Kirkpatrick v. Finney & Byrnes

1 Mann. Unrep. Cas. 202

• Court: Supreme Court of Louisiana
• Decided: July 1, 1880
• Docket: No. 6620
• Status: Published

Opinions

Egan, J.

Plaintiff, a married -woman claiming to be separated in property by judgment, injoins the seizure under fieri facias, issued upon a judgment in favor of Finney & Byrnes v. her husband, of a house and lot in New Orleans upon the ground that it is her separate or paraphernal property.

The defendant creditors deny the existence of any valid judgment of separation, and of any title in plaintiff to the property seized — aver, with elaboration and many particular amounts and allegations, that the pretended judgment of plaintiff v. her husband was obtained without legal grounds or evidence, and is without legal effect; that it was obtained the better to enable the husband to avoid the just pursuit of his creditors ; that the property seized was purchased by the husband with his own funds, but in his wife’s name with the same purpose ; and that the pretended title set up by the wife is simulated and fraudulent.

It appears from the evidence that the husband, O’Brien, failed in business, as a merchant in this city, to a large amount. That Finney & Byrnes were among his creditors, and subsequently obtained' the judgment sought to be enforced in the proceeding injoined. That O’Brien was, soon after his failure, elected to a lucrative office, that of Clerk of the Sixth District Court of Orleans, the revenues of which are variously estimated, but are shewn to be worth several thousands of dollars per annum; that within a few weeks after his election, he married the plaintiff, a young lady without means or property other than, perhaps, the furniture of her bed-room.

The judgment of separation soon followed and then the purchase of the house and lot in question for the price of eight thousand dollars, one-third cash and the balance in one and two equal annual installments, and the title was taken in the name of the wife, plaintiff.

The cash payment was made with money borrowed on a note executed in the name of the wife with the authorization of the husband, which is still unpaid.

The negotiations both for this loan and for the purchase of the property were conducted by the husband. The vendor testifies that he did not know, and never saw Mrs. O’Brien; and the broker to whom he referred O’Brien to fix the terms and make the sale swears that he conferred and dealt with the latter alone, although O’Brien told him the purchase was for his wife, and the title taken in her name, according to O’Brien’s directions. Subsequent to the sale of the property, which is occupied as a residence by O’Brien and his wife, the vendor, being in want of money, went to the office of O’Brien, and proposed to him to discount one of the notes given for the purchase price in advance of its maturity. O’Brien did so, and paid the money and the vendor promised him that if he should, at any time, desire to discount the other purchase price note, he would give him, O’Brien, the preference.

Mrs. O’Brien was not present, nor mentioned in this transaction. She is shewn to have been without means, or occupation by which to acquire means, to make the purchase independent of her husband, and was, besides, in health too delicate to have engaged in any occupation, or even to visit and confer with the attorneys employed to prosecute this case.

This also was attended to by the husband.

Her want of means is made the more apparent by the fact that the money to make even the cash payment was borrowed, and that the note given for this loan was repeatedly extended and was still unpaid at the time of the trial below.

If this were a real transaction on her part, and it should be claimed that the discounting of the time note was with her funds and for her benefit', of which there is not a particle of evidence, it is, to say the least, singular that she should have left this note unpaid, and anticipated the payment of the note not due upon the terms stated by the witness, i.e., a discount of the interest only.

In point of fact, tlie evidence satisfies us that she was without means or any basis of credit to make either the loan, the purchase, or the discount; and that the husband, who held a lucrative office, alone had the means or credit to do so.

It is, however, urged that the fees or salary of office of the husband was exempt from seizure by his creditors, who were, therefore, not injured and could not complain if he thought proper to give them to his wife, and thus enable her to make the purchase in question, and we are urged by ingenious counsel to infer that he did so.

It is sufficient answer to this argument to say that whatever he might have done, there is not a scintilla of evidence in the record to shew that O’Brien ever made or attempted to make any such gift of money, or of the means by which money could be realized, either by manual delivery or otherwise.

In response to the direct charge of simulation and fraud, and in order to avoid the effects of the seizure complained of, and establish her contested title, it was the interest and duty of the plaintiff to have shewn this state of facts, had it existed.

It was not shewn, and we cannot infer it. A most lengthy and elaborate power of attorney is found in the record from Mrs. O’Brien to her husband, by which she surrenders to him all individuality, and clothes him with almost every conceivable power to act for her in almost any conceivable case; this only strengthens the conclusion that she is in all this a mere puppet, or person interposed. It is certainly a most extraordinary document, and will be considered as a preparation to enable the husband to act for his own purposes in her name.

Judgment amended so as to give the defendants ‡300 special damages as attorney’s fee on dissolution of the injunction.