In the absence of a fraud, a husband who is embarrassed may
convey his curtesy in the real estate of his wife to trustees for
her benefit and for the benefit of their children when a
consideration is received for it which a Court of Equity may fairly
take to be a valuable one.
Page 111 U. S. 723
When a deed in trust recites a nominal consideration as the sum
paid by the trustee, it is no contradiction to show that a valuable
consideration passed to the grantor from the
cestui que
trust.
A statute enacting that the property of a married woman shall
not be liable for the debts of her husband exempts his estate in
the curtesy in her real estate from being taken for his debts
contracted after the passage of the act.
Under the recording act which took effect in the District of
Columbia. April 9, 1878, an unrecorded conveyance is subject to the
lien of a judgment recovered subsequent to it, although execution
was not issued and levied till after the record, unless it appears
that the judgment debtor had notice of its existence before issue
and levy of execution.
This was a suit in equity brought by a judgment creditor to set
aside a conveyance of real estate in Washington belonging to his
wife to trustees for the benefit of the wife and their children.
The facts which made the issues appear in the opinion of the Court.
On the 31st of March, 1884, the Court announced a decision in
appellant's favor. Appellee's counsel then filed a petition for a
rehearing as to the effect of the recording law of April 29, 1878,
upon the judgment and the deed. This act is set out in the opinion.
The deed in question was executed and delivered before recovery of
the judgment. It was recorded after the recovery, but before issue
and levy of execution. The judgment creditor had no knowledge of
the deed so far as shown by the record.
MR. JUSTICE MILLER delivered the opinion of the Court.
This is a bill in chancery brought by the bank against John
Hitz, Jane C. Hitz, his wife, and Metzerott and Cross, trustees, to
declare void a deed so far as it affects rights of the bank, made
by Hitz and wife to Metzerott and Cross, as trustees, for the
benefit of the wife. The deed was made December 9, 1878, and filed
for record in the proper office, May 13, 1879. The property
conveyed, which was real estate in the City of Washington, came to
Mrs. Hitz by inheritance from her father and by the birth of
children before the Married Woman's Act of Congress of April
10,
Page 111 U. S. 724
1869, 16 Stat. 45. Hitz had become entitled to a life estate in
it as tenant by the curtesy. It is this right which is the subject
of the present controversy. The bank, as creditor of Hitz, obtained
a judgment against him on the 28th day of April, 1879, for the sum
of $10,000, with interest and costs, and on the 5th day of June, a
writ of execution was issued on said judgment and returned
nulla bona the same day. On the next day, plaintiff caused
another execution to be issued on the same judgment, and levied by
the marshal on the interest of the said John Hitz in the property
described in the trust deed of Hitz and wife to Metzerott and
Cross.
We will notice the grounds on which the validity of the deed is
assailed, in their order:
1. It is said that the deed was never delivered to the
trustees.
But the testimony of Mr. Metzerott, complainant's witness, shows
clearly that he did receive the deed and kept it for an indefinite
length of time, and then placed it in a box which he bought for
that purpose and handed it to Mrs. Hitz, that she might deposit the
box with this and other valuable papers in the Bank of the
Metropolis. This was done.
It is also objected that it was delivered to Metzerott as an
escrow, to be recorded, as he expresses it, only when Hitz should
have made some adjustment of his indebtedness to the
German-American Bank, which has never been done. It is quite
obvious, and perhaps natural, that Metzerott should confound his
holding the deed as an escrow and withholding it from record as
meaning the same thing, and it is very clear from all his testimony
and that of Mr. Cross, the other trustee, that only the latter was
in question.
Both of these gentlemen had been consulted before the deed was
made and had consented to act as trustees in it. As soon as the
deed was executed and acknowledged, it was placed in the hands of
Metzerott, who received and held it for some time and then gave it
to the party chiefly interested for safekeeping. Leaving out the
testimony of Mrs. Hitz, of Hitz, and their sworn answers, in which
they both deny that they
Page 111 U. S. 725
had ever heard of the deed being delivered as an escrow, it is
plain that it was executed, delivered, and the trusteeship
accepted, and the deed thus became a valid instrument as between
the parties to it.
2. As regards the understanding that it was not to be recorded
until Hitz's debt to the bank was adjusted, it rests upon Mr.
Metzerott's testimony alone. Mrs. Hitz swears that though she was
advised by Mr. Cox, her lawyer, who drew up the deed, that it was
better not to record it at once and that Mr. Metzerott expressed
the same views to her, she did not adopt them, and made no promise
to withhold it from record. Hitz, whose interest in the property
was the thing conveyed, says that he had no such understanding, and
Cross, the other trustee, knows nothing of it except what was told
him by Metzerott. There can be no reason favorable to the purpose
of the deed, the interests of Mrs. Hitz, the
cestui que
trust, why it should be withheld from record or why she should
have made such a promise.
