Thompson v. Thompson , 82 Pa. 378 ( 1876 )

Mr. Justice Woodward

delivered the opinion of the court, October 23d 1876.

When George Thompson procured the conveyance to be made by Wilson to Mrs. Thompson he owed no debts, and nothing appeared on the trial to show that he was about to enter into any hazardous business or to contract any fresh obligations. Doing no act indicating an intention to defraud creditors, it was competent for him to settle the land in controversy on his wife. And his right to do this was not affected by the bare fact that he borrowed $500 to pay on account of the purchase-money from William Thompson, the plaintiff below, at the time of the execution of the deed. In Williams v. Davis, 19 P. F. Smith 21, land subject to a purchase-money mortgage given by a husband had been conveyed to a wife. It was held that this was not such a debt as to render the conveyance void against subsequent creditors. The same point was ruled in Nippes’s Appeal, 25 P. F. Smith 472. In the last case it Avas said, that in the absence of proof of any fraudulent intention, the fact that the land conveyed was all the property the husband had, was immaterial. If the plaintiff lent his money with full knowledge that the deed had been executed to Mrs. Thompson, the land in her hands could not be made liable for the debt her husband had incurred in consequence of his subsequent inability to pay. The loan was to the husband, and if the plaintiff knew he had no title, it was upon his personal credit and not on .the credit of the property. On the other hand, if the money was lent in ignorance of the true nature of the transaction, and in the belief on the plaintiff’s part that the deed of Wilson and his wife had been made to George Thompson, he had the right to pursue the land. To permit the wife to hold it relieved from a claim for a portion still due and unpaid of the original purchase-money which the plaintiff had advanced under a mistake in regard to the ownership, would.’ be the sanction of a fraud.

On the trial the defendants alleged that the plaintiff was aware of all the facts. There was evidence that he was present when the deed'was executed. The contract to buy had been made in pursuance of his advice. George Thompson swore that he handed him the deed before it was signed, with a request that “he would look at it to see if it was all right.” And his name appears as a subscribing witness to its execution. The last three assignments of error raise in substance a single question. The court had been asked to instruct the jury, that if they should believe from the evidence that the plaintiff knew of the conveyance to Jane Thompson, and lent the money to George Thompson, then the plaintiff accepted George Thompson individually as his debtor, without reference to the property; that upon such facts he would be estopped; and that his signature as witness to the deed was some evidence of knowledge on his part. The instructions asked were refused, and a verdict in favor of the plaintiff was peremptorily directed. All these points should have received an affirmative answer. In French v. Mehan, 6 P. F. Smith 286, land had been conveyed in 1828 to a husband and wife as joint tenants. The grantor at the time held a bond against the husband for which a judgment had been recovered in 1832. Under that and other judgments the land had been sold in the husband’s lifetime. After the husband’s death the wife brought ejectment, and it was held that she was entitled to recover. Judge Williams, in charging the jury on the trial in the District Court, said: “It has not been shown that the husband, at the date of the purchase, owed any other debt than the one to Dickerson, the grantor of the land, and it can hardly be presumed or inferred that the deed was made to the wife for the purpose of hindering and delaying the grantor in the collection of the debt due by the husband. It seems to me that both he and the purchaser under the judgment obtained by him for such indebtedness, would and ought to be estopped from making any such allegation.” The judgment was affirmed'on the grounds stated by Judge Williams. The fact of knowledge was denied by the plaintiff. He said he first discovered that the deed had been made to Mrs. Thompson during the winter before the trial. The question-rested on the evidence of the witnesses, and could be settled legitimately only by a verdict. The court should have referred it to the. jury.

The first point of the defendant was properly refused. In the bond which was given by George Thompson on the 5th of July 1870, a balance of $187 remaining due on the note of 1866 for $500 was included. If the plaintiff remained in actual ignorance of the conveyance to Mrs. Thompson until 1875, he was not estopped from asserting his claim against the land by his acceptance of the bond.

Judgment reversed, and venire facias de novo awarded.