Opinion of the Court-Truitt, J. and McRoberts, and also to the property in Lewiston claimed by Ora Wellman, the said stipulation being as follows as to the property claimed by said Ora Wellman: "It is further agreed that the title to the said property claimed by Ora Wellman may be tried out in the aboveentitled cause upon complaint in intervention, and answer thereto, the parties hereto waiving any objections on the ground that the complaint in intervention was not filed prior to the entry of judgment or default, it being considered that the sole purpose of the complaint in intervention is to try out the title to the lot situate in the city of Lewiston, and claimed to be owned as separate property by the said Ora Wellman, and not to interfere in any way or manner with the validity of the plaintiff's judgment heretofore entered." According to the terms of this stipulation, on December 18, 1913, said Ora Wellman filed her complaint in intervention in said district court, in which she recited the facts of the attachment of said lot 1 of block 13, Riverview addition to Lewiston, Idaho, and claimed the same as her sole and separate property; she alleged that the attachment was a cloud upon her title, and asked that it be removed, and that said bank be enjoined from selling the property. To this complaint the bank filed its answer, denying the material allegations of the complaint, and setting up as a separate and affirmative defense certain facts tending to defeat plaintiff's claim of title to said property as alleged in her complaint. On the issues thus made by the pleadings the cause was tried by the court without a jury on March 13, 1914, and the court's findings of fact relating to the property in controversy are as follows: "III. That the intervenor, Ora Wellman, is the owner of lot 1 of block 13 of Riverview Addition to the city of Lewiston, Idaho, which is the separate property of the intervenor, Ora Wellman." And as to the material allegations of intervenor's complaint, the court found as follows: "V. That all the material allegations of intervenor's complaint in intervention are found to be supported by the evi Opinion of the Court-Truitt, J. dence and true, and all the material denials and affirmative matter alleged in plaintiff's amended answer thereto are found to be unsupported by the evidence and untrue." The principal question presented in this case is as to whether the respondent has the title to the property in controversy, and whether she secured it so as to make it her sole and separate property within the meaning of sec. 2676, Rev. Codes, and this was the main question presented to this court in Stewart v. Weiser Lumber Co., 21 Ida. 340, 121 Pac. 775, and in the case of Baldwin v. McFarland, decided May 15, 1914, and reported ante, p. 85, 141 Pac. 76, the same question was again presented to it and briefly disposed of in this way: "Our examination and consideration of the record and briefs in the case, and the law applicable thereto, satisfies us that the trial judge reached the correct conclusion, and that this property is the separate property of the wife, and was not subject to execution for the collection of the husband's debt. To our minds, this case falls within the rule announced in Stewart v. Weiser Lumber Co., 21 Ida. 340, 121 Pac. 775, and the long line of cases from this court followed in the Stewart-Weiser Lumber Co. case." But there are two other questions raised by appellant's brief and oral argument in the case at bar that are not directly passed upon in this line of cases as we understand them. These are (1) whether community funds put into improvements on the wife's separate property can be traced and recovered by a creditor of the husband; and (2) if not, whether in this case the respondent is estopped from claiming this property as her sole and separate estate by reason of having permitted her said husband to use, improve and deal with it as it is alleged he did in appellant's said answer to intervenor's complaint. Under sec. 2676, Rev. Codes, it is provided that, "All property of the wife owned by her before marriage, and that acquired afterwards by gift, bequest, or descent, or that which she shall acquire with the proceeds of her separate property, shall remain her sole and separate property, to the same extent and with the same effect, as the property of a husband similarly acquired." The evidence Opinion of the Court-Truitt, J. conclusively shows that the said lot was purchased with said Ora Wellman's own money, and $100 of her own money went into improvements thereon, but the improvements except as to the $100 were placed upon said property with community funds. It is not claimed that these improvements were made. with said Ora Wellman's separate money, but her husband testified that the part of these improvements put on the lot with community funds was a gift from him to his said wife. On this point W. A. Wellman, the husband, testified as follows: "Q. What was your idea in moving the building on this lot and putting it upon Mrs. Wellman's lot? A. I had to get it off the Yantis lots and she owned that lot in Riverview Addition, and I gave her that building to put on it as a home. Q. What was your intention as to its being her