263. sel that, pending the action below, she ob- | v. Hatch, 3 Ohio, 527; Clemens v. Davis, 7 Pa. Mr. Alexander Thain, for appellant: Stickney v. Stickney, 131 U. S. 227 (33: 136). Tracy v. Kelley, 52 Ind. 535; Hixon v. Cup The conveyance having been made to the An existing indebtedness is a good considera- Seymour v. Wilson, 19 N. Y. 417; Adams v. And the preference may be given for a debt Syracuse Chilled Plow Co. v. Wing, 85 N. Y. In Rhode Island, a preference of a bona fide Sage, 48 R. I. Pub. Stat. chap. 237, p. 660, SS 14, 15; Atlantic Nat. Bank v. Tavener, 130 Mass. Right to prefer among creditors is a conse-ty to pass into her husband's hands and posses- Lampson v. Arnold, 19 Iowa, 479; Wilson v. And such preferences are not fraudulent. A preference is not fraudulent, though oth- ous. Kuykendal v. McDonald, 15 Mo. 418, 57 Or though the debtor be insolvent. Nor by the fact that the debtor wishes to Holbird v. Anderson, 5 T. R. 235; Hall v. sion to manage as he sees fit, without any prom- Humes v. Scruggs, 94 U. 8. 22 (24: 51); She is estopped from now claiming the estate Sexton v. Wheaton, 21 U. S. 8 Wheat. 240 Graeffe intended to defraud his creditors by United States Trust Co. v. Sedgwick, 97 U. S. As between her and her creditors, so far as Owings v. Hull, 34 U. S. 9 Pet. 607 (9: 246); U. S. 18 How. 503 (15: 472); Mr. Justice Harlan delivered the opinion of the court: Watson v. Tarp- | his name. She grew excited about the matter, and insisted upon his making a conveyance to her at once. This he agreed to do. He promised that he would attend to it at once, but neglected to perform his promise. To these facts the husband testified, and we In the court below it was contended, in are not at liberty, upon a close scrutiny of behalf of the plaintiffs that even if there the evidence, to doubt the substantial acwere no agreement that the property in ques-curacy of his statements. Other testimony tion should be taken in the name of the wife, by him was to the following effect: "Q there was nothing illegal or inequitable in After this interview in August, and before preferring her to the amount of the husband's the conveyance, on the first of March followdebt to her. Upon this point the court said: ing, had you any conversation with Mrs. "The question of the legality of a preference Graeffe in which she was informed as to under Rhode Island laws does not arise in where the required title of the property was? this case; for our decision rests upon the prin- A. What do you mean by that? Q. How ciple that Mrs. Graeffe, by her own conduct did she know that it had not been conveyed or acts, by what she permitted to be done, to her? A. She questioned me from time to 426] or neglected to do, *is estopped in a time and I was forced to make acknowledgcourt of equity from claiming this estate as ments to her that I had not as yet attended to against the general creditors of her husband." the transfer. Q. When did she first question We are of opinion, after a careful exam- you, after the interview of August, 1880? ination of the evidence, that there was noth-A. In that fall of 1880 and also in the spring. ing in the conduct or acts of Mrs. Graeffe that precluded the court from granting the relief sought by her. The case made by the bill was in all material particulars sustained by the proof. We do not see how this conclusion can be avoided, except by disregarding alto. gether the testimony of Mrs. Graeffe and her husband. And that we do not feel at liberty to do. In our judgment what they have said under oath touching the vital issues in the case must be taken as substantially true. Mrs. Graeffe inherited from her father and uncle property, principally real estate, worth from $100,000 to $125,000. When the estates of the uncle and father were settled up, the moneys and securities belonging to her came into the husband's hands under a power of attorney which authorized him to receive them for her. There is no claim, as under the evidence there could not be, that the wife made a gift of this property to her husband. On the contrary, it remained in his hands to be controlled for her, although he was allowed a large discretion in its management. The husband informed his wife that she could buy the property in question, stating that it could be purchased cheaply, and that a very fair return could be derived from it if improved and leased to the Mills Company. When it was concluded to make the purchase, the husband told the wife that he "would buy the property for her," and that "the title was to be vested in her." It is beyond question that she relied upon his assurance that the property would be secured to her. She certainly understood at the time, as was quite natural, that it was to be her property. The purchase was made in March, 1880. The husband, without the knowledge of the wife, and in violation of the assurances