105 Mich. 199 | Mich. | 1895
This is an action of trover to recover damages for the alleged conversion of four horses, two double harnesses, etc., levied upon and sold bj the defendant, acting as sheriff, under an execution against Daniel M. Jansen, plaintiff’s husband. Mr. Jansen had been engaged in business as a string butcher, and from time to time made purchases of Nelson Morris & Co., who were engaged as wholesale dealers in meat. On
The plaintiff requested the court to charge the jury as follows:
“If you find from the evidence in this case that the*203 warranty deed of November 16, 1885, of tbe lot known in the evidence in this case as ‘lot No. 5/ from Daniel M. Jansen to Aaltje Jansen, was given without any intention of defrauding the creditors of the said Daniel M. Jansen, and in fact did not defraud such creditors at that time, you are instructed that such deed would convey the entire right and title of the said Daniel M. Jansen in and to the said lot 5 to Aaltje Jansen, whether the same had been purchased originally with her money or not, as, under such circumstances, he had a right to' make his wife a gift of said property, and subsequent creditors have no right to complain of the same.”
And also another request, as follows:
“If you should find that said lot 5 was purchased by Aaltje Jansen with her money, and the title to the saíne was placed in the name of her husband, Daniel M. Jansen, at that time, and that he afterwards, in recognition of her right to the ownership of the lot, executed a warranty deed of the same to her at her request, you are instructed that such deed would convey the entire right and title in said lot of the said Daniel M. Jansen, acquired by such original conveyance to him, and subsequent ■creditors of the said Daniel M. Jansen cannot object to or attack the validity of such deed.”
And, also:
“By the execution and delivery of the warranty deed from Daniel M. Jansen to Aaltje Jansen, November 16, 1885, of lot 5, all title of said lot which he afterwards acquired by reason of the administrator’s deed of 1887 inured to the benefit of the said Aaltje Jansen.”
These requests the court refused to give, but charged "the jury as follows:
“The title to the property — the real estate — is not involved in this suit, but the title merely to the horses, harness, and the bundle of straps; but the whole relations of the parties to each other during their whole married life, nearly, and their handling of property, have been admitted in evidence in. this case, not for the purpose of determining their title to the realty, but. as bearing upon the question of whether or not the fraud has been perpetrated with reference to this suit; and all of*204 these facts and circumstances are to he considered only in so far as they tend to a solution of the question here involved, — whether or not the property was the property of Mr. Jansen, and whether or not it was fraudulently conveyed.”
We think this instruction was misleading, and that the requests preferred should have been given. It is true that the title to the real estate was not the principal question in the case, but it was one question; for, clearly, if the jury found that the plaintiff’s claim to ownership of the real estate was ill founded, there was no source from which she could have derived the moneys to make the advances. As this question was made a material one by the course which the testimony took on both sides, it was quite essential that the jury should not be left to grope in the dark in determining, as a preliminary inquiry, who owned the real estate. We might be able to say that, so far as the question of fact involved as to the ownership is concerned, the jury would have felt authorized to consider that, under the instruction given. But the effect of the deed of lot 5, made November 16. 1885, was a legal question, upon which an instruction from the court was not only appropriate, but, if asked for by counsel, a matter of right.
There are other objections urged, which we do not deem it necessary to consider, as they are not likely to arise upon another trial of the case:
Judgment reversed, and new trial ordered.