Thomas v. Butler , 16 Pa. Super. 268 ( 1901 )

Opinion by

Rice, P. J.,

This was a sheriff’s interpleader issue between Maiy Thomas and an execution creditor of her husband. Her allegation was that she obtained title to a considerable portion of the property levied upon from her husband, he having transferred the same to her in discharge of a bona fide indebtedness due from him to her. He was called as the first witness in her behalf, and testified fully and in detail as to the transfer of the title to her and as to the consideration therefor. Upon cross-examination it was proposed to ask him whether he had not made certain declarations to third parties, naming them, at or about the time of the alleged transfer, concerning his indebtedness and the ownership of this property. An affirmative answer to these questions would have tended to contradict the testimony he had given in chief, and a negative answer would have opened the door to contradiction by the testimony of other witnesses. Grant that his wife’s title to the goods could not be impeached by his subsequent declarations in her absence, it was clearly competent to impeach, in any legitimate mode, the credibility of the witness by whose testimony she sought to prove her title. One of the most common modes of impeaching the credit of a witness is by the introduction of proof that he has made statements out of court, as to matters relevant to the issue, contrary to what he has testified at the trial. We are of opinion, therefore, that there was error in overruling the .offer embraced in the first assignment of error.

Before the credit of a witness, not being a party to the issue, may be impeached in this mode, it is generally held necessary, in the case of verbal statements, first to ask him as to the time, place, and person involved in the contradiction: 1 Greenl. on Ev. (15th ed.) sec. 462. But the offer embraced in the second assignment was not objected to on that ground, and could not have been, because, as we have shown in the discussion of the first assignment, the defendants attempted, but were not permitted, to comply strictly with the rule. Such being the case, we think there was error in rejecting the offer. The ruling in Miller v. Baker, 160 Pa. 172, at p. 179, is directly in point and renders further discussion of the assignment unnecessary.

The judgment upon which the execution issued was entered on a note with confession of judgment given by the husband of Marjr Thomas, the plaintiff in this issue, to Thomas Butler for borrowed money. It was given a year and a half after the date of the bill of sale of the goods in question from D. R. Thomas to his wife, and Butler knew of the bill of sale at the time he made the loan. This being so, the court was warranted in calling the jury’s attention to the legal principle that a transfer of personal property void as to existing creditors is not necessarily void as to subsequent creditors; it is fraudulent only as to those it was intended to defraud. "Where there has been an actual, not a mere pretended, transfer by sale or gift from husband to wife, and there is no evidence from which an intent to defraud future creditors can be inferred, a subsequent creditor, having notice of the transfer, cannot, in general, impeach it upon the ground that it was fraudulent and void as to existing creditors. But in the present case the defendants, one of whom was the surety of D. R. Thomas on the note, introduced evidence to the effect that in the negotiations for the loan Thomas and his wife represented that the bill of sale was concocted for the purpose merely of defrauding certain creditors, and, to use their language as recited by the witness, “was no good.” Whether or not they made these representations, and whether or not they meant that, notwithstanding the sham bill of sale, the whole beneficial ownership of the goods was still in the husband, and whether or not Thomas Butler made the loan, and Burdine Butler became surety, upon the faith of them, were questions of fact for the jury. But if the jury decided all these questions in the affirmative, it would be inequitable, to say the least, for the plaintiff to set up the bill of sale as against these defendants. Similar representations as to the ownership of real estate were held to estop the fraudulent grantee from asserting Jfis title against a creditor of the grantor who had been induced thereby to part with his money: Mowry’s Appeal, 94 Pa. 376. It is true Burdine Butler testified that he did not consider the bill of sale, which was left with him, as any additional security. Of course he would not. The point made by the defendants is, not that they relied on the deposit of the bill of sale as collateral security, but that they relied on the representations that it was “ no good,” in effect, a mere sham. The distinction between this ease and Paul v. Kunz, 188 Pa. 504, is manifest. There it was sought to estop a married woman by her silence as to declarations made by her husband in her presence. Here the positive declarations of the married woman herself are shown.

The general rule (if it may now be said to be the rule and not the exception) that the doctrine of estoppel does not apply to married women, “ rests upon the fact that a married woman cannot contract. It follows logically that what she cannot pass by contract she may not pass by estoppel. But where the law clothes her with the power to contract, to the extent of that power she is bound precisely as other persons are bound. The law gives her the right to dispose of her personal estate with the assent of her husband. In doing so she has no more right to injure and mislead others than if she were sui juris: ” Powell’s Appeal, 98 Pa. 403 (1881). “A married woman should be held to the observance of that good faith in her dealings with the world to which others are bound; her protection is for the prevention of fraud; she should not thereby be enabled with impunity to defraud others : ” Grim’s Appeal, 105 Pa. 375 (1884). Indeed, in the very case relied on by the appellee’s counsel, Paul v. Kunz, supra, the court said that it might be conceded, “ that if her own claim of indebtedness against her husband had been directly in question, and she had denied any such indebtedness, she would have been bound by her denial.” Granting, even, that the evidence was not sufficient to warrant the submission of the question of estoppel to the jury, or, if sufficient, that the omission to submit the question to them in the absence of special request is not assignable for error, we think the learned judge fell into error in overlooking this evidence when he made the comment which is the subject of the sixth assignment. If Burdine Butler was to be believed, the testimony of the plaintiff and her husband was very materially contradicted by their own statements out of court, made at a time when they were under the highest obligation to speak the truth.

We need not further discuss the assignments in detail. We have sufficiently indicated the reasons which constrain us to send the case back for a retrial.

The judgment is reversed and the venire facias de novo awarded.