44 Pa. 413 | Pa. | 1863
The opinion of the court was delivered, by
The law of a case like this is explicitly stated by my brother Woodward in Black v. Nease, 1 Wright 433, where he says: “ It is unquestionable law, that a husband may settle property on his wife, even without the intervention of a trustee, provided he be free from debt, and is not about to embark in business, where his credit will be pledged for new indebtedness. * * * But if such settlement be made in fraud of creditors, on the eve of a new business, and with a view of providing against its contingencies, it is as unavailing against the new creditors as old ones; and moneys so disposed of will be treated as his property and not the wife’s.” To the same point is Thompson v. Dougherty, 12 S. & R. 456; Mateer v. Hissim, 3 Penna. Rep. 160; Sanders v. Wagonseller, 7 Harris 248; Snyder v. Christ, 3 Wright 499.
The conveyance of the property in question, in trust for Mrs. Mullen, as the testimony shows, was a day or two after the agreement of her husband to enter into the iron business in partnership with Snell & Banford, and after he had received a conveyance of the one-third interest in the forge and machinery valued at $8436.20, subject to about $7000 debt. The one-third of this, together with $1000, which Mullen agreed to put in as capital, really constituted his indebtedness on the 12th of July 1856, when he conveyed the property in trust for his -wife; and it does no.t appear that he had any other estate or property what
We think there was no room for the complaint that the judge did not qualify the principle of law which he laid down as governing, where a conveyance is made with a view to entering into new business, by charging that it must be hazardous, to render it fraudulent as to creditors. It might be enough to say, in answer to this, that he was not asked to give any special instructions on this point; and that those who desired them should have asked the attention of the court to the matter by a prayer for instructions. But no one can doubt but this was an element in the case, for it was in proof that the business was hazardous. There was no evidence that it was not so, by the party now claiming that the non-hazardous character of the business should have been left to the jury. Everybody knows that a business requiring
The third and fourth errors need hut little notice. The complaint is that the learned judge should have charged as therein stated, although there was no request to do so. His silence in the particular' alleged, did not mislead the jury in investigating the main question. It was not in the character of a negative pregnant, so as to be the subject of error. We think the charge was; sufficient for the case, and adequate to its circumstances. These errors must therefore be overruled.
We cannot fail to see that the case is a hard one on the plaintiff in error, if possibly he had no fraudulent intent; but the policy of the law on the facts found, places the transaction in a category not to be helped by courts of justice, without doing injustice. Mullen was either badly advised or recklessly acted without advice, or did so fraudulently in making the conveyance under the circumstances disclosed. The hardship is, not that the property was taken for a debt for which he was liable, but that owing to its complications it brought almost nothing, and the debt principally remains. That is not the fault of. the law, but results from an effort to avoid it, and must be borne by those who made the effort.
Judgment affirmed.