133 S.E. 360 | W. Va. | 1926
This is a suit in chancery brought by the Willison Audit and System Company against Ralph F. Holden and his wife, Bessie C. Holden, for the purpose of having real property owned by the wife sold to satisfy the demands of the plaintiff against the husband. The circuit court of Harrison County entered a decree in favor of plaintiff for $645.47, from which the defendants have appealed. *311
The relationship of employer and employe, which had existed for several years between plaintiff and Holden, was terminated Dec. 15, 1919. At that time the books of the plaintiff showed that Holden was indebted to the company in the sum of $418.31. Later the plaintiff charged Holden's account with two more items, one of $30.00, the membership fee of Holden to an accounting society, which amount was paid by plaintiff, and the other of $163.88, which represented the amount of a note of Holden bought by plaintiff (after Dec. 15, 1919) from the payee, the Bank of Matoaka.
Mrs. Holden purchased real property in her own name in 1911, where the defendants and their children now live. From time to time since the purchase she has borrowed money, which she has expended in paying off the balance due on the purchase price of the said property, and in making improvements thereon. During 1918 and 1919 the plaintiff made a number of payments to her out of her husband's salary. These payments were in amounts of $50.00 and $100.00, and aggregate about $1200.00. They were made upon the request of Mrs. Holden, with the assent of Holden. The testimony of plaintiff's president in this regard is: "It was always my understanding, both from Mr. and Mrs. Holden, that the moneys which we paid direct to Mrs. Holden, were made to enable her to meet maturing obligations against their home — or the house which Mrs. Holden later built for renting purposes." An account was kept between plaintiff and Holden, commencing Oct. 1, 1917, and closing in Dec. 1919, which shows Holden's salary more or less overdrawn continuously.
Mrs. Holden admitted that some of the money received by her from plaintiff was paid on debts against her property. She could not separate such payments from those for household expenses. Both she and her husband expressly denied any intention to defraud, hinder and delay plaintiff. Holden testified that the plaintiff had agreed to bear the expenses of his membership in the accounting society; that the plaintiff had paid him a bonus of approximately $400.00 in 1918 and that it was his understanding with plaintiff that he was to receive a bonus in 1919 not less in amount than the one of *312 1918. The plaintiff did not controvert Holden's statement as to its responsibility for the membership fee, but its president stated that the bonus for 1919 was to depend entirely on his own volition.
It is plaintiff's contention that (1) the payments which it made to the wife out of her husband's salary were gifts from the husband to the wife with the intention to defraud, hinder and delay the creditors of the husband, and are void under Ch. 74, Sec. 1, Code, and (2) if the gifts were not made with such intent, they were nevertheless voluntary, or upon a consideration not deemed valuable at law, and as plaintiff was a creditor to whom the husband was indebted at the time of the gifts, under Ch. 74, Sec. 2, Code, such gifts are void.
There is no evidence supporting the first contention of plaintiff. The defendants deny any intention to defraud. The close association of the parties, the complete candor of the defendants to plaintiff as to the purpose of the payments to the wife, the expectation of the husband to receive a bonus for 1919 which would have about cancelled his indebtedness to plaintiff (as it stood prior to the entry of the last two items thereon), all repel any inference of fraud. Consequently Ch. 74, Sec. 1, Code, does not apply.
In support of plaintiff's second contention, counsel rely on the severe construction consistently given Sec. 2 of Ch. 74, Code, in Lockhard v. Beckley,
The argument is made that the answer does not plead estoppel and that failure to so plead operates as a waiver of the estoppel. It is the general rule that an estoppel not specially pleaded is not available, even though established by the evidence. But there are several recognized exceptions to this rule. One is that evidence of estoppel is admissible without being pleaded, where the party himself voluntarily produces the evidence which warrants an estoppel upon him. Gillette v.Young,
The evidence shows payments made on the wife's property during 1920, 1921, and 1922. Counsel assert that some of these payments were made with the husband's money, and that no estoppel applies to plaintiff as to such payments. When we look to the record, however, we find that plaintiff's *314 original bill was filed at March Rules, 1920, and that no payments were made until after this suit was brought. Advances to the wife made by the husband after the commencement of this litigation cannot be considered in this suit.
Perceiving no equity in plaintiff's demands, the decree of the circuit court will be reversed and the plaintiff's bill dismissed.
Decree reversed; bill dismissed.