Beall v. Frank & Adler

Jones, J., delivered the' opinion of the Court. This is an appeal from an order of the Circuit Court for Prince George’s County dissolving an injunction and dismissing the bill which had,been filed in-that Court by the appellants to restrain the appellees and the sheriff of the county from proceeding with the execution of a judgment against certain property claimed by the appellants ; and upon which bill a preliminary injunction had been granted. The bill alleged that the appellants were carrying on a mercantile business at Glenn-dale, in Prince George’s County, as a firm, trading as Beall & Mahan ; that in the spring of 1899, “the plaintiff, EllaV. Beall, engaged in a retail dry goods and grocery store on her own ³³² account and enjoyed- good credit with a fair and increasing share of success up to about the 9th day of November, 1899, when she entered into articles of partnership with the other plaintiff, Florence G. Mahan, who became a one-half partner in said mercantile business;” that they were interrupted in the said business by a levy on their whole stock of merchandise by the Sheriff of Prince George’s County, “who seized and took possession thereof by virtue of a writ of fieri facias which had been issued from the Circuit Court for ” said county ■on a judgment recovered by the appellees, Frank & Adler, against Frank Beall at the January Term, 1896, for the sum of $843.78, interest and costs—the sheriff taking said stock as the property of Frank Beall, the defendant in the judgment; that said Frank Beall did not have any interest whatever, directly or indirectly in the property so seized and levied upon ■or any part thereof; that the said sheriff threatened to advertise and sell said stock of goods ; that the said Ella V. Beall ■carried on the said business from the spring of 1899 with capital which was her own individual money; that she took out license as required by law; that the other plaintiff also invested her own money as capital; that “their respective husbands had not one cent invested in the business;” and that “said .stock of goods so seized by the sheriff belongs exclusively to the plaintiffs and is not in any way liable for the debts of the said Frank Beall.” The bill then prays for an injunction against the defendants below, the appellees here.

The appellees, Frank & Adler, answered the bill. In their answer they aver they know nothing of the partnership alleged in the bill. They admit having the judgment against Frank Beall and that they ordered a fieri facias to be issued thereon which commanded the sheriff “to levy upon the lands and tenements, goods and chattels” of said Beall. They further aver that they know nothing of the plaintiff, Ella V. Beall being engaged in “mercantile business as alleged” in the bill; that Frank Beall has been in mercantile business for a number of years in Prince George’s County; that he was so engaged when he contracted the debt with the respondents for ³³³ which the execution referred to in the bill was issued and levied; that he “has had active charge and general management of the store at Glendale from the spring of 1899 to the date of said levy keeping himself in and about said store, selling goods therein, and receiving payment thereof, and if he was acting as agent of Ella V. Beall or Beall & Mahan” strict proof thereof is required; that said Frank Beall “professed to have failed in business when merchandising” in said county and made a deed of trust or assignment for the benefit of creditors; that the trustee named accepted the trust and docketed a case in the Circuit Court in which a large number of claims were filed against the said Beall but not including the claim of the respondents; that there was no inventory, nor lists of assets, accounts of sales nor reports made by the trustee because the assignment carried nothing of any consequence and nothing worth the effort of the trustee to possess himself of; “that the said Frank Beall kept to himself his position as merchant and has since” merchandised in said county “and has supplied the plaintiff Ella V. Beall with the money which started her in business at Glendale;” that “if the operations at said store have been carried on in her name to the time of the formation of her partnership with Florence G. Mahan” she purchased goods with money and property furnished her by the said Frank Beall and “the same has been carried in her name for the purpose of enabling the said Frank Beall to defraud his creditors and place said property or a. large part thereof in this and other ways beyond the reach of his creditors; that “a large part of the property, if not all, in said store at the time of the alleged levy by the sheriff, was in law the property of the said Frank Beall or if the property of the said Ella V. Beall that she acquired the same by gifts from .her husband or through money and property furnished her at sundry times by him;” and that if the plaintiff “Florence G. Mahan had any interest in said property at the time of said levy” strict proof thereof is required.

The respondents then “pray that the Court may return jurisdiction in the premises to ascertain whether the said Ella V. Beall or the said Flor ³³⁴ ence G. Mahan or both owned the property so levied upon and whether or not the said Ella V. Beall’s interest therein, if any, was not acquired by gift from her husband or through money or property furnished her by him, between the date of the contracting of the debt of the said Beall to these defendants and the date of said levy.” The sheriff answered admitting the levy, asking strict proof of the title of the .plaintiffs, describing what was done under the levy and praying that, as the defendants, Frank & Adler, assert in their answer that title to the goods levied upon is in Frank Beall, that the “parties may prosecute their interpleading to a final hearing.” It is thus seen that all parties invoke the jurisdiction of the Court to have determined the issues that are presented by the pleadings. The decision of these issues depends upon the evidence which has been adduced by the parties in support of their respective contentions. From a careful consideration of this evidence we have been led to a different conclusion from the one which was reached in the case by the learned Court that decided the case below. The basis of the contention upon the part of the plaintiffs is that the property in controversy was acquired by them by their own labor, skill and industry in the prosecution of a business upon their own account and independently of their husbands.

