmer for the ·debts for which she was bound l1S security for her husband when he failed, there was no!aerious contentitm' in argumen.t; but, even if there hadb.een, the recently decided case of ChriBtian v. Keen, 80 Va. 369, is conclusive upon the right of a husband to indemnify his wife as his security, and I hold the deed good as to those items.
NOTE. , A married woman is competent to enter into a valid contract with her husband in respect to her, separate estate, and such contract will be enforced. Valensin v. Valensin, 28 Fed. Rep. 599, and. may enforce a debt against him; in Proctor v. Cole,4 N. E. Rep. 303, Youmans v. Loxley, 22 N. W. Rep. 282, New JtJrsey, 'Yeomans v. Petty, 4 AU. Rep. 631; New York. Carpenter v. Osborne, 7 N. E. Rep. 823; 'Wisctm8in, Brickley v. Walker, 32 N. W. Rep. - ; but not in Malsackmetts, Woodwardv. Spurr, 6 N. E. Rep. 521; Silverman v. Silverman,5 N. E. Rep. 639; Bouker v. 'Bradford; ld. 480; Kniel v. Egleston. 4 N. E. Rep. 573.' A conveyance to a wife in rellaYlllent of loans made by her to her husband is not a volnntary convllyance; and if made to satisfy such equitable obligations, and not with iptent to hinder, delay, or defraud creditors, is valid' against them, Metsker v., Bonebrake. 2 Sup. Ct. Rep. 3..'i1 ; Propter v: Cole, (Ind.) 4 N. E. REU!. 303, and 3 N. E. Rep. 106; City Bank v. Wright, (IowaJ ) 26N. W. Rep. 35; Jtmes v.Brandt,(Iowa,) 10 N. W. Rep. 854; Lyon, (Neb.) 27 N. W. Rep. 731; Barrows v.Keene, (N.J.) 8 AU. Rep.713; Bnckley v. Walker, (Wis.) 32 N. W. Rep. -'-; Bresslauer v. Meissner, (Wis.) 'n ·N. W. Rep. 47; as is' also his tnortgage given to her' to secure such loan, Norris v. McCanna, 29 Fed. Rep. 757; Clark v. Hezekiah, 24 Fed. Re}>. 663; Hoey v. Pierron. (Wis.) '30 W. Rep. 692; M:il1er v. Kruegllr, (Kan.) 13 Pac. Rep. - ; and one given to secure the purchase money of property sold to bim by her, Vandercook v. Gere, (Iowa,) 29 N. W. Rep. 448. A husband may, by 'such conveyance 01' mortgage, prefer his wife to other creditors. Hoesv. Boyer, (Ind.) 9 N. E. Rep. 427; Beard v. Puett, (Ind.) 4. N. E. ,Rep. 671; City Bank v. Wright, sUPTa,' Lipscomb v. Lyon, Iupra. A. conveyance to the wife of property purchased by the husband for her, but the tft.le to which he has, without her consent, taken in his own name, is not a voluntary converance, but is vaIi? against creditors. Taylor v. (Ind.) 9 N. E. Rep. 909; :MItchell v. ColglaZIer, (Ind.) 7 N. E. Rep. 199; Heberd v. Wines, (Ind.) 4 N. E. Rep.
The btU'den is on the wife of proving that property claimed to have been purchased from her husband was purchased for a valuable consideration paid by her, or some per· son forber, Hooser v. Hunt, (Wis.) 26 N.'W. Rep. 442; Horton v. Dewey, (Wis;) 10 N. W. Rep. 1)99; and that a mortgage given by him to her was given to secure ail actual 'indebl;ildnel8for money or property advanced by her from, ',her separate 'estate, or by some:pers011'for her use. Hoey v. Pierron, (Wis.) 30 N. W. Rep. 692. In MaryTand the law does not presume a promise on the part of the husband to repaJ'
of tlje wifj!,4PPliopri!lted by him to own use with her and qovseIlt. Taylor v. Brown. 4 AU. Rep. 888. The I'fproofiB on the wife' to that it was Invested for her benefit, and as her separate estate; and a mere genllrl'l ql\<lElrstand,ingtQ that e.trect between the husband and wife will not exclw'l. O.r claim to theirs. & Merchants' Nat. Bank 3 AtI. . · Whet. there fa no evidence of arit agreement or understanding at the time the husbanel the, of by him at aur time that he was to repay it, the be held to have rio legal'claim against him therefor, nor will she be p.ermi.tted. to sp.pr.o.p.riate. h is. PT.OB.,e.rtt '.1io. n.lin.ally ii! repa,ylll.ent thereof, to the. exclu. . . . , W4ke v. Gri1lin, (Neb.) W. Rep. 461.
NATIONAL EXCHANGE BANX; OF BOSTON 11.
Wmm and others.
w: D ·. Michigan. S. D.
·1. NEGOTIABLE INSTRUMENTS - UNAUTHORIZED INDORSEMENT - BONA FroB
Upon proot of tlJ,e .aDd of notes by 8 partner In transferring them by in contravention of the rights of the non-assentin.g. member.s o.f his firm., t.he b ..urden of proof is cast upo.n the inshowing tJ;lat befol,'e maturity for a valulloble conSl eratlOn. Where notes are signed in blank. to be filled up, and this fs done, so that. when they are indorsed to by a third party. they are completefn with no indications of any defect In their execution in his hands, they are valId ijJutffected by the circumstance that they were sig.\led In blank.. Such h:.\lPly 8:0: authority to fill up the blank.
OF PAPER-BOlU l3'IDE HOLDER.
2. SAME-ExECUTION IN BLANK.
Whenever a copartuerBhip ooopts and is engaged in a course of business in which the use of its commercial paper; such as these notes are, is appropriate and reasonably to be expected. or does in fact make use of it. with the common knowledge of the members Of the firm. whenever the convenience or necessities of the firm may require, then thetirm is liable upon commercial paper made in f.tsnanie by o.D8!of its members to one who takes it bona fide. in t4e usual course of bUSIness. be.fore maturity. and for a valuable consideraof th.ll partner making the paper. or misaption, notwithstanding any propriationbY him to otlier uses thlj.'n: those of his firm.
Such liability is not t:J1.e case of a trading copar.tnership. if by that. term is in.tended one eIiga.g e.d· .In .the business of liuyin.g and selling, thQugh it would. as a I:\lle, 'sucl1, but extends to alI cases where the nature of the businel\s fairly and J,'eas\lnably implies such use as an appropriate incident thereto, or where the. actual course of business pursued adopts the practice of issuing the mercantile paper of the tirm to accommodate its necessities or convenience whenever the occasions occur. and such occasions . do in fact occur, and are thlls provided for.
fl. SAME-PRESUMPTION OF AUTHORITY.
, If thll making of wercimtile paper of the firm by one of its members under any circumstances Is permissible and consistent with the rights of the other of the firm, the authority must be presumed in favor of a bona jid6
AS. 'l'0 Tuum PARTIES. Conditions in articles of pa.rtnership restricting the authority of the part· ners, that are not known to third parties, cannot affect them, and the nature of lhe copartnership.is to be determined by what it assumes to the pUblic to be, and by its mode of doing business.