Wing v. Roswald, 74 Ala. 346

Wing v. Roswald

74 Ala. 346 | Ala. | 1883

SOMERVILLE, J.

— A very careful examination of the testimony in this cause leads us to the conviction, that the ■decree of the City Court should be reversed, in its finding on the facts. The sole question presented for decision is, whether the property sought to be subjected to the payment of appellee’s judgment belonged to J. R. Wing, or to his wife Theresa. The title having been taken in the name of the wife, the question is determined by the. ownership of the money— being the sum of three thousand dollars' — shown to have been paid for it. Was this the money of the wife, or of the husband, according to the preponderance of the evidence appearing in the record?. We are of opinion, that the evidence shows very clearly that .it belonged to Mrs. Wing,, as a part of her statutory separate estate. She is shown to have had, at the time of her marriage, in 1869, the sum of eight hundred and fifty dollars. During the two years following, she earned the sum of four hundred dollars in the millinery business, to which she is proved to have industriously devoted herself. The husband, being then free from debt, allowed her to retain these earnings, which, together with her other moneys, were invested by her in real estate, the rents and profits of which were collected by or for her, never having been claimed by the husband, nor appropriated by him to his own use. There is nothing in any of these proceedings vulnerable to the assault of a subsequent creditor, without some supplementary proof of an intention to defraud, which we fail to find in the record. Her earnings, it is true; belonged to her husband; but he had the legal right to repudiate his claim to them, and allow her to retain them as her own property, .there being no existing creditor liable to be prejudiced by the act. So, he could allow the rents of her property to be invested in her name, and for *349her use ; and they would thus become a part of the accumulated corpus of her separate estate, although, if he had once converted them to his own use, he would be under no obligation, to account to the wife for them, and' a repayment of them would be fraudulent an'd void as -to existing creditors. — Early & Lane v. Owens, 68 Ala. 171; Lee v. Tannenbaum, 62 Ala. 501. The accumulation of the wife’s property, as thus acquired, under what is shown to have been a frugal management, accompanied by judicious investments, and the receipt of five hundred dollars given her by the husband’s mother, for the purpose of aiding her in purchasing a home, are facts fully sustained by the evidence; and they satisfactorily account for the'possession by Mrs. Wing of the three thousand dollars in question. ' ’

It is true that we find some contradictions in the details of the appellee’s evidence, as to dates, and perhaps amounts; but the essential and salient facts of the case are not shaken to such, an extent as to authorize us to stamp them, as a sheer fabrication, having their origin in the wicked motive of perjury on the part of the husband, the wife, and the wife’s father, the-witness Bailey. We place very little stress upon the failure o'f Wing to report the money of his wife for taxation as hoarded money. The existence of the money is undeniable. It is Tmly a question of ownership, and, in this view, we are met by the-equally repugnant -fact, that he also neglected to report the money as his own to be assessed for taxation. Such criminal derelictions of duty are not so infrequent as to require courts, to tax their ingenuity in finding some peculiar solution of such conduct as being remarkable or extraordinary.

The decree is reversed, and a judgment will be entered in* this court dismissing the appellee’s bill at her cost.