20 Ind. 297 | Ind. | 1863
Complaint by Henderson against Hiram H. Talbott, Trumbull G. Palmer, and Romania • Palmer, bis wife, alleging, in substance, that in 1837, and for a long time prior
Prayer, that the property in question be sold to pay the plaintiff’s claim.
The defendants answered by general denial. The cause •was tried by the court, resulting in a finding and judgment for the plaintiff.
Oxx the trial, it appearing that Horn conveyed to said Bomania the property in question, Trumbull G-. Palmer was offered as a witness to prove certain matters not necessai-y to be here stated; but the testimony was excluded, and exception taken.
The said Bomania was also offered as a witness, in her own behalf, to prove that the property in question had not been given to her by Talbott without consideration other than that of love and affection, bxxt that i't had been conveyed to her for a valuable consideration paid and to be paid by her and her said husband, .
Was there error in either of these rulings?
There can be no doubt that a conveyance made for the purpose of defrauding creditors may be set aside, and the property reached by the creditor for the payment of his debt; but this can not be done where the purchase has been made for a valuable consideration, and in good faith on the part of the purchaser. A purchaser for a valuable consideration, without notice of the fraud, will hold the property as against creditors. Findley v. Cooley, 1 Blackf. 262; Frakes v. Brown, 2 Blackf. 295.
In this case, neither Palmer nor his wife is charged with any notice of the fraud imputed to Talbott. The only ground on which it is claimed in the complaint that the property can be reached is, that Mrs. Palmer is a mere volunteer; hence, evidence that the conveyance was made to her upon a valuable consideration, was material and pertinent.
We are of opinion that Mrs. Palmer was a competent witness to prove the fact above stated, or any material fact in the cause, other than communications made to her by her husband during the marriage. The statute of 1861 provides that “ any person a party to an action may testify in his own behalf, or in behalf of any other party or parties therein,” .except, however, amongst other things, “ husband and wife, as to matters for or against each other, or as to communications made to each other during marriage.” Acts 1861, Reg. Sess., p. 52.
We are not able to perceive that Trumbull G. Palmer had any direct interest in the suit. He was made defendant, to be sure; but that is no reason why his wife should be excluded from testifying in her own behalf in the suit. Gee v. Lewis et ux., at the present term.
The property being conveyed to Bomania, it became her separate property as fully as if she were unmarried. 1 R, S.
The whole interest in the property being in the wife, and there being nothing in the case to which the husband could testify in his own behalf, and nothing to which the wife could testify against her husband, it follows that she was competent, and he incompetent, to testify; she competent, because, by the statute, she could testify in her own behalf; and he incompetent,. because he could not testify for or against his wife.
¥e leave the question open, whether, in a case where the husband and wife are both interested in a cause, each may be a witness in behalf of himself or herself, although the testimony operate incidentally for or against the other, or whether, in such case, both should be excluded.
Eor the error in excluding the testimony of Mrs. Palmer, the judgment below must be reversed.
The judgment is reversed, with costs.