,: 'FEDERAL REPORTER ,vol.
ficiently considered, partly through the inadvertence of the court, and parlJ}:hbeamse'ithe ors:ltirgumeIit:rwl!S' mainly directed to the question whetbe1:ri8uch stay should or shouldi'not be granted. Upon the reargument,lthe Tact is made: plain 'that what is really 8ISked for is leave to file a cross-bill. ' In view of.. the avermellts.contained in the eross-bill subtbitb:ldi '(1m the argument, :that relief should be granted. Whether or not l'lufficient can be show,n to entitle the complainant to an injunctioD stayingthe ioperationdfJudge CoxE'sdecreeolay be determined when the proofs 'are, in, or as a separate motion. "
BAciER 'lI.MEYERet w:.
(O'lrcmt Court, E. D. .,Ar7ca'l,t8@. :Novemll!B' 28, , .. , '. . ,,')!; ,
by a husbll.lI!l, to IUs that, he has certain bOllcis. wb!cb to be ll"I\s,when not accompanied by.uehveryof the bondR or cPange In ins treat'merit oli 1ihem, does not·pass.tltleto the bonds, or make him liabl13 to her for their " '.; . Property 'purchased by a man' in his' Wife's liame with money hdrrowed by him in 4ername, but on his credit, and that of the property,ls liable forhlsdebts". '
CONVlliYANCE. .' . · .. .' , .
8,HOl<JESTlltAD-FRAUD-HUSBAND AND WIFE"
.'bY them· as a homestead,is; as agains't<hlscreditors, exempt as a homes
spite of the fraud , .... .
"Pl'opertypuTchased by an insolvent husband in ,his wife's nll.me, and
In Equity. Cohn &: Cohn, for complainant. &: AWltin and Blackwood &: Williams, for defendants.
CALbwELL, J. The defendant Gane Meyer three promissory notes payable to the plaintiff, for bqrrowed moneY,-one dated April 2, 1884, for $5,000; one dated July 5, 1884, for 82,500; and one dated July 28,. 1884, for 83,523. judgluents on these 'potes on the law side of, this contt'.1'wo of the. judgments aggregating 88,964.42, and costs, were rendered on the 27th of October, 1886, and the third judgment for 86,750,?3,and was recovered on the 14th .of November, 1888. Executioriswere issued on these judgments, and returned nulla bona. Thereupon the plaintiff filed this bill for the purpose of subjecting to the pAyment of his judgments the real estate and personal property mentioned in the bill. On the face of the record, the defendant, Bertha Meyer, wife of the defendant GabeMeyer, appears to the owner the real estate; and':slie also c1tl.ims the personal property, consisting of goods, wares, and merchandise, as her separate property. Ga.be Meyer has been 1'ohnany years a merchant, plllnter, and general trader. His business was quite extended iIi the lilieS indicated. His -business careerhurbEleh marked by' those vicissitudes ofJfortune which
,BACKEaV. ..·.. ,MEYER. ',", -.,
notunfrequently ,befall persons engaged in his pursuits. In 1860 he fliiled, hut' in"the of six or seven years he wasagainprosperou8, paid off his old debts; and continuedto do a large business as a planter, merchant, and trader, lintil1884, wheu he failed, owing a large amount, a portion ,ohvhicb remains unpaid. Concurrently with his failure, he began toplirchase and cultivate plantalions, in the name of his wife; to buy and seJllands in her name; and to purchase stocks of merchandise, and pursuits, as a boot and shoe store"ij.,<Iuor stote, etc., ih'hername. ,The businees pursuits conducted by Meyer, after his in his wife's name, were ,about as and of the ,same general character, as those conducted iq his own name, before his failure. ' , ' , . The bill. calls ,:defendanuito' ex:p'ain this sudden and wholesale frOm the Husband's to' the ,wife's name in tp,e purchase and ownersnipdt'property, and the"¢oD<iuct of business. The first and chief explimlitiQn offered'is a statement to the effect tbat in 1868, he gave his wife $8,000 in United an inquhY'lnt6 the circumstances of this alleged giftshowll it beer.. a mere' phantom, so far, as ,the .111'Yi is concerned. 