Farmers & Merchants' National Bank v. Jenkins

Robinson, J., delivered the opinion of the Court. On the 18th of April, 1884, the firm of T. Robert Jenkins & Sons made an assignment of their individual and partnership property for the benefit of creditors. The entire property of the firm belonged to T. Robert Jenkins, the father', the sons having no other interest than a share of the profits. This suit grows out of a claim of $51,882.64, filed with the assignee, by the wife of T. Robert Jenkins, for money and property which belonged to her, and which was appropriated by her husband, under a promise to repay her, or to invest the same for her use.

In some respects at least, this is an extraordinary claim. Mr. and Mrs. Jenkins were married in 1845, and the first items in the account begin with the first year of their marriage, now more than forty years ago. The interest alone exceeds $26,000, and the rest of the account is made up of'$1,565.33 principal, and $18,223.81 rents and income received during all these years by Mr. Jenkins from property belonging to his wife. ²⁴⁷ This large claim was made out for the first time iul884, after the failure of the husband, and made out too, not from original entries, nor from any account kept by him, but by the book-keeper of the firm, under the special directions of Mr. Jenkins himself. The first knowledge the creditors had of the claim was when it was filed with the assignee, four months after the deed of assignment.

Before the execution of this deed, Mr. Jenkins made a full statement of his affairs to his creditors, showing his assets and liabilities, with every reason to make the latter appear as large as possible, in order to induce the creditors to accept a compromise which he offered to make, and which they regarded as too small; and yet in the statement thus submitted by him, no mention whatever is made of this large indebtedness to his wife — an indebtedness more than sufficient to sweep away his entire individual property. And more than this, in a conversation about the same time with Mr. Sloan, from whom he borrowed $20,000, in regard to the condition of his affairs — his property and liabilities — not one word is said about the claim now in controversy. It is a claim unsupported by a single line of writing, and rests solely upon the testimony of Mr. Jenkins and his wife. It is hardly necessary to say in considering a claim made under these circumstances, Courts cannot scrutinize too closely the evidence on which it is founded, Now what is the proof?

Mrs. Jenkins had at the time of her marriage in 1845, Cathedral stock of the value of $2,883.00, and this stock was sold by her husband, and the proceeds were used by him in his business. Besides this, he also collected and received from her guardian $14,000, of which $9,288.00 was invested in the purchase of a dwelling house, No. 75 Centre street. This house was conveyed to his wife, and the balance of the $14,000, namely, $4,712.00, was appropriated to his own use. ²⁴⁸ There can be no 'doubt that when Mr. Jenkins sold the Cathedral stock, and when he collected the $14,000 from his wife’s guardian, the money thus received by him was, under the then existing laws of'this State, absolutely his own property. Turton vs. Turton, 6 Md., 375 ; Logan vs. McGill and Wife, 8 Md., 462 ; Anderson vs. Tydings, 8 Md., 427 ; Schindel vs. Schindel, 12 Md., 311 ; Bayne and Wife vs. State, use of Edelen, 62 Md., 100 .

The money thus received by him constituted no part of his wife’s separate estate, but belonged to. him by virtue of his marital rights. He could if he saw proper settle the whole of it or part of it on his wife. But if he appropriated it to his own use, even under a promise to repay her, or to invest it for her use, such a promise was without consideration, and could not therefore be enforced against him. It was a mere promise to give, and not a contract, to constitute which there must be not only a promise, but a consideration to support it.

As was said in Bayne’s Case, such promises amounted to nothing more than mere voluntary agreements to make future donations “ to the wife, by the return of like sums of money. Being without consideration they could not be enforced, for a mere promise to make a voluntary gift is not sufficient.” This then disposes of the claim for the Cathedral stock and interest thereon for nearly forty years, and also of the claim for $4,712.00, the balance of the. $14,000 collected from the guardian of Mrs. Jenkins. But $9,288.00 of this $14,000, was, as we have said, invested in the Centre street house, and this house was conveyed to Mrs. Jenkins. Whether under the deed it belongs to her as her separate estate, is a question we shall not stop to consider.

For the purposes of this case we shall treat it as her separate property. Now the rélation of debtor and Creditor may, no doubt, exist between husband and wife, growing out of the receipt by the husband of the wife’s separate estate, under a promise made at the time to repay her or to in ²⁴⁹ vest the same for her use. Bowie vs. Stonestreet, et al., 6 Md., 418 ; Kuhn, Gar. vs. Stansfield, 28 Md., 210 ; Hill vs. Hill, 38 Md., 183 . In this case, the Centre street house was occupied by Mr. Jenkins and his family from 1850, the time when it was bought, until his removal to Mount Yernon Place in 1867.

There is no pretence that he ever agreed to pay to his wife rent during the time it was thus occupied. Instead of rent, however, she claims interest on the purchase money of the house during all these years. Precisely on what grounds the claim for interest is to be supported, we do not understand. There is not a particle of proof to show that Mr. Jenkins ever agreed to pay such interest.

The house was bought for a home, and it was occupied as a home, with the knowledge and acquiescence of Mrs. Jenkins. The purchase money, although it came through the wife, belonged to Mr. Jenkins under the then existing laws of this State. If he thought proper for this reason to make a settlement on his wife, the mere occupation of the house by himself and his family, would not in itself be a ground on which his wife could claim interest on the purchase money. There must be proof of a promise or agreement of some kind on the part of Mr. Jenkins — a promise or agreement made at the time.

We come now to the