Wingerd v. Fallon , 95 Pa. 184 ( 1880 )

Mr. Justice Paxson

delivered the opinion of the court,

This was a feigned issue to test the validity of a judgment of $10,000, confessed by Adam B. Wingerd in favor of John Stewart, Esq., as trustee for Virginia O. Wingerd, wife of said Adam B. Wingerd, and the defendant in the feigned issue. The jury found for the plaintiffs upon all the issues, with this special finding, however, as to the first: “ That the said A. B. Wingerd was indebted to the said Virginia C. Wingerd in the sum of $7700, at the time of the giving of the said judgment.’’

This indebtedness was made up in the main of notes which A. B. Wingerd had given his wife’s father for borrowed money, and which after his death had been assigned to Mrs. Wingerd by his administrator on account of her distributive share of her father’s estate. That the possession of these notes thus acquired constituted Mrs. Wingerd a creditor of her husband to the amount due thereon is not disputed. There was, however, a note for $2300 which was disputed — at least the right of Mrs. Wingerd to include it in the judgment was denied, and forms the subject of the first three assignments of error. There was some question whether this note was an advancement made by Mrs. Wingerd’s father, or a debt due by her husband to his estate. It was certainly one or the other, and in either event it reduced Mrs. Wingerd’s share of her father’s estate by precisely that amount. Although not formally assigned to her it is held against her share of the estate, and will ultimately be deducted therefrom. She would then be entitled to an assignment. In the meantime she is practically a surety to the estate for the amount. There is no good reason why she may not take indemnity from her husband. That she may not have a present cause of action against him is not to the point. She has a just claim which, if the husband chooses to recognise, no creditor has a right to gainsay. It has been held no longer ago than the present term, that it was not a fraud upon creditors for a husband to confess a judgment in favor of his wife for a claim old enough to be barred by the Statute of Limitations, if it were applicable. If he does not choose to set up the bar of the statute to defeat a just claim the creditor cannot do so for him. The defendant’s second point should have been affirmed without qualification. This ruling also sustains the second, third and fourth assignments.

The fifth assignment alleges that the court erred in refusing to affirm the defendant’s eighth point. Said point called upon the court to say to the jury that there was no evidence to sustain the question of fraud raised by the second and third issues. This point should have been affirmed. There was not sufficient evidence of fraud to submit to the jury. There was not even a scintilla. There was nothing beyond an effort on the part of Mrs. Wingerd’s trustee to collect the money due from her husband. .If it was lawful for him to confess the judgment, it was not unlawful for the trustee to collect it.

The. sixth and last assignment is also sustained. The jury were allowed to infer fraud where none existed.

Judgment reversed.