Wheeler & Wilson Manufacturing Co. v. Litwin

57 N.J. Eq. 660 | N.J. | 1899

Dissenting Opinion

Van Syckel, J.

(dissenting).

On the 2d of December, 1895, Litwin became surety on a bond given to Wheeler & Wilson, the complainants, and made oath on the bond that he owned property at No. 157 William street, Newark.

Judgment was recovered January 25th, 1896, by the complainants on this bond, but before judgment was entered Litwin, through a third person, conveyed the said property to his wife by deed dated December 23d, 1895.

The bill was filed to set aside this conveyance to the wife.

The vice-chancellor decided that the conveyance to the wife should stand as security to her for the sum of $500, which he found she had advanced to her husband to buy the property, and that it should be set aside subject to such lien for the benefit of the wife.

The case clearly shows that the wife knew when she furnished the money that the title to the property purchased was taken in the name of her husband, and it was permitted to remain in his name until a short time prior to the rendition of the aforesaid judgment.

In my judgment the decree is erroneous in preferring the wife to the creditor.

The wife put it in the power of the husband to defraud his creditor by holding himself out as the owner of the property. The creditor, in this case, relied upon the apparent ownership of the husband, and the wife is therefore estopped from setting up her claim. The cases are to that effect. Ruckelschaus v. Oehme, 3 Dick. Ch. Rep. 436; Ruckelshaus v. Borcherling, 9 Dick. Ch. Rep. 345; affirmed, 10 Dick. Ch. Rep. 589.

Chief-Justice Marshall, in Sexton v. Wheaton, 8 Wheat. 229, *664declares the law to be that “ a wife, who is herself the instrument of deception, or who contributes to its success by countenancing it, may with justice be charged with the consequences of her conduct.”

In application of that well-established doctrine, it was held in Besson v. Eveland, 11 C. E. Gr. 468, and in City National Bank v. Hamilton, 7 Stew. Eq. 158, that if a wife permits her husband to take title to her lands and to hold himself out to the world as the owner of them, and to contract debts upon the credit of such ownership, she cannot afterw'ards, by taking title to herself, withdraw them from the reach of his creditors and thus defeat their claims.

For this reason I am constrained to dissent from the opinion of the court.

For affirmance — Depue, Dixon, Garrison, Lippincott, Ludlow, Collins, Bogert, Hendrickson, Adams — 9. For reversal — The Chief-Justice, Van S yokel, Gum-mere, Nixon, Vredenburgh — 5.



Lead Opinion

Per Curiam.

Decree affirmed, for the reasons given in the court of chancery.