Hussey v. Castle

Opinion — Sprague

By the Court, Sprague, J.:

The demurrer to the complaint should have been overruled.

There is no legal presumption that the conveyance of the premises described in the complaint, by J. C. Hussey, the husband of the plaintiff, to her, of February 15th, 1870, was fraudulent as against the party now seeking to sell the same in satisfaction of a judgment against the husband of plaintiff, obtained more than three months after such conveyance, even though the husband had made the same as a voluntary conveyance to, or settlement upon, his wife, the plaintiff; and clearly, under the circumstances attending the conveyance, and the substantial money considerations therefor, alleged in the complaint, no presumption of fraud, as against subsequent judgment creditors of the husband, arises; nor does the presumption arise, from a conveyance of the separate property of the husband to the wife, in consideration of money passing from the wife, which was her separate property, that the property thus conveyed becomes the common property of the husband and wife.

*242The money alleged to have been the consideration for the conveyance relieves the same from the imputation of being a voluntary conveyance, independent of the ante-nuptial verbal contract. And further, as the ante-nuptial contract is alleged to have been completely executed, the same is not assailable by the parties thereto, or by third parties, on the ground that it was not in writing, as prescribed by statute.

Judgment and order dissolving the injunction reversed, with directions to the Court below to overrule the demurrer to the complaint.

Reither Mr. Justice Wallace nor Mr. Justice Crockett expressed an opinion.