3. This brings us to the third objection to the deed, namely
that it was voluntary, was without consideration, and designed to
defraud creditors. It appears that up to a very short time before
this deed was made, Mr. Hitz had the entire management of his
wife's affairs, and she had trusted him unreservedly. It was a
complete surprise to her when she learned that with the failure of
the bank, of which her husband was president and principal manager,
her own fortune, inherited from her father, had also disappeared.
The evidence leaves no doubt that she at once took the management
of her affairs out of his hands, not even permitting him to receive
or collect for her the rents of what remained, of which the
property now in suit was the main part. It appears that to save
himself from prosecution by the bank or for other reasons, he
desired to convey to the bank some real estate, the title of which
was in his own name, though it had been purchased partly by her
money. He wished her to join him in conveyance of this property to
Keyser, the receiver, who had been appointed to close up the
Page 111 U. S. 726
affairs of the bank. He had also conveyed to Hatch and wife, for
some purpose of his own, a valuable business house on Pennsylvania
Avenue which was part of her inheritance, and then had procured
these persons to mortgage it to the bank of which he was president
to secure a large debt due by him to the bank. But it had been
discovered that Mrs. Hitz had never signed or otherwise executed
any conveyance of this lot. Mr. Hitz was in an embarrassing
condition with regard to this matter. It was after some resistance
on her part to making these matters straight for Mr. Hitz that it
was agreed, if he would make the deed of trust by which all the
estate in the lots mentioned in it, including his interest,
whatever it might be, and hers also, should be secured to Mrs. Hitz
and her children by the intervention of trustees, she would make
good the title of the lot on Pennsylvania Avenue which he had
pledged to the bank, and would join him also in the deed to Keyser,
the receiver, of what was asserted to be his property.
The trust deed was therefore made on a valuable consideration.
The value of the avenue property alone conveyed by Mrs. Hitz is
sworn to be $18,000. What her interest in the other property was
worth is not proved, and could not easily be ascertained. No
estimate of the value of Hitz's interest in the lots conveyed to
the trustees is shown. When, sitting as a court of equity, we see
this man trying to rectify the wrong done his wife, we are not
required to scan closely the value of what she gave at the moment
for his relinquishment of his marital rights in her remaining
property.
The case is wholly free from fraud. Mrs. Hitz had the same right
to buy his curtesy in her real estate, to have it barred by a
proper conveyance, as anyone else had or could have had. Her equity
was as good as that of any other creditor, and he could secure her
as well as he could the bank. As the present complainant had no
lien on the property, the joint right of husband and wife to sell
it for value was undoubted, and the right to sell to her by the
intervention of trustees is equally clear. The property she gave in
exchange for his interest in her lots did not go to him to be
secretly used in fraud of his creditors, but was conveyed directly
to creditors in satisfaction
Page 111 U. S. 727
of his debts. The conveyance was not without consideration, and
it was without fraud.
We do not concur in the view of the learned court below that
because the sum of one dollar is mentioned in this trust deed as
the consideration, the true consideration cannot be shown by parol
evidence. It is always understood that the one dollar in such
connection is merely nominal, and is never actually paid. In this
case, it means no more than that nothing was paid by the trustees,
who took no beneficial interest.
It neither contradicts nor varies this statement to show that a
valuable consideration passed from Mrs. Hitz to her husband for his
conveyance of his life estate to the trustees for her benefit. The
question is unimportant in this case, because the bill of complaint
calls upon the defendants to show under oath the true consideration
of the deed in the following language:
"That defendants by their answers under oath may disclose what
was the real and true consideration and purpose for the making of
said deed."
That the answer thus called for, showing a valuable and
meritorious consideration, which answer is uncontradicted by any
evidence whatever and is well supported on cross-examination of
defendants in their depositions, can be disregarded as inadmissible
because unfavorable to the party who demanded it, would be to
permit the party to trifle with the powers of the court at its
pleasure.
4. There remains to be considered the effect to be given to the
fact that complainant recovered its judgment against Hitz before
this deed was recorded, but issued no execution until after it had
been filed according to law with the proper officer for record. On
this question, a petition for a rehearing points out a mistake in
the opinion of the court as originally delivered in regard to the
date of the act repealing the recording statutes as found in
sections 446 and 447 of the Revised Statutes, whereby we were
misled to believe that the sections mentioned governed
Page 111 U. S. 728
the case. It is apparent, however, that the new statute was
approved April 29, 1878, and not 1879, and its provision as to the
effect of recording, or failing to record, the instrument in
question, which was executed in December, 1878, must be governed by
that act. It is in the following language:
"That all deeds, deeds of trust, mortgages, conveyances,
covenants, agreements, decrees, instruments in writing, which by
law are entitled to be recorded in the office of the recorder of
deeds, shall take effect and be valid, as to creditors and
subsequent purchasers for valuable consideration without notice,
from the time such deed, deed of trust, mortgage, conveyance,
covenant, agreement, or instrument in writing shall, after having
been acknowledged, proved, or certified, as the case may be, be
delivered to the recorder of deeds for record, and from that time
only."