he had given her, took the title in his own name. The price paid was about $6000. Immediately after the purchase improvements costing about $40,000 were put upon the premises. The moneys paid for the property, and that expended for its improvement, belonged entire427]ly to Mrs. Graeffe. *In August, 1880, the improvements being then in progress, she discovered, in the course of a conversation with her husband, that the property stood in Q. When was it that you first told her that you had not transferred the title to her? A. August, 1880. Q. And then you told her you were going to do it? A. Yes. Q. After that when did you tell her you had not; or, did you tell her anything about it? A. Yes; I told her later, with a promise to do it, and failed to do it. Q. When next, prior to March first, 1881? A. Some time in Febru ary; I cannot tell the date, but it was at the moment when I was borrowing money from her to pay some drafts that were maturing. She then again learned that I had not made this transfer. I told her then, and she was very much excited about it." Mrs. Graeffe testified to the following effect: "Q. At the time he had these conversations with you, was there anything said as to who was to take the property? A. I understood that it was to be my property. Of course, I understood it was to be my property. Q. Did you learn from time to time that purchase had been made of the property? A. Yes, Graeffe told me, and told me the price he could get, but I don't remember the figures at all. Q. What did you say *about [428 purchasing? A. I left it to him. Q. What did you say to him? A. I expected that he would purchase, and talked to that effect. Q. When did you first learn that the title to the property was not in your name? A. About August of that year, I think. I think it was some time during the summer and we were talking about the property, and he gave me to understand it was not in my name. I then insisted upon it, and he said it should be put in my name. I know we had quite a little controversy at the time. He said if that would satisfy me, it should be put in my name. Q. When next did you have any conversation with Mr. Graeffe after this interview in August on the subject of the title to this property? A. I don't think we ever spoke of it again to speak of the title until he was about to fail. About that time I spoke to my brother about it, and that was the first I knew that it had not been put in my name. Q. What did you say to your brother? A. I asked him to look out for my interest, and get my money. He asked if it was mine. I said I thought it was. I then wife in the same manner and with the samespoke to Graeffe, and he said it had not been rights and effect as the property sold." R. put in my name. My brother said immedi- I. Pub. Stat. chap. 166, p. 422, § 1, 2. ately it must be done. I think it was he And, in that state, preferences of bona fide who took charge of the affair. Q. Immedi- debts are permitted, except when they are ately after this conversation, the transfer was assailed under the insolvent laws of that made? A. Yes, I think it was the next day state, within the time limited by those laws. just as soon as I could possibly make ar-R. I. Pub. Stat. chap. 237, p. 660, §§ 14, 15. rangements. The brother of Mrs. Graeffe here referred to was William H. Garner, to whom the property was conveyed by Graeffe, and by whom it was immediately conveyed to the wife. He testified: "Some few days before the actual transfer Mrs. Graeffe, my sister, told me of the fact that this property belonging to her had been transferred to her husband, and asked me to insist on its being retransferred to her, and I did so." Under the deed from her brother, Mrs. Graeffe claims the property as against those who obtained sheriff's deeds under attachments issued and levied after the title was vested in her. These attachments, we have seen, were levied on the right, title, and interest of the husband int he property. The proof fails to show that Mrs. Graeffe ever stated to any one that her husband owned 429] the property, or that any *one in her presence ever spoke of him as its owner. There is some conflict in the evidence as to whether the husband represented to any creditor that he owned the property. He denies that he ever did, and we do not think the evidence authorizes us to assume that he made or intended to make any representations of that character. In any event, it must be taken that his creditors were not induced to regard him as the owner of the property by reason of any representations to that effect by, or with the knowledge of, Mrs. Graeffe. The only omission charged against her in respect to the property is that she relied upon her husband's assurance that it would be put in her name, and did not, immediately upon learning in August, 1880, that he had deceived her, take steps to have the property