Page images
PDF
EPUB

PEOPLE U. LYNCH.

Vol. III.]

[No. 3.

premises lying in the assessment district from the burden which it imposed upon the other premises in that district. As subsequently attempted to be validated by the Act of March 30, 1874, this omission and exemption was still preserved and retained.

The "thing wanting," both before and after the passage of that act, was uniformity, and for this reason the assessment was not aided by the legislative act referred to.

Had the act been general and prospective, instead of special and retrospective; had it undertaken to provide for assessments of this character to be levied thereafter, not upon a prescribed basis of uniformity, — an assessment levied in conformity therewith would have been void. It is not in the legislative authority to dispense with the required uniformity, whether by prospective acts providing for assessment to be levied in the future, or retrospective acts seeking to impart a validity to assessments already levied.

For these reasons I concur in the judgment, upon the ground first discussed by Mr. Justice McKinstry.

RHODES, J., concurring. I concur in the judgment for the reasons expressed by the chief justice, but I am unable to concur with Mr. Justice McKinstry in the conclusions announced upon the second and third grounds discussed by him. Some of the propositions laid down by him might, perhaps, with propriety, have been accepted and applied at the commencement of the judicial history of the state, as sound rules and maxims in the construction of our Constitution, and others, perhaps, are deserving of a place in the instrument itself; but at an early day a different construction was adopted in respect to the power which the legislature might exercise over municipal corporations, and in respect to persons and property within their territorial limits, until now many and valuable interests are held which had their origin in, and are now dependent on such construction; and in my judgment that construction ought not to be changed except upon more cogent reasons than are presented in this case. I am not prepared at this time to enter upon a discussion of these important questions; but it is not improper to say that there are no reasons upon which it should be held that the power of the legislature over the matters of "assessment" within municipal corporations are limited, that will not equally apply in respect to the power of the legislature over the matters of borrowing money, contracting debts, or taxation for municipal purposes, mentioned in sec. 37, art. 4, of the Constitution. The grounds. upon which the authority is denied to the legislature to direct a particular assessment within a municipal corporation to be levied, would also prohibit the legislature from requiring that a particular debt should be contracted by the municipality, or a particular tax levied for municipal purposes. If a change in these important provisions is necessary or desirable, it should, in my opinion, be made in the organic law itself, and not by means of a change in its construction.

[blocks in formation]

1. Under the amendatory act of April 18, 1870 (67 Ohio L. 113), husband and wife are competent witnesses for and against each other, except as to communications made by one to the other, and acts done by one in the presence of the other during coverture, and not in the known presence of a third person.

2. And the act is applicable to cases pending and causes of action existing at the time of its passage, notwithstanding the provisions of the Act of February 19, 1866 (S. & S. 1), declaring the effect of appeals and amendments.

3. Evidence that a third person was present, and known to be present, at the time of making such communications, or doing such acts, is for the court and not for the jury, and, on error, will be presumed to have been given to the court, unless the contrary appears.

4. Where a motion is made to exclude the entire testimony of a witness, part only of which testimony is incompetent, without specifying any particular part of the testimony objected to, or disclosing the ground of objection, it is not error in the court to overrule the motion.

5. Under the Act of May 1, 1851 (S. & S. 389), as amended March 23, 1866 (S. & S. 391), the separate property of the wife is primarily liable, as between her and the husband, for the satisfaction of judgments recovered in actions brought against them upon causes existing against her at their marriage; and the husband, when compelled to pay any such judgment, becomes, in equity, a creditor of the wife to the amount paid, and entitled to charge the same upon her separate property, and for that purpose to set aside fraudulent conveyances thereof made in contemplation of marriage.

6. A creditor may avoid or set aside a fraudulent conveyance of his debtor's property for the satisfaction of his debt, without first exhausting the debtor's other property, or showing that the debtor has no other property liable to be taken.

ERROR to the superior court of Montgomery County.

Henry Westerman is the husband of Elizabeth Westerman, and John F. and Joseph O'Neal are her sons by a former husband. Shortly before her marriage to Westerman, which took place on the 16th day of September, 1867, and after she had contracted to marry him, Mrs. Westerman made a deed of gift to her said two sons of two tracts of real estate, of which she was seised in fee, and upon which part of the purchase money still remained due to her brother, from whom it had been purchased. Subsequently to the marriage, this balance of purchase money was collected by the brother from the husband, in an action brought by him against the husband and wife. The husband, thereupon, on the 23d day of January, 1869, brought his action against his wife and her two sons, the plaintiffs in error, charging that the land was subject to a lien for the purchase money so paid, and that the deed of gift to the sons was made secretly and fraudulently, and without his knowledge or consent, for the purpose of defrauding him of his marital rights, and praying that the deed might be set aside as fraudulent, and the land so conveyed be subjected to the payment of the purchase money so collected of him.