20 Stat. 34, 40.
As the deed of trust in question was not recorded until several
weeks after the judgment of the bank against Hitz was recovered,
and as there is no evidence that the bank ever had actual notice of
its existence until after execution was issued and levied on Hitz's
interest in the property, we entertain no doubt but that the
conveyance would be ineffectual against the bank, or any purchaser
at the sale under that judgment.
But as this deed interposed no obstruction to the sale, and none
to the title of a purchaser, it is not easy to see on what ground
the interposition of a court of equity is sought, since the bank
having levied on Hitz's interest in the property, which was a legal
estate if it was anything, it could be sold under that execution,
if liable to sale for his debts, without the aid of a court of
equity, the whole proceeding being one at law, and its effect, when
completed, a mere question of statutory construction.
It may be, however, that the bank had a right to remove the
apparent cloud which this deed would throw upon the title of the
purchaser at the sale, and this demands of us an examination of the
argument advanced at the hearing, that this interest of Hitz in the
property of his wife was not liable to sale for
Page 111 U. S. 729
his debts, by reason of section 727 of the Revised Statutes for
the District of Columbia, which is as follows:
"In the district, the right of any married woman to any
property, personal or real, belonging to her at the time of
marriage, or acquired during marriage in any other way than by gift
or conveyance from her husband, shall be as absolute as if she were
unmarried, and shall not be subject to the disposal of her husband,
nor be liable for his debts."
There can be no question that this statute exempts the wife's
property from the control of her husband, and liability for his
debts as to all property coming to her from any source but him,
after its enactment.
This was on the 19th of April, 1869, and it is insisted that the
right of Hitz, as tenant by the curtesy, had then become vested,
because the inheritance had then come to Mrs. Hitz, the marriage
had taken place, and issue had been born of it.
It is argued with much force that Congress did not intend by
this statute to destroy an existing vested right of the husband
under such circumstances, and that if it did so intend it had not
the power to do so.
We should be slow, however, to impute any such purpose to
Congress, unless the language in which its statutes are framed
demands it. The question does not arise in the case before us.
Three distinct departures from the old law are announced in this
new statute in regard to the husband's relation to his wife's
property, both real and personal:
1. That her right to it shall be as absolute as if she were
unmarried.
2. That it shall not be subject to the disposal of her
husband.
3. That it shall not be liable for his debts.
In regard to the first of these, it may be conceded that where
at the time of the enactment of this law, the husband had acquired
a vested right in the property, Congress did not mean to destroy
it, and that to that extent her right would not be as absolute as
if she were unmarried.
Page 111 U. S. 730
It would result from this, that, as between Mrs. Hitz and her
husband, his right by the curtesy would remain.
It is not necessary to decide in this case whether he could, in
view of the second clause of the statute, transfer that right to
another by sale or otherwise. If he retained the right to its
possession and its use so long as he lived, even after her death,
it seems reasonable that a statute which limited his power over it
to that use and possession would not be liable to the charge of
destroying a vested right.
In regard to the third clause, that it shall not be liable for
his debts, the argument is still stronger, for that divests him of
no right and does him no injury. What effect it might have as
against an existing creditor at the time the law was passed, as
impairing the obligation of a contract, we need not decide, for it
does not appear that there are now any such creditors, and it
appears affirmatively that the debt of the bank in this case was
created nearly ten years after Congress declared that her property
should not be liable for his debts.
In regard to this clause of the statute and to its operation in
this case, it is neither retrospective nor does it impair the
obligation of a contract.
It is urged, however, that the plain purpose of the statute was
to deprive the husband of all legal interest in the property of the
wife, and it must therefore be construed to relate only to property
acquired after the passage of the law. For this purpose, however,
the first clause of the declaration, namely, that her right to such
property "shall be as absolute as if she were unmarried," is amply
sufficient. And if that was all that was intended the two
subsequent clauses were unnecessary, and tended to weaken that
declaration. These latter clauses, however, and especially the
last, may be applied to cases where the other would not, namely, to
cases of marriage already in existence, and where the husband's
marital rights had attached. In this class of cases, the enactment
that her property should not be liable for his debts, because he
held some right of present control, was in accord with the spirit
of the main principle of the statute, and, as applied to debts
thereafter created, it did no one injustice.
Page 111 U. S. 731
It is also argued that the property exempted from his debts by
the act is her property, and that the life estate of the husband is
not her property.
But this is a very narrow view, and is not justified by any fair
grammatical construction of the language employed.
