Allen v. Antisdale

38 Mich. 229, 1878 Mich. LEXIS 39

• Court: Michigan Supreme Court
• Decided: January 22, 1878
• Status: Published

Opinion

Cooley, J.

This is a bill in aid of an execution issued on a judgment against James S. Antisdale, and levied upon real estate, the title to which stands in the name of Hannah W. Antisdale, the wife of the judgment debtor. The lands which the bill seeks to subject to the execution formerly belonged to James S. Antisdale, and with the exception of one parcel, were conveyed by him directly to his wife. The one parcel referred to came to her indirectly by the conveyance of a third person, to whom it had been transferred, and who had failed to pay for it. The debt on which the judgment was rendered was a partnership debt of the firm of Antisdale & Levacrid, of which the husband was a member, and accrued previous to the conveyances to the wife. The evidence leads to the conclusion that this firm was in good credit until after the conveyances, and whether solvent or not, was supposed by its members to be so.. Before this suit was commenced, the firm was in bankruptcy.

The wife claims the lands by purchase. It is not claimed by her that any money or other thing of value-was paid by her at the time the conveyances were made,, and complainant insists that none ever was. To prove-this he put her upon the stand, and she testified that, many years ago she received moneys from her father’s estate, and small amounts from other sources, which were her own property, and which she loaned to her husband; and that it was in payment of these loans that the lands were deeded to her. If her testimony is reliable, she makes out a sufficient consideration; but it is claimed to be untrustworthy for the reason that, as she shows, she took no written evidence of the loans when she made them, and did not even make any written memorandum thereof. This, it is urged, is satisfactory evidence that loans were not intended or contemplated, but that the moneys were delivered to the husband as gifts.

The circumstance that no written evidence of the loans was taken or made is one of some importance as bearing upon her credibility, but unless there is other evidence tending to discredit her statement, it would not justify the rejection of testimony not intrinsically improbable,. and apparently given with candor. It would at most be only a suspicious circumstance, and open to explanation.

It is not intrinsically improbable that a wife would loan money to her husband without taking his obligations therefor, or that she should allow the debt to remain unpaid for many years without written evidence of it. The confidence inspired by the relation might induce this, and the loan would not be likely to be called in so long as it seemed best for the general interest of the family that the husband should be allowed to make use of the money. See Sexton v. Wheaton, 8 Wheaton, 229, 239. And we find nothing in Mrs. Antisdale’s testimony that impresses us with any want of fairness or integrity.

As the case stands mainly on the testimony of this defendant, which is not shaken by that of other witnesses, and as her husband had a right to pay her in this way, we think the court was right in dismissing the bill, and the decree must be affirmed with costs.

The other Justices concurred.