Opinion
06-08-1888
BARRETT v. FOLEY et al.
C. Robbins and J. Buchanan, for complainant. Gilbert & Atkinson, for defendants.
On bill, answers, and proofs.
Bill by Mary Barrett against John Foley and others, judgment and mortgage creditors of her husband, to have title to certain lands declared to be in her.
C. Robbins and J. Buchanan, for complainant. Gilbert & Atkinson, for defendants.
BIRD, V. C. The object of this bill is to have the title to certain lands declared to be in the complainant; and, to effectually accomplish that, to have declared void, as to her, a certain judgment against her husband, and a certain mortgage given by him.
First. In whom should the title vest? This question arises between the complainant and her husband. During their married life, he took title to two lots of land. She alleges that he paid for them with money furnished by her. He denies this, and swears that he used his own earnings. In my judgment, the great weight of evidence is in favor of the complainant. That he earned considerable money is clearly proved. It is also proved that he sold cattle for cash, and that he borrowed of his friends several hundred dollars. But it is equally well established that his habits were very bad, in that he was addicted to drinking to great excess. He also insists that he paid a great many bills, in all amounting to over $2,000, which, if true, would quite exhaust all his funds. On the other hand, it is conceded that Mrs. Barrett and her children earned considerable money. Mr. Barrett took out license to sell liquors, and Mrs. Barrett did all the selling. He allowed her to have all the profits. Healso allowed her to have all the earnings of the children. They swear to this, and he said that he never got a dollar of them; nor does it appear that he ever made any claim to them, nor does he now claim them. Mrs. Barrett swears that he promised her that, if she would let him have the money, he would buy the first lot, where they were then living, and would take the deed in her name. She also says that, upon this promise, she borrowed of her mother and a sister $100, which, with what she had saved, was the amount of his bid for the lot, and that she gave the money to him for that purpose, with that understanding, He took the deed in his own name. This fact she did not learn until afterwards, when her mother informed her; and whether before or after the purchase of the second lot does not clearly appear. But, when the second lot was purchased, I think it is equally plain that the understanding between them was that it was to be purchased in her name. And I think it is settled by the proof that Mrs. Barrett, by her own savings, and by the earnings of her children, paid all that has been paid of the consideration. They earned the money, and saved it. According to his own admissions he spent, as I have also shown, what he earned, as well as what he borrowed, or received for goods sold.
Secondly. The judgment creditor and the mortgagee can neither claim that they took without notice, nor for such consideration as the court will uphold in such case. The judgment was for less than $100. The sheriff sold the lot for $900, and then Foley, a creditor, agreed to take the title for that sum, in liquidation of his claim. This might well be called a "thumping bargain;" for there was no accounting whatever to ascertain the real amount due. Besides this, there are many other strong badges of fraud. I think the complainant is entitled to relief, and with costs.