It is the right of a married woman to any property, personal or
real, belonging to her at the time of marriage or acquired during
marriage which shall be as absolute as if she were unmarried, and
shall not be subject to the disposal of her husband. It was the
purpose of the statute to abolish this tenancy by the curtesy, or
any other interest of the husband, in all her property and to place
her in regard to it in the condition of a
feme sole. And
it was this same property, and not part of it, no separate interest
or estate in it, which was exempted from liability for his debts.
It would be a queer construction of the statute, looking at its
manifest purpose, to hold that it meant, though her property shall
never come under his control and he shall acquire no interest in it
and it shall never be liable for his doubts, the use and
possession, the rents and profits of it, may be made liable to his
debts as long as he lives. We are of opinion that the statute
intended to exempt all property which came to the wife by and other
mode than through the husband from liability to seizure for his
debts, without regard to the nature of the interest which the
husband may have in it or the time when it accrued, and that in
regard to such debts created after the passage of the law no
principle of law or morals is violated by the enactment. On the
contrary, if we concede, as in the present case, that the husband
had acquired a tenancy by the curtesy in her property before such
enactment, it is eminently wise and just that no other person
should afterwards acquire such an interest in it as to disturb the
joint possession of it and turn the family resulting from the
marriage out that it may go to pay his debts.
The authorities cited by counsel for appellee rather sustain,
and certainly do not contradict, this view of the matter.
In the case of
Rose v. Sanderson, 38 Ill. 247, while
the court holds that a statute very much like the act of Congress
relied on here did not exempt from sale for the husband's
Page 111 U. S. 732
debt his life interest in her real estate which had become
vested before the passage of the act, it is apparent from the
record that the debt for which the writ of attachment was levied on
that interest existed when the statute of exemption was passed. The
case states explicitly that the act went into effect April 24,
1861, and the attachment was levied May 10, 1861, and the husband's
right, either by the curtesy or for the wife's life, had vested
long before. It might therefore have been held to impair the
obligation of the plaintiff's contract if the act had been so
construed as to exempt that interest from liability to sale for
that debt.
In the case of
Stehman v. Huber, 21 Penn.St. 260, it
was simply held that where, on a partition of an estate in which
the wife was a part owner, the husband advanced a considerable sum
as owelty in her behalf, he thereby became interested in the
property allotted to her and conveyed to her and to him jointly,
and that the husband, by executing a conveyance of this interest to
a third person, who conveyed it to the wife, could not thereby
defeat the existing creditor's right to appropriate that interest
to the payment of his debts.
In the case of
White v. Hildreth, 32 Vt. 265, on the
other hand, there came before the Supreme Court of Vermont, for
construction, a statute in regard to the debts of the husband very
like the act of Congress. It enacted that
"The rents, issues, and profits of the real estate of any
married woman, and the interest of her husband in her right in any
real estate which belonged to her before marriage, or which she may
have acquired by gift, grant, devise, or inheritance during
coverture, shall, during coverture, be exempt from attachment or
levy of execution for the sole debts of her husband, . . . provided
this act shall not affect any attachment or levy of execution
already made."
Compiles Statutes of Vermont of 1850, p. 403, ยง 15.
In the case mentioned, the husband had built upon and improved
land of the wife, after which she rented it to her son, in whose
hands the rent was attached by trustee process for the debt of the
husband. But the court said:
"The legal title to the land, with the supervening improvements
and building,
Page 111 U. S. 733
is still in the wife. It accrued during coverture. The rent
reserved in the lease to her son, is the rent of the land she owns.
The statute expressly exempts such rent from the hands of his
creditors. This provision of the statute seems to answer what
otherwise must have been a well founded suggestion,
viz.,
that though this money is payable to the wife of the defendant,
still it is not the rent of the freehold which the husband held by
virtue of the coverture and the birth of issue capable of
inheriting, and is, in contemplation of law, entirely the
husband's, without invoking the wife as the meritorious cause."
Here, the court holds distinctly that this statute, which does
not profess to abolish the tenancy by the curtesy, is still an
answer to an attempt to subject the rents and profits to his debts,
because it declares that the property shall be exempt from levy for
his debts.
In Oregon, the constitution of the state declared that
"The property and pecuniary right of every married woman at the
time of the marriage, or afterwards acquired by gift, devise, or
inheritance, shall not be subject to the debts or contracts of the
husband."
In the case of
Rugh v. Ottenheimer, 6 Or. 231, it was
held that this provision applied to marriages and existing and
property rights of the husband acquired before the constitution was
adopted, and that such property could not be subjected to the
husband's debt, though he had wrongfully taken the title in his own
name.
For these reasons, we are of opinion that the property levied on
by the execution of the bank against Hitz is not subject to sale
for his debt, and that the decree of the supreme court must be
reversed and the case remanded to that court with directions to
dismiss the bill.
It is so ordered.