'On one occasion he tOld his wife he had $8;000 ill United States which were lobe hers; as a;gift.' If the bobds 'were exhibited at an, they rerpainedin own -hands. '. He did not, at, that Or at any other time thelll: tb.hiswi'fe, or person for her. He did not separate them from his other assets, or put any mark on or about therp. ,to indicate'theywere his wife's. He never at any time made an entry his his wife credit for Hie bonds or their proceeds, 1>ut treated tliefu'in'all respects his own,Prcm\'lrty, and used in of, own name. '.The gift began and ended in words. actscrirresponding to the words to ,make them e:(l'ectual. There years afterwards, Meyer's pleasant but delusive speech to 'his wife''isHrought forward to explain and support the'wife's to .the properttin controversy. "It is ineffectual for, that purpose. A mere declara.tlotl that 'one gives 'another a certain thing does not gift, unless it is followoo up' bygiving the donee possession of the thin.g, or 'by thel of something equi;valent to a transfer of the possession. Pelers'v.CdnBttuction 00:,34 N. ",.Rep.,190; Flqnders v. Blandy,12 N. If 'Meyer's declaratioQ lopis wife made these pi'operty, then she and all other wives have good ,title to all the worldly goods of their husbands, .for 'every husband at the ma.rriage altar' declares:: "Witlf this r thee wed,and with all my worldly gooos I thee endow,"-and this 'declaration is in the presence of witnesses, lind is followed on the'instant by a delivery of t1:le gQods,by the gift of the' ring., In this case there wete no witnesses,and nO'deutery'of the bonds in fact or by SYmbol; The defendant's case '\fdUM been quite, as it had Tested on the gift at the mar-, rlage'altltt: "Meyer he gaveber the bonds, but not do'it. himself, and never seems,tQ hltve thpPght of them until after lapse of 14 years,and aft,er
" . ,',
bec()]ne in;olvent. Me.yer sqrt 9f legal or equitable right or claim to bonds' or the husband's simple declaration that they were hers, ap'd cannot therefore be made the basis of a legal or equitable claim obher husband or his estate. Cases, mpraj and see lIurnesv. Scruggs, 94 U. S. 22, 27. After his failure, Meyer used 32,500 of his inoney, collected on Qutstandings due him, in purchasing property in the name.Of, his wife; but it is said he did this for the purpose of recompensing bis wife in some measure. for her bonds, which had used.. But the bonds were not hers, and any claim restingon them must share the tate of her claim to the bonds. It is said much of the property in controversy was purchased with her credit. This conmoney borrowe?inMrs'M:eY!'lr's, na,me, and tention rests on the form of tM'transaction,ratherthan .thefacts. Meyer signed his wife's name to thenbtes;but had no credit, and could have had none. She is shown to, be a very domesticlady, who knows absohitely nothing about business or businesf;l affairs, and who has no personal knowledge of the business conducted in her nameqy her hus· band. It is vain to talk of one having good credit with banks and whole. sale has neitll,er money nor property nor,business capac.. ity. · Meyer's pi-operty was in hiswife's name, and t,his made. itnecesMrs. Meyer's aary.for him' to use her name iJ?bis name represented nothing of value to a .bank or merchant, except Mllyer,sproperty, which stood in her name, al1d the.creditmust there. fore ha\re been given on the faith'of this property, and Mllyer's business capacity. l1yde v. Frey, 28 Fed.Rep. 819; Blum v. ROI!8, IOAtl. 32,116 Ptt.St.163;' Vowinkle v. Johnston, 11 AU. Rep. 634; . Trost Cfi.v. Fisher, 25 'Fed; Rep. 178. The of'proof on to make out hei-,rightto this property, (Seitz v. 5,80, '583;) and pas not beeninet at any point. Undoubtedly an in· husband maydevoteitll qf bis time, skill, and talen.ts to the agementand care ofhis wife's property, without rendering the property, or the' rents tit income from. it, liable for his debts. But the property muat be the Wife's.. Property pQrchased"in the ,wife's name, with the hU,shand's means, or upon his credit when he' iil insolvent, is not her p'toperty,asl;tgainst the claims of his creditors. In such a case, ina. contest betVl'een the wife and the nusband's creditors, the latter have the better right to the property, and the rents and income from)t, whether produced 'bythe labor and skill of the husband or others.' Meyer received at one time $1,200 as her distributive share ofau estate in the state of Mississippi. That her money,and with it Meyer purchased, in her name, the Park View property. 'rhe plaintiff cannot sub, ject this property to the payment ofthese judgments.. . . ' The homest,ead of the defendants was purchllsed by Meyer after his insolvency in'the name of 'his wife.,. bl.lt this [apt not make it any the less the family homestead. , If,Meyer had purchased the homestead in his own name, it would, under and laws onhis sWte, have been exempt, and the creditors were not therefore defraudedor prejudiced by the fact that it was' purchased in the name of he wife.'
