15 Mont. 260 | Mont. | 1895
— On March 3, 1887, the legislative assembly of the territory of Montana passed the following act: “ That from and after the passage of this act women shall retain the same legal existence and legal personality after marriage as before marriage, and shall receive the same protection of all her rights as a woman which her husband does as a man; and for any injury sustained to her reputation, person, property, character, or any natural right, she shall have the same right to appeal in her own name alone to the courts of law or equity for redress and protection that her husband has to appeal in his own name alone.” (Comp. Stats., div. 5, § 1439.)
As to that act this court said in the case of Kelley v. Jefferis, 13 Mont. 180, as follows: “ This isa comprehensive provision, and commands the courts in this jurisdiction, where a united jurisprudence of equity and law is administered, to disregard the ancient doctrine of the common law on the question under consideration as a dead dogma, and enforce and protect the rights of married women unhampered thereby; and we think the effect
The appellant contends that the loans made by Mary A. to Francis Patten, prior to March 3, 1887, cannot be held as enforceable from Francis to Mary, for the reason that she had not filed any list of separate property prior to 1887, aud that those transactions took place prior to the passage of the act above referred to, and sometimes called the Married Woman’s Emancipation Act. It is true that it does not appear in the case that this wife had filed any separate list. But we are of opinion that it is unnecessary to decide what her rights would be as to the loans made to her husband prior to 1887, for the reason that it appears by the record that the advances which she made to him after March 3, 1887, were more than sufficient to absorb the $600 due from Fraser & Ward, and which she claims as her own. As noted in the statement of facts, she pleads that in consideration of her assuming her husband’s obligations to his partner and to the insurance companies, her said husband had agreed with her that said Fraser & Ward should turn over to her the entire purchase money of the insurance business. The transaction by which this $600 was turned over to her, or assigned to her, was on August 14, 1890, which was some time before the garnishment was served In the case of Lambreeht v. Patten. In pursuance to this agreement and assignment she paid out some $800 on her husband’s account to the said insurance companies to settle his affairs with them, and this money she raised by a mortgage given upon her separate estate. The absolute and perfect justice of allowing this Fraser & Ward $600 to go to Mary A. Patten is made conspicuous by the fact that this very $600 came from the sale of the insurance business, and that her $800 advanced to her husband had gone to settle this very business which was so sold, and to enable the husband to make the sale. Therefore, under the views expressed in Kelley v. Jefferis, supra, Mary A. Patten need not have filed any separate list of this, her property, in order to protect it from the creditors of her husband.
It was said in the case of Chapman v. Summerfield, 36 Kan. 610: “The relation existing between Edward and Sarah W. Chapman, being that of husband and wife, induces the court to scrutinize very closely their dealings with each other; but, when it is clearly established that there is an honest bona fide indebtedness by the husband to the wife, then their mutual transactions may be reviewed in the light of the trust and confidence incident to the marriage relation.” (See, also, Rockford etc. Mfg. Co. v. Mastin, 75 Iowa, 112; Gilbert v. Glenny, 75 Iowa, 513; Hoes v. Boyer, 108 Ind. 494; Jaycox v. Caldwell, 51 N. Y. 395; Tomlinson v. Matthews, 98 Ill. 178.)
We cannot reiterate too strongly the language used in the Kansas case, which we have above quoted, that, in questions of payment by a husband to his wife of moneys alleged to be hers, a court cannot scrutinize too closely the relations between the persons and their conduct as to such moneys. That relation is often a convenient means for the perpetration of a fraud, and when claims of such indebtedness are made between husband and wife, they must be subjected to the most searching examination, if not indeed suspicion. But when the absolute bona fides is established, as it was in this case, beyond any question or cavil, then the fact that the honest creditor is the wife of the debtor cannot in itself be considered as conclusive evidence of fraud against -the clear and positive evidence of good faith.
The judgment is affirmed.
Affirmed.