conveyed to her, and thereby placed herself before the public as holding the legal title. But is that omission sufficient to justify a court of equity in denying the relief asked? Let this question be examined first with reference to the law of the state where these transactions occurred. It is provided by the statutes of Rhode Island that "the real estate, chattels real and personal estate, which are the property of any woman before marriage, or which may become the property of any woman after marriage, or which may be acquired by her own industry, shall be absolutely secured to her sole and separate use; neither the same nor the rents, profits, or income of the same, or any part thereof, shall be liable to be attached or in any way taken for the debts of the husband, either before or after her death, and upon the death of the husband, in the lifetime of the wife, shall be and remain her sole and separate property:" further, "in case of the sale of any such property, the proceeds of such sale or any part of the same may be invested in the name of the wife, in any property, and be secured to and holden by the *In Steadman v. Wilbur, 7 R. I. 481, [430 486, which involved the validity, as against the husband's creditors, of a purchase alleged to have been made by the wife, with her separate estate, of property belonging to the husband, the court said: "If the title conveyed to the wife were a mere equitable one, resting in executory contract, a court of law could not set it up against a legal title by execution acquired by purchase from a creditor's levy and sale; but where, as in this case, the wife's legal title has been perfected by a deed, a court of law could deal, and ought to deal, with the wife's right to purchase, for a fair consideration, from her husband, precisely in the same way that a court of equity would. If this be so by the general law, how much more in this state, where, by statute, not only the wife's rights to her property are secured against her husband and his creditors, but her legal identity with respect to it, as a person distinct from her husband, is recognized, and her power to act and contract in the disposal of it, in the modes permitted by law, is acknowledged by legislative enactments. Observing that if the wife may contract with her husband at all for the purchase of his property with hers, it must be, in regard to his creditors, upon the same principle of good faith, and the giving of equivalent consideration, that any other purchaser might, and that if she loans him money, it must be with the same right to expect and receive security or repayment out of his estate, and even preferences of payment, that any other creditor has, the court proceeded: "She cannot, indeed, when her husband becomes insolvent, convert into debts, as against creditors, former deliveries to him of her money or other property, or permitted receipts by him of the income or proceeds of sale of her separate estate, which at the time of such delivery or receipt were intended by her as gifts, to assist him in his business, or to pay their common expenses of living; and, considering the relation between them, the law would not, merely from such delivery or receipt, imply a promise on his part to replace or repay, as in case of persons not thus related; but would require more, either in express promise or circumstances, to prove that on those matters they had dealt with each other as debtor and creditor. *It is not, however, as supposed, [431 a rule of law that at the time of each delivery or receipt of the separate property of the wife by the husband, the latter must expressly promise to repay the former, or to secure her out of his estate, to constitute the relation of debtor and creditor between them in regard to it. Such a promise, made before such transactions, and looking forward to and covering them, would, at law as in common sense, avail as well to prove the character of them, precisely as it would between other parties who were dealing with each other on |122 U. 8. 496, 500 [30: 1126, 1127], which credit and in confidence. Nor is it true that related to a conveyance of real estate by a an express promise to secure or repay out of husband for the benefit of his wife, and which the estate of the husband is requisite, in such conveyance was alleged to have been made a case, to prove that her husband received in good faith to secure debts due to her for her separate property as a loan, and was sums previously realized by him from sales therefore entitled, as against his creditors, of her individual property, the court said: thus to secure and repay her. Neither at law "If, therefore, there had been no other con nor in equity is inferential proof to be re-sideration for the deed than a desire to secure jected upon such a subject, more than upon for his wife provision against the necessities any