KENNEY 'V. CONTNER.
As to the Park'View property and the homestead the bill is dismissed. A decree will be entered directing the sale of the other property to satisfy the plaintiff's judgments.
(Of!rcuit Court, W. D. Pennsywania. September 29, 1890.)
EQUITY-LACHES-AcTJON TO CANCEL DEED.
The heirs of the grantor filed a bill against the widow, children, and executor of the grantee. to set aside a deed of land on the alleged ground that it had been obtained without consideration from the grantor, an aged and feeble woman,when mentally incompetent, by an abuse of a fiduciary relation existing between her and the grantee, and also by an actual fraud practiced by the grantee and one of the subscribing witnesses. The grantor died a few weeks after the date of the «leed, and it was then immediately recorded, and the plaintiffs had actual knowledge its contents. .Fifteen years had elapsed before the bill was filed, and in the mean time the sJlbscribing witness whose integrity was assailed and the grantee, both of whom survived the grantor a number of years, had died, Held, that the plaintiffs' laohesand thelle deaths were, of themselves, sufficient to· preclude eq,uitable relief.
The calie, however, oonsidered on its merits, and the oonclusion reached that the deed was exeouted when the grantor was in possession of her BOund mental faoulties, and was her free, voluntary, :and deliberate aot, procured by no improper infiuence, and untainted by any aotual or constructive fraud.
In Equity. O. W. Aldrich, Rufus C. Elder, and Andrew Reed, for plaintiffs. D. W. Woods and James e. J)oty, for defendants. ACHESON, J. The plaintiffs are the heirs at law of Elizabeth Kenney, late of·Menno township, Mifflin county, Pa., who died May 25,1874, aged 82 yeara. James Kenney, one of the plaintiffs, is the sou, and the other two plaintiflsare grandchildren, of John Kenney, a brother 6f Elizabeth. The defendants are the widow and children and the executor of Davis McKean Contner, who died on or about January 1,1889. The bill of complaint was filed May 6, 1889. The pnrpose of the suit is to set aside an article of agreement or lease between Elizabeth Kenney and Davis McKean Contne!', and a deed of conveyance from her to him. The article of agreement bears date November 8, 1870, and it was duly acknowledged before Samuel B. Wills, a justice of the peace of Mifflin county, but was not recorded. Dr. T. A. Worrall and Wills are subscribing witnesses to the agreement. After reciting that "whereas, the said Elizabeth Kenney has been for a long time living with and kindly cared for by the said Contner, and whereas, she is desirous to reward him for his care and kindness, as well as to improve her farm,"-a tract of about 130 acres of land in Menno township,-the agreement provides that Contner shall find the materials for and erect on the farm a good two-story house and other buildings, at a cost not to exceed $6,500; the account of the cost to be kept by him and verified by his affidavit, which shall be .su.fficient evidence of correctnessj. ,and, further, that he \·.43F.no.11-45