property? A. It was her property. Q. Did you retain any interest or attempt to retain any interest in the building on the lot? A. Not a dollar. Q. Were you indebted to anyone at that time? A. No, sir. Q. Were you indebted to anyone at the time this building was constructed? A. No, sir. Q. Were you in debt to anyone at the time Mrs. Wellman purchased this lot? A. No, sir." The case of Maddox v. Summerlin, 92 Tex. 483, 49 S. W. 1033, 50 S. W. 567, is relied upon by counsel for appellant in support of this point as a leading case in the line of authorities approving the holding of the court in that case on this question. For this reason we have read and analyzed this opinion and find that this point was presented there, but the case turned upon the vital question embraced in the following quotation from the opinion in that case: "We conclude that the land of the wife cannot be sold at the suit of the creditor, unless the facts shall show that the husband made the improvements with his own or the community funds, with intent to defraud his creditors, and that the wife, knowing of such intent, participated in the fraud. What may be the proper remedy to accord to the plaintiffs will depend upon the development of the case on another trial, and we refrain from making any suggestions, except to say that the house, when constructed upon the separate Opinion of the Court-Truitt, J. property of the wife, if paid for with community funds, did not become her separate property, but remained a part of the community estate, as was the money with which it was built, and, being community property, it is liable, if otherwise subject to sale, to the debts of the husband. If the husband intended the house as a gift to the wife, it was void as to existing creditors, and is subject to their debts as if not given to her, unless she shows that, when the gift was made, he had enough property remaining to pay all of his existing debts. The law will not presume it to be a gift, in the absence of evidence to show such intention." The decisive and crucial point is in the one sentence in the above quotation: "If the husband, being a debtor, intended the house as a gift to the wife, it was void as to existing creditors, and is subject to their debts as if not given to her, unless she shows that, when the gift was made, he had enough property remaining to pay all his existing debts." The italics are ours, and are intended to emphasize the vital and decisive difference between that case and the case at bar. There is no legal objection to the gift as such of the property in that case made by the court, provided that it was not repugnant to a certain statute which was in force at that time in the state of Texas, this statute being as follows: "Every gift, conveyance, assignment, transfer or charge made by a debtor, which is not upon consideration deemed valuable in law, shall be void as to prior creditors unless it appears that such debtor was then possessed of property within this state subject to execution sufficient to pay his existing debts." It will be observed that under this statute as to pre-existing debts, the gift was prima facie void and the property was subject to the payment of pre-existing debts, unless the donee should make it appear that the person making the gift at the time it was made possessed property within that state subject to execution sufficient to pay all his existing debts, and if this was done the gift would be legal and unobjectionable. Now, the statute of this state as to the property of the wife applies the same rule to her separate property that is applied to the property of the husband similarly acquired. The Opinion of the Court-Truitt, J. transfer of property by a husband to his wife in this state stands in the same relation to his creditors as any other transfer or conveyance. If he is out of debt and has no other legal liabilities, he has a perfect right to give his wife any of his property, or all of it if he is so inclined. But sec. 3169 is intended to protect creditors against a debtor conveying his property away to any person, including his wife, if done "with intent to delay or defraud any creditor or other person of his demands, and is void against all creditors of the debtor and their successors in interest." Whether in a given case the transaction is sincere and bona fide, or a mere device as a cover to conceal the real ownership of the husband to his property and thus delay or defraud existing creditors is the true test, and this is a question of fact to be determined by a jury or by the court when hearing the case without a jury. (Knapp v. Smith, 27 N. Y. 277.) Another authority relied upon by appellant is Collins v. Bryan, 40 Tex. Civ. App. 88, 88 S. W. 432, which is also a Texas case. In that case the trustee in bankruptcy of A. L. Collins brought suit against Sallie Collins, the wife of said A. L. Collins, alleging that when insolvent and just prior to being adjudged a bankrupt, with intent to hinder, delay and defraud his creditors, said A. L. Collins conveyed to his said. wife certain real property described in the complaint; and, further alleging, if not entitled to recover the land, that while still seised with the title to said land said A. L. Collins expended $1