Gill v. Cook

42 Vt. 140 | Vt. | 1869

The opinion of the court was delivered by

Pierpoint, C. J.

This is a bill of interpleader. The defendant, Cook, first demurrs to the bill because Foster Y. Howe, of whom he purchased the note, about which the controversy between himself and the defendant Heald exists, ought to have been made a party defendant. Whether the said Howe will be liable over to said Cook in case it turns out that Howe had no title to the note in question at the time he sold it to Cook, is not a question that can be determined in this proceeding, and it is not a question that is at all material to the issue here presented, or that has any bearing upon it. That must be settled between Cook and Howe alone. It is not necessary that Howe should be made a party to give Cook the benefit of his testimony upon this trial; he is a witness under our statute for all purposes, whether interested in the result, or in the question. The only matter to be determined here is, which of the two defendants is entitled to the pay upon the note from the orator; in other words which of the two defendants, Cook or Heald, is the legal owner of the note, and for the purpose of determining that question, Howe is not a necessary party, and the demurrer was properly overruled.

Upon the merits of the bill we are satisfied from the testimony that the money that the orator received from Juliette P. Howe, the wife of the said Foster Y., and for which the note was given, payable to her, was the separate property of the said Juliette, received as the.rent of a farm she owned in Wisconsin. This farm was willed to her by her father, and she had received the rent thereof for many years^ without interference, or claim, on the part of her husband. Whether the law of Wisconsin is the same as in this state in respect' to the right of the wife to the income of her separate estate does not appear, but from the facts developed in this case, we feel at liberty to infer that by the law of that state the wife is entitled to the rent of her real estate; at all events so long as she controls it, collects the rent, and holds the rent as her own separate property, as in this case, it must be regarded as her own property in this state, which her husband has not reduced to possession, and which upon her death will' go to her heirs. ■

The question then arises, did the said Juliette in her lifetime give and transfer this note to‘her husband, and he so take' possession of it as that it can be' said that he had so reduced it to possession that he became the legal owner of it, and thus prevent- its going to: her heirs upon her death. In determining this question, we have no occasion to enquire as to what acts are necessary to be done on the part of the husband to constitute a reducing of property of this kind to possession, so as to vest the title in him, whether the taking possession of the note for the purpose of collecting it •and converting the avails to his own use, is sufficient, or whether he must go further and collect the money o,n the note, or change its character by taking a new one', or what acts would be sufficient: ■because wo are fully satisfied from the proof that Foster Y. never ■•had the possession of this note until after the death of his wife. ¡The relation that had existed tjetween them for so many years -during which she had been compelled, mainly, to rely upon her ■ own resources for her support, with the 'fact that she had kept her ■own property under her own control, would almost preclude the -idea of her then putting it into his hands. The facts that she said nothing of having done so, although, as appears by the testimony -of her nurse, introduced by the defendant Cook, she spoke of her ■ property during her last illness on more than one occasion ; that she ; did not speak of having given it to him, or of an intention to give sit to him, but spoke of it as that which he would have after her •.death, evidently supposing it would then belong to him: these <,things, together with the conduct of Foster Y. after her death, all 'tend strongly to show that he did not even have the possession of '•her property until after her death. This note constituted all of ,,fier personal property, except her wearing apparel and personal . ¡ornaments.

The question then arises, what title did the defendant Cook get by the purchase of the note of Foster Y., and here again we are relieved from the necessity of enquiring as to the rules that would be applicable to the case, if Cook had purchased this note in good faith, without the existence of any surrounding circumstances, calculated to excite suspicion as to the ownership of Howe. For from the evidence, we think the circumstances under which he obtained the note were abundantly sufficient to put him upon his guard and upon inquiry as to Howe’s right to the note. Cook was familiar with the history of these parties, resided in the neighborhood ; he knew that the wife had resided with her mother for years, and that Howe had not been there during the whole period until within a few weeks of his wife’s death, and when he presented himself in the streets of Chester, within three or four days after her death, with this note for sale. The note upon its face told him that, when it was given, it was the property of the wife, as it was made payable to her. The date of the note informed him that it was given at a time when Howe had not been there for years, and that it must necessarily have been given for and as the property of the wife. This of itself was sufficient to put a man of ordinary prudence upon inquiry as to how he came by the note, whether before the death of the wife, and with her consent, or after her death. But this is not all: Cook knew the maker of the note, who resided within a few miles; he knew him to be perfectly good, and able to pay the note at any time when presented, and he knew that Howe knew him to be good. This being so, the fact that Howe was willing to make a deduction of about forty dollars from the amount due on the note would have been sufficient we think to excite the suspicion, in any sane mind, that there was something wrong about the transaction, and of itself enough to put him upon inquiry. Then again the discrepancy between what he swears to in his answer and in his testimony, in respect to what he paid for the note, excites a suspicion in our minds that' his own part in the transaction was not entirely in good faith.'

In the argument, considerable importance was attached to the fact that the note was past due at the time Cook purchased it. We do not think this fact is very material to the present issue. As between the maker and the holder of a note, such fact might become very material in determining what defenses the maker would have the right to set up against such holder, but here there is no controversy on the part of the maker ; he concedes the note to be due, and is ready to pay it; be is only seeking to find out who the owner is, and in deciding that question, the fact that the note is past due is of comparatively little weight of itself. Past due notes we apprehend are too common to have that fact alone excite a very serious suspicion as to the title of the holder. On the whole we are satisfied that the decree of the chancellor was right.

Decree affirmed and the case remanded..