To the plaintiff's petition in this action, a demurrer filed by the de

WESTERMAN v. WESTERMAN.

Vol. III.]

[No. 3.

fendants was overruled by the court. The defendants then answered, denying that there was any lien upon the land for said purchase money, and denying the charge of fraud, alleging that the conveyance to the sons was made with the knowledge and consent of the husband.

The case was heard by the court upon this issue, and resulted in a finding by the court in favor of the plaintiff, and a decree for the sale of the land, in case the defendants should fail to refund the money so paid. A motion for a new trial on the ground, among other things, that the finding of the court was contrary to the law and the evidence, was overruled by the court, and the defendants took a bill of exceptions embodying all the evidence in the case.

The action was pending prior to the passage of the Act of April 18, 1870 (67 Ohio L. 113), relating to the testimony of husband and wife, and was tried after the taking effect of that act; and the bill of exceptions shows that on the trial of the case the plaintiff was examined in his own behalf as a witness, the defendants objecting to him as incompetent, and that he testified, among other things, to certain communications between himself and wife, and certain acts done by them in each other's presence; but whether these acts or communications were in the known presence of any other person or persons does not appear.

The bill of exceptions also shows that after the plaintiff had been examined, the defendants moved the court to exclude his entire testimony, but without discriminating as to any particular part or parts thereof, and that no special objection was made to that part of the testimony relating to the communications or acts aforesaid of the husband and wife.

From the record it also appears that the wife is possessed of some personal property in her own right, but the amount thereof, and whether it is exempt from execution, does not appear.

The grounds on which the plaintiffs in error seek to reverse the judgment are sufficiently stated in the opinion of the court.

William Craighead, for plaintiffs in error. I. Does the petition contain such allegations as will entitle the plaintiff not alone to a decree annulling the deed, but further, to a recovery against his wife, and an order on the defendants to refund the money he has paid, or that an order issue to sell the land and refund him this amount out of the proceeds of the land?

It seems to me that in order to sustain this legal proposition two others must first be established, to wit:

1. That a vendor's lien is assignable.

2. That a husband may assert it against his wife during the existence of the marriage.

I regard the first proposition as pretty well settled in Ohio, and cite the following authorities: Jackman v. Halleck, 1 Ohio, 318; McArthur v. Porter, 1 Ohio, 99; Tiernan v. Beam, 2 Ohio, 383; Brush v. Adams, 14 Ohio, 20; Horton v. Horton, 14 Ohio, 443; Taylor v. Foot's Adm'rs, Wright, 356; Schnebley & Lewis v. Regan, 7 Gill & Johns. 120; White & Tudor's Eq. Cases (3d ed.), 275, 368; Ex parte Lauring, 2 Rose's Cases, 791; 1 Ross on Leg. 634, 635.

If, then, as shown by the authorities above cited, the assignee of a promissory note for the payment of purchase money cannot assert

Vol. III.]

WESTERMAN v. WESTERMAN.

[No. 3.

this lien, much less can Westerman, who voluntarily placed himself by marriage in a position where the law makes him liable for the debt, which has become his debt by judgment against him, and who has paid only a lien and incumbrance on his own land, assert this lien against his wife and her grantees, or against her alone, if the deed was set aside for fraud.

But, for the sake of argument, let us admit that Westerman is a creditor of his wife to the extent claimed, and could be substituted to the vendor's lien, or, in other words, suppose the vendor himself had not been paid, and had filed this petition against these defendants, would it entitle him to the relief he prays as against these grantees?

A bill in equity to enforce a vendor's lien, or to set aside conveyances as fraudulent against creditors, must show affirmatively that the complainant has exhausted his remedy at law against the personal estate, or must aver such facts as show that the complainant cannot have a full, complete, and adequate remedy at law. This bill discloses the fact that Mrs. Westerman has a large amount of other valuable real and personal property. If he can subject this property, he can any she has. 1 White & Tudor's L. C. in Eq. 274; Pratt v. Van Wick, 6 Gill & Johns. 495; Hall v. McCubbin, 6 Gill & Johns. 107; Richardson v. Stillinger, 12 Gill & Johns. 478; Bottorf v. Connor, 1 Black. 287; Eyler v. Crubbs, 2 Md. Ch. 303; Nash Practice (last ed.), 353, No. 6; McArthur v. Porter, 1 Ohio, 99; Jackman v. Halleck, 1 Ohio, 318; Tiernan v. Beam, 2 Ohio, 383; Williams v. Roberts, 5 Ohio, 35; 1 Hill Ch. 466; 13 Ohio St. 263.

