55 N.H. 279 | N.H. | 1875
Lead Opinion
Trustee process — Husband and wife. I am of opinion that this trustee must be discharged. It appears that Mrs. Russell, having money of her own, which by the statute she was entitled to hold against the creditors of her husband, and all the world, loaned some three hundred dollars of it to her husband. It was not a gift, but, as the case distinctly shows, a loan, and that most undeniably implies a valid promise by the husband to repay it. Indeed, the plaintiff's counsel in their brief admit that the notes in question were conveyed to her in payment of a debt honestly due her, precisely as they would have been to any other person. This, of course, shows that, as the law now is in this state, husband and wife may contract together, the common law in this particular having been wholly charged by statute.
I should not be inclined, however, to decide the case on this admission of counsel, unless the admission appears to be in accordance with the law. But I think it is. If a married woman may lease her land to her husband, as was held in Albin v. Lord,
It is difficult to conceive what terms the legislature could have used *281
to show more unmistakably their intention to obliterate entirely, in this respect, the idea of the common law, that husband and wife are a legal unit. As was said, in effect, in Houston v. Clark,
The logical result seems to be, that the status of marriage interposes no obstacle in the way of either party maintaining a suit at law against the other, in respect of those contracts which the wife is empowered to make; for a contract in form is no contract in any legal sense, unless the law, while recognizing it as valid, furnishes a remedy for its enforcement.
Such right of action was, indeed, unequivocally recognized in Claremont Bank v. Clark,
If, then, the defendant owed a debt to his wife, which he was legally bound to pay, there was no reason why he might not use these notes for that purpose as well as any other property or money which belonged to him, and the title thereto would pass to her unless sec. 14 is to have the construction claimed for it by the plaintiff's counsel. That section is, — "Nothing in this chapter contained shall be construed to empower any husband to convey any of his property to his wife, in any other manner or with any other effect than if the same had not been passed."
But I think this was intended to guard against voluntary conveyances for the purpose of defrauding creditors, and that it cannot be held to prohibit the transfer of title in property or money from husband to wife for the purpose of paying an honest debt.
The plaintiffs counsel deprecate this wide departure from the doctrines and practice of the common law. Fortunately, the policy or impolicy of the law is not a matter we are to consider. We are to declare our judgment of its meaning and application, and if a mistake is made in ascertaining the legislative intent, the legislature is always at hand to correct it.
Concurrence Opinion
It appears in this case that Mrs. Russell, being possessed of money, part of which had been given to her by her father, and part of which was the proceeds of her own earnings without any of the property of her husband entering into them, had loaned the same to him, and that he transferred the notes in question to her in payment.
By Gen. Stats., ch. 164, sec. 1, she was entitled to hold this money to her sole and separate use.
If, according to the doctrine of Albin v. Lord,
It is said, however, that by sec. 14, same statute, the husband cannot convey any property to his wife, and that therefore, however just the debt might be, the husband could not pay it because he could not give his wife a title to any of his property — money or other property.
By 1 Pars. on Cont. 345, and authorities cited, it appears that a husband may at common law make to his wife a valid gift of a chattel, so that such a conveyance is not prohibited at common law, and therefore permitted by our statute. This conveyance, therefore, being in this respect not different from a gift, excepting that being for a valid consideration it cannot be disturbed by creditors, is good, and the trustee must be discharged.
SMITH, J. Albin v. Lord,
In re Richardson Cooper, in the district court of the United States for the district of New Hampshire, it was held, by CLARK, J., that a wife, having a valid claim against a firm of which her husband was a member, might prove it against their estate in bankruptcy. Burnham, assignee, v. Russell and wife (the same defendants who are the principal defendant and claimant in this suit), was a bill in equity brought by the assignee of Lahey Russell, bankrupts, in the district court of the United States for this district, to recover the sum of $2,000 in money which Russell had paid to his wife — the same money referred to in this case, and the same notes for which it is sought to charge *283 Murray as trustee of the claimant's husband in this suit. The bill was dismissed by Judge CLARK upon the ground that the complainant had failed to show that Lahey Russell were insolvent, or contemplated insolvency, or that Mrs. Russell knew or had reasonable cause to believe them insolvent, or that the payment to her was in fraud of the bankrupt act, — the learned judge thereby clearly recognizing the right of the husband to pay a valid debt due from him to his wife, if not done in fraud of the bankrupt act.
The trustee must be discharged.