other, although, as suggested, what are for the future, it could not be sustained. proper inferences may be modified or allowed by the relation between the parties." In Hodges v. Hodges, 9 R. I. 32, 35, it was decided that husband and wife, if they choose to do so, could treat each other as lender and borrower, and that such a contract would carry with it the usual incident of interest, the same as with other parties. And it was held, in that case, that the wife was entitled to be credited in the account between her and her husband with the proceeds of the sale of her property, although they had been applied to defray family expenses with her consent and approval. In Elliott v. Benedict, 13 R. I. 463, 465, it was held that, subject to the limitations prescribed by the insolvent laws of Rhode Island-which limitations do not affect the present case-a debtor has the right to apply the whole of his property, subject to attachment, to the payment of any one of his debts in preference to others. The court said: "At common law it is no fraud for a debtor to pay in full any debt which he owes, out of any property he has, whether attachable or not, though the result, and even the proposed result, of the payment may be that other debts will have to go unpaid. And the common law in this regard is not affected by the statute of fraudulent conveyances. And 432] *in Franklin Sav. Bank v. Greene, 14 R. I. 1, 3, 51 Am. Rep. 336, it was held that, in Rhode Island, a wife might acquire by purchase or gift from a third person the note of her husband, and enforce payment thereof as such third person might have done, she suing, if suit became necessary, by next friend in equity, or through a trustee of her estate appointed by the court on her petition under the statute. Alluding to the rule at a common law declaring that the transfer of a note of the husband to the wife extinguished the debt, the court said: "The enactment, however, of statutes recognizing the separate existence of a married woman by securing her property to her exclusive use, as against the husband and his creditors, and by conferring upon her to a greater or less extent the power of entering into contracts respecting her property and of disposing of it independently of her husband, has changed the common law in this respect, where such statutes prevail. They two are no longer one, and he that one. " The general principles thus announced by the supreme court of Rhode Island are in accord with the decisions of this court. In Magniac v. Thompson, 32 U. S. 7 Pet. 348, 397 [8: 709, 726], this court said that, among creditors equally meritorious, a debtor may conscientiously prefer one to another, and it can make no difference that the preferred creditor is his wife. So in Bean v. Patterson, . That the property in Pennsylvania, deeds of which are mentioned above, was used for his benefit, and to pay and secure his debts, is sufficiently established. The amount realized therefrom, as we read the evidence, was greater than the sum named in the trust deed as due to her. That deed for her security stands, therefore, upon a full consideration. Had it been given to a third party for a like debt it would not be open to[433 question that it would have been unassail. able. The result is not changed because the wife is the person to whom the debt is due and not another. While transactions by way of purchase or security between husband and wife should be carefully scrutinized, when they are shown to have been upon full consideration from one to the other, or, when voluntary, that the husband was at the time free from debt and possessed of ample moɑ is, the same protection should be afforded to them as to like transactions between third parties." To the same general effect are numerous cases: Jewell v. Knight, 123 U. S. 426, 434 [31: 190, 193], and authorities cited; Stickney v. Stickney, 131 U. S. 227, 238, 240 [33: 136, 143, 1441. In the latter case it was said that “whenever a husband acquires possession of the separate property of his wife, whether with or without her consent, he must be deemed to hold it in trust for her benefit in the absence of any direct evidence that she intended to make a gift of it to him." Applying the principles recognized by this court, as well as by the highest court of the state in which the property in question is situated and where the transactions in question occurred, we hold that Mrs. Graeffe is entitled to a decree canceling the deeds under which the defendants claim the property described in the deed to her. That her husband was without any means of his own and had in his possession, substantially, the entire estate of his wife, controlling and managing it for her; that the property in question was purchased and improved wholly with her money under an explicit assurance by him, before the purchase was made, that it would be put in her name; that