In examining this contention it will only be necessary in the view we take of the case to have reference to the evidence affecting the relation of Mrs. Ella V. Beall to the property in question. In a contest of this character between a wife and the husband’s creditors there is a presumption against the claim of the wife “ which she must overcome by affirmative proof.” Seitz v. Mitchell, 94 U. S. 580—3; Manning v. Carruthers, 83 Md. 1 . This results from the common law relation between husband and wife as to the property of the latter, and is indicated in the authorities just referred to, and those therein cited, as a wise policy of the law ; and to be adhered to, notwithstanding the modification of this common law relation by statutory provisions securing to the wife property possessed by her at the ³³⁵ time of marriage or acquired by her during coverture from sources independent of herself or earned by her through her own efforts in the prosecution of a business. This presumption operates to cast upon the wife the burden of proof in asserting a claim to property as against the creditors of the husband ; and it may be further conceded that in most cases in which such a claim is brought into litigation it comes into Court clouded with more or less suspicion.

While this is so, giving effect to this presumption does not mean that due credit is not to be given to evidence on the part of the wife in support of her claim. Such evidence, especially when given by the parties most interested, ought to be accepted with caution and only after “ close scrutiny :” but when it is delivered by witnesses whose credibility is not impeached and whose testimony is not contradicted it is not to be rejected except for such intrinsic infirmity or improbability, when compared with known or established facts, as will show that it is not entitled to credit. The law does not permit the wife to acquire property from the husband in prejudice of the rights of subsisting creditors. Still less will it tolerate the attempted withdrawal of property, which in reality is that of the husband, from the reach of his creditors by investing the wife with the ostensible ownership of it.

Where, however, the wife has become possessed of property in her own right acquired by her independently of her husband by virtue of, or in the exercise of rights under any of the provisions of our statute law it is her constitutional right to have such property protected from the debts of her husband. Art. 3, sec. 43 of the Constitution; Baker v. Hedrick, 83 Md. 645 . In a contest, therefore, between her and her husband’s,creditors she is entitled to have her claim fairly considered, and to have her evidence tested by recognized rules for weighing evidence. In the case of Seitz v. Mitchell, supra, no evidence was adduced on the part of the wife at all.

She rested entirely upon her answer under oath. There real estate had been purchased and the conveyances were made to the wife. A judgment creditor was seeking to have this real estate subjected to the lien of judgments obtained by him against the husband. ³³⁶ The answer of the wife denied that the husband bought and paid for the lots of land involved in the suit; and averred that the wife had bought and paid for them in her own right and for her separate property and had taken, the deed in her own name. The Court said that the answer furnished no evidence that the wife had any separate estate ; that it did not aver that the wife paid for either of the lots of real estate conveyed to her out of her separate estate ; that it did not aver that she had any separate property, nor did the proofs show that she had any; and that it averred that the wife paid the purchase money with means and money earned and procured wholly by herself; but of this there was no proof, nor attempt to adduce proof.

In this state of case the Court held the presumption against the wife had not been overcome. In the case of Manning v. Carruthers , 83 Md. supra, the proof appears to. have all accorded with the presumption which was to be overcome. The conditions presented by the case at bar differ essentially from those of the cases just referred to. Here practically all of the proof in the case has been produced by the plaintiffs, the married women, who claim the property that is the subject of controversy; and all of it is directed to overcoming the presumption that this property represents means furnished by their husbands or is the property of their husbands.

The question is must it all be disregarded and rejected as unworthy of credit ? That it must be is the proposition that is maintained by the appellees. The evidence shows that the plaintiff. Ella V. Beall, and Frank Beall, the judgment debtor against whom was issued the execution which the proceedings in this case were instituted to restrain, were married in 1890.

The wife seems to have been possessed of no property at the time of the marriage; and if the husband was possessed of any it was very insignificant in amount and value. The latter shortly after the marriage engaged in mercantile business in Prince George’s County in which he was unsuccessful. He conducted the business but a short time when he failed and made an assignment for the benefit of his creditors. ³³⁷ There appeared a large disproportion between the liabilities of the assignor and the assets which became available under the deed of assignment for their discharge ; and the appellees produced the trustee under the deed as a witness to prove that the