90 Va. 771 | Va. | 1894
delivered the opinion of the court.
This was a suit to subject certain real estate, standing in the name of the appellant, Mrs. Martha G. Grant, to the satisfaction of three judgments against the complainant, John P. Sutton, as the-endorser of H. M. Grant, the husband of the appellant, which judgments had been paid by the complainant.
The circuit court, after depositions had been taken, decreed in favor of the complainant, but held Mrs. Grant entitled to a prior lien on the property amounting to $229 11.
It is a principle of the common law, which has been repeatedly recognized by this court, that marriage is an absolute gift to the husband of all the personal estate of the wife of which she is'beneficially possessed in her own right at the time of the marriage, or which may come to her during the coverture, including her earnings, or the products of her skill and labor. Campbell v. Bowles, 30 Gratt., 652; Yates v. Law, 86 Va., 117. And the rule has been declared that purchases of property made by the wife of an insolvent debtor during coverture are regarded with suspicion, unless it clearly appears that the consideration was paid out of her separate estate; and that in a contest between her and creditors of the husband, the onus is upon her to overcome the presumption which the law in such a case raises against her. Yates v. Law, supra.
This the appellant has not,done in the present case. There is no proof that she had any separate estate, or that the money with which the property in question was paid for was derived by her from a source other than her husband. The evidence, it is true, .tended to show that sometime in the year 1881, after the debts upon which the judgments were obtained had been contracted, and after the insolvency of her husband, she opened
But there is a two-fold answer to this proposition, viz: (1) that the evidence does not show distinctly, what sums were deposited by her, and that it does show that during the same period deposits were made with the same firm by her husband, which were placed to her credit, and blended with her account; and (2) that under the original married woman’s act of 1877, the sources whence a separate estate of a married woman, not a sole trader, could be derived, were these only, viz: “ gift, grant, purchase, inheritance, devise or bequest”; and that it was not until the enactment of the present Code, which took effect on the 1st of May, 1888, after the date of the transactions in question, that to the sources above mentioned were added the words: “or in any other manner whatever”; so that the present case, in this particular, is governed by the rule of the common law which entitles the husband absolutely to the wife’s earnings; for there is no averment in the answer that the appellant was a sole trader.
It also appears by the evidence that for a number ofyearsbefore the death of the appellant’s husband, he enjoyed a large, and presumably a lucrative, practice as the leading dentist of Ab-ingdon; and the fair inference from the record is that the whole net earnings of his business, which he carried on as agent for his wife, went into the purchase of the property in question.
The appellee complains of the allowance to the appellant of the item of $299 11, which was declared a first lieu on the property, paramount to the judgments. As to this, the court adopted the conclusion of the' commissioner to whom the mat
Decree aeeirmed.