16 Iowa 141 | Iowa | 1864
It is first suggested by appellee’s counsel that the testimony is not certified in such form as to properly bring it before us.
The case was tried in the first method provided by statute for hearing equitable issues, and on this appeal, therefore, we are to try it on both the law and' facts as apparent of record. (Rev. 1860, § 2999.) The practice in such cases does not require that the evidence should be embodied and preserved by bill of exceptions as in a law action. The evidence is to be in writing, and when the clerk certifies, as he does in this instance, that it is all transmitted to us, we act upon it in determining the facts, and must take such certificate as conclusive, until it is attacked or impeached by some suggestion that a part of-the testimony has been omitted, that improper matter is included, or other similar method.
When the clerk attaches his proper certificate, a mere suggestion, on the hearing that there is no bill of exceptions embodying the, evidence, or that it is not all before us, cannot avail; for if the record is imperfect the objection should be made before the submission of the cause, unless good and sufficient cause for not making it before should be shown.
Appellants object that the testimony of Abigail R., the wife of the respondent, Stephen F., taken at the instance of complainant, was improperly admitted against the hus'band’s objection.' We must confess to some surprise that this objection should be made by appellants, for while her testimony was taken by complainants, it serves but little, if any, to aid the case made by the bill. Indeed, without this testimony, we think complainant is entitled to the relief asked, and the only question is whether, considering it, the facts are substantially changed. Our conclusion is, that though the testimony of the wife is against rather than in favor of complainant, and whether it is admitted
The mere borrowing of money in the wife’s name, securing the same by mortgage on the land to pay the purchase-money, would not make the property her’s or give her an equity in it as against his creditors. Nor does she acquire any greater right from the fact that a portion of the products of the farm, held in her name, were applied to liquidate such debt. For while it is true that in equity the wife is capable of taking real property to her own separate use, and of holding it independently of her husband, she cannot do so by the use of his means, or those which the law recognizes as his, to the prejudice of his creditors. Thus, while she might, with money devised to her or means given to her by her father or other relative, purchase real estate and hold it in her own name exempt from her husband’s debts; she cannot by taking title merely in her own name and paying the purchase-money from products of the estate, raised and produced by their joint labor, claim that her claim or equity is paramount to that of existing creditors. As a rule, the services of the wife and the products of her labor belong as much to the husband, under our statute, as
And under this head, appellants insist that the property of Harvey has not been made liable by scire facias and that until this is done and an execution, as to his property, returned unsatisfied, in whole or in part, equity cannot grant relief.
The bill shows a judgment against Harvey & Dinsmore as a firm; that Dinsmore is a non-resident; that the firm has no property subject to execution from which the judgment, or any part of it, can be made; that a return to this effect had been made by the sheriff upon an execution issued on said judgment; that the sheriff was unable to find any property subject to said writ, of the said Harvey, and by direction of complainant’s attorney had levied it upon the lands in-controversy; that the title to said lands is in Abigal R., the wife, in fraud of the husband’s creditors ; and prays that the title of the said wife be declared void as against petitioner’s rights; that it be decreed the property of Stephen F., and subject to the execution aforesaid and for general relief.
We do not controvert the general proposition, that a scire facias is necessary to subject the individual property
Conceding, as claimed by appellants, that chapter 127 of the Revision provides for the only creditor’s bill known to our practice, and that thereunder the return of an execution, nulla bona, is necessary to entitle a party to seek the aid of a court of equity, the argument is not advanced much, nor by any means conclusive, as applied to the present case. The sheriff has returned, nulla bona, as to the partnership, and the same as to the individual partner, aside from the property, the title to which is now in controversy. And we suppose the practice to be, neither improper nor irregular, which shows an execution returned, no property found as to the partnership, and that there exists property which may be subjected to its payment, belonging to some indi
The same objection in principle was made in the case of Postlewait et al. v. Hows et al., 3 Iowa, 365. That was a creditor’s bill to reach certain property held by the widow and make it liable to the payment of certain judgments against her late husband.
It was objected that aportion if not all of the judgments were dormant, that executions could not issue thereon till revived by scire facias, and that complainants could not therefore proceed in equity, at that time, to subject the property to satisfy the same, and yet it was held that the object was to remove an obstacle, which it was alleged was fraudulently interposed to prevent the collection of the judgments, that as such creditors, complainants had aright to ask its removal, though, when removed, they should be turned over to their proper, independent, legal remedy, to obtain process" of law to make the sale. The cases of Hogan v. Walker et al., 14 How., 29; and Burrough v. Elton,
Decree affirmed.