she relied upon his compliance with that promise; that the husband, on the 1st of March, 1881, owed her a larger sum than the amounts expended in purchasing and improving the property; that the conveyance to Garner, in order that he might convey to Mrs. Graeffe, was made in good faith, for the purpose, and only for the purpose, of satisfying, to the extent of the value of the property conveyed, the debt due to the wife; and that no one became creditor of the husband in consequence of any representation made by her, or with her court found that the proof showed a state of ably untrue, in fact, that this land was 434]knowledge, that he owned the proper. | the title had been taken in her name-the ty, are all facts clearly established by the evidence. Why should not the wife be protected under these circumstances? If the husband, in fact, had owned this property, and, in order to prefer a part of his creditors, had, in good faith, sold and conveyed it to them, with the intent to give a preference over other creditors, the right of such grantees to hold it, unless the case was brought within the insolvent laws of the state, could not be questioned. No different rule should be enforced in this case against a wife who has received a conveyance of property purchased with her money, and which should have been put in her name when so purchased. By no act or word, upon her part, was the husband dis charged from the performance of his agree ment to put the property in her name. The conveyance to Garner, followed by his conveyance to her, was executed for the purpose of discharging the husband's obligation to the wife, and was made before any creditor acquired a lien upon the property by attachment. As between the husband and wife, a court of equity would have compelled him to secure this property to her. If, before any rights of attaching creditors intervened, he did voluntarily what the law made it his duty to do, the transaction is not subject to impeachment by his creditors, unless the wife has been guilty of such fraudulent conduct as ought, in conscience, to estop her from claiming the property as against such creditors. If the wife had herself been guilty of deception, or if she had contributed to its success by countenancing it, she might, with justice, be charged with the consequence of her conduct. Sexton v. Wheaton, 21 U. S. 8 Wheat. 229, 240 [5: 603, 607]. But the evidence furnishes no ground for the imputation of fraud against her. That she relied upon the husband's promise to purchase the property for her and invest her with the title, and that she again relied upon his assurance, given in August, 1880, that he would have the property conveyed to her, are circumstances that do not affect the substance or good faith of the transaction. She acted with all the diligence that could reasonably have been expected or required under the circumstances. She supposed that he kept an accurate account of all transactions involving her THE CITY OF LINCOLN, Piff. in Err., estate as managed by him, and had no purpose 435] to give him a false credit before the world. As subsequent developments showed, she erred in relying upon the assurances and promises of her husband as much as she appears to have done. But, as fraud cannot be imputed to her, a court of equity ought not, for such an error, to deprive her of that which is justly hers. The cases cited in the opinion of the court below rest upon a state of facts wholly different from those here presented. For instance, in Humes v. Scruggs, 94 U. S. 22 [24: 51], which was a suit by an assignee in bankruptcy to set aside a conveyance of real estate made by a bankrupt to his wife as being in fraud of the rights of creditors-the wife alleging in her answer that the land was purchased by the husband with her money and that she believed for years that | In our judgment, the court should have dismissed the cross-bill and given to Mrs. Graeffe the relief asked by the bill. The decree is reversed and the cause remanded for further proceedings, in conformity with this opinion. Mr. Justice Brown was not present at the argument, and took no part in the decision of this case. v. MARGARET J. POWER. (See S. C. Reporter's ed. 436-443.) Excessive damages-refusal to charge jury-notice of claim-injury by defective sidewalkCarlisle Tables-expression of opinion by judge to jury-charging jury. 1. This court cannot consider an assignment of error that the damages found by the jury are excessive and given under the influence of passion and prejudice, where the complaint is only of the action of the jury. NOTE.-As to freedom of plaintiff from contributory negligence, necessary to entitle him to recover, see note to Stokes v. Salstonstall, 10: 115. As to damages for personal injury from negligence, see note to Pennsylvania v. Roy, 26: 141. As to contributory negligence; imputed negligence; |