But another view, and one which I regard as fatal to the right of this plaintiff to recover, is, by law the husband is liable for the debts of his wife contracted while sole. If merged in judgment against him during coverture, the debt becomes his debt. Vanderhyden v. Mallory, 1 Comst. 452; Welden v. Welden, 7 Ohio St. 30; Palmer v. Wakefield, 43 E. C. L. 227; Burton v. Burton, 5 Harrington, 441; Tyler on Inf. & Cov. 331, 339; 2 Jones Eq. 205; 4 Dessau. 370; Warren v. Williams, 10 Cush. 79; Warren v. Williams, 6 Gray, 559; 2 B. Mon. 99.

The changes made by our statutes regulating the relation of husband and wife do not enable the wife in our state to hold and dispose of her property independent of her husband, and were intended by the legislature not to enlarge her liabilities to her husband, but to protect her rights; not to create for her new rights, but simply to take away her husband's control over such as she had. Smiley v. Smiley, Adm'r, 18 Ohio St. 543.

The provision of the Act of 1870 does not apply to an action pending between husband and wife, but enables either to be called, in actions pending between either and any third party, to prove such communication so made, or act so done. To hold that this statute, which is enacted for the purpose of indicating who shall be incompetent, makes husband and wife competent for or against each other, would be in effect to declare that language which plainly expresses itself as referring to one subject really was

intended to refer to another.

The court below held that the general rule of evidence is competency, and that the amendment of 1870 is a limitation of the rule. If this be true, I ask, where is the provision of law which changes the common law

Vol. III.]

WESTERMAN v. WESTERMAN.

[No. 4.

rule as to competency of husband and wife and authorizes them to testify for or against each other, to which this is the exception or limitation? For then it is the rule which permits such evidence, not this clause, which is said to be the limitation of the rule. To make the clause operate as a limitation, the capacity to so appear as witnesses must exist independently of the limitation. If it be a limitation, what does it limit? Not certainly their capacity so to testify for or against each other, because they are not so competent independent of the clause. If they are thus competent, then it is not the clause which makes them so; and the question comes back, are they competent? They are not at common law, and they are not made so by any other statute, hence they are not competent at all. To hold otherwise, is equivalent to saying that a statute to make them incompetent in one particular case makes them competent in all.

The law of 1870 does not apply to this cause, as it was an action pending long prior to the passage of the amendment. Constitution, art. 1, sec. 238; Code, 602; A. & G. W. R. R. v. Campbell, 4 Ohio St. 583; Calkins v. Ohio, 14 Ohio St. 222; Mitchell v. Eyster, 7 Ohio, 257; Hale v. Wetmore, 4 Ohio St. 600; Cochran v. Taylor, 13 Ohio St. 387.

Jordan & Linden, for defendant in error. We think the purchase money paid by defendant in error was a charge or lien upon the land.

Henry and Elizabeth were married September 16, 1867, after the passage of the Act of March 23, 1866, which limits to the wife's separate use and control all her property, real and personal.

We understand the effect of this statute to be to limit to her separate use and control all her property as effectually as it was done at common law, when words to that effect were used in a conveyance or devise to her. Bear v. Bear, 33 Penn. St. 525; Gliddin v. Taylor, 16 Ohio St. 518, 1st clause.

When property was so limited to her at common law and no trustee was appointed, the husband became trustee for her. Tyler on Inf. & Cov. 441; Story's Eq. sec. 1380; Clancy on Women, 265 et seq.; 2 Bright on Husb. & Wife, 214.

And we understand this to reserve to her all of her property and effects, so that none of it passes to him.

The common law gave him all the money, personal property in possession, choses in action when collected, and the use of her real estate during her life, when not limited to her sole and separate use, and made him liable for the antenuptial debts. The statute of 1866 denies him all this . property and effects. Whatever technical reason may have been assigned for this common law liability of the husband for the antenuptial debts of the wife, it undoubtedly was based on the corresponding benefit that accrued to him in getting her property and effects.

Our statute of 1866 (sec. 3) simply provides that the wife's property shall also be liable for any judgment rendered against her and her husband on an antenuptial debt.

The tendency of our statutes has been to treat the wife as a feme sole as to all her property rights and obligations.

Although our statute leaves the husband liable for the antenuptial debts of the wife while it denies to him her property, it does, in express

VOL. III.

10.

« PreviousContinue »