25 Mich. 195 | Mich. | 1872
The defendant in error brought replevin for the stock in trade in a meat market, of which she claimed to be proprietor, but which Rankin, as sheriff, had taken on execution as the property of her husband, Richard J. West.
Richard J. West, it appears, had previously carried on the same business in his own name; but being embarrassed, and apparently unable to continue it, one Hubert, from whom he had been in the practice of purchasing stock on credit, refused to trust him longer, but made a bargain with Mrs. West, by which it was agreed he should sell to her, and she should pay him for the property. Hubert said he knew there were debts against her husband, and he did not wish to make such sales as would make the property sold, subject to executions on such debts. This arrangement was carried out; a shop being leased in the
The defense in the replevin suit was, that this arrangement was fraudulent as to the creditors of Richard J. West, and that the business thus conducted was still his business, carried on in the wife’s name merely as a cover.
The instructions given by the circuit judge to the jury were as follows:
“This is an action of replevin brought by the plaintiff against the defendant for certain meat found in a butcher shop on the first day of February, 1870.
“The cause of the replevin was this: James I. Robinson had, on the 21st day of August, 1869, recovered judgment against Richard J. West, for the sum of three hundred dollars and costs. On the 28th of January, 1870, the winter following, he sued out an execution on that judgment, and levied upon the property in question.
“The validity of the judgment and the execution are all conceded by counsel, and the only question reserved for you is, as to the title of the property levied upon.
“If the property, at the time of suing out the replevin, was the property of the plaintiff, she should receive a verdict at your hands. If it was the property of Richard J. West, then' it was properly levied upon by said defendant, who was deputy sheriff here, and the verdict should be for the defendant, for the value of the property, and interest from the date of the replevin, on February 1st, 1870, and for six cents damages for the detention of the property by the plaintiff.
“The only question, as I have said, left for you, is as to the question of the title of the. property.
“At common law, before our statute was passed, all personal property of the wife, that she owned at the time of her marriage, vested in the husband, and she could not own personal property herself at law. By the statute
“If the plaintiff acquired this property, if it became her property by the transaction between herself and Hubert, then you have no further inquiry; you should find for the plaintiff.
“Mr. Hubert testified that, Richard J. West being indebted to him some hundreds of dollars, he refused to furnish him any more goods; that he would not give him any credit, and that he made a bargain with the plaintiff by which it was expressly agreed that he should sell to her, and that she- should pay him for the property. He said he knew there were certain debts against Richard J. West, and that he did not wish to make such sales as would make his property subject to executions against Richard J. West. Now, such a bargain as that, Mr. Hubert had a right to make. Any man has a right to sell his own property, so long as he does not defraud his creditors. It is not alleged that Mr. Hubert was defrauding any of his creditors.
“ It is not claimed but that the property belonged to Mr. Hubert. He had a right then, I say, to sell his property to whomsoever he pleased. He had a right to sell it in such a way as to secure himself that no creditors of Mr. West should levy upon the property. The fact that Mr. West was indebted did not prevent Mr. Hubert from selling his property to whomsoever he pleased.
“ But if you find that the transaction was intended by all the parties to the contract, including Hubert himself, as really for the benefit of Bichard J. West, but for the purpose of preventing the creditors of Bichard J. West from collecting their demand, it was made, in form merely, a sale .to the plaintiff, then you should find for the defendant; that is to say, if Mr. Hubert really intended to sell to Bichard J. West, but for the purpose ,of enabling Biehard J. West to conduct his business in' such a way that his creditors could not levy upon • his property, and that was the intention of the parties to the contract, then I charge you, you should find for defendant.
“But if Mr. Hubert, even although he knew that Bichard J. West was indebted, sold the property to Mrs. West, intending thereby to vest the title in her for the purpose of securing himself and making a good sale, and not for the purpose of defrauding the creditors of Bichard J. West, then you should find for the plaintiff, for it is purely a question of title.”
The record states that, to that portion of this charge which instructed the jury that they could only find for the defendant if Hubert sold the property intending to assist Bichard J. West in defrauding his creditors, the defendant excepted, though in fact, no portion of it so instructed them. And he also requested the court to charge the jury
The questions before us arise exclusively upon the charge as made, and the refusal to charge as so requested.
We have heretofore decided that a married woman may carry on business in her own name, and. for that purpose may make herself liable for a purchase of property on credit. — Tillman v. Shackleton, 15 Mich., 447. And if she may do this, there is no reason in law why her husband may not be her agent for this purpose. And if the husband, by reason of financial embarrassments, is unable to carry on business and support the family in his own name, it would be remarkable if this should be held to constitute any impediment to the wife’s engaging in business for that purpose. It would seem, on the other hand, to constitute a very sufficient and laudable motive for her doing so.
It will be observed from the request to charge made by the plaintiff in error, that he does not ask a question of fact to be submitted to the jury, but he desires them instructed that a business thus carried on is in law a fraud upon the creditors of Mr. West, if its purpose was to keep
We also think the charge given was not open to complaint by defendant under his exception. Hubert, according to his testimony, refused to sell to West, because he did not think it safe to trust him, but was willing to sell to the wife on credit, trusting to the property in her hands, and to her honesty in making it available for his protection. If he thus made the sale to her in good faith, it is difficult to discover how the title could pass to the husband, contrary to the intent of both parties, for the benefit of the husband’s creditors, who could neither be wronged by any sale to the wife, nor had any right to insist on any sale to the husband. It will be observed that the judge did not charge, that an actual fraudulent intent on the part of West and his wife, in carrying on the business for West under the cover of his wife’s name, might not entitle the creditors of West to treat the business as his, irrespective
This was correct as far as it went; and if the defendant desired instruction as to the effect of an actual fraudulent intent on the part of West and his wife, irrespective of any intent to defraud on the part of Hubert, he should have requested it. This we have seen he did not do, but on the other hand, the instruction asked was, in effect, that the transaction between the three parties was fraudulent in law. It would be unfair to the judge to hold that he committed an error in not noticing a point to which his attention was not called.
We think there is no error in the record, and that the judgment should be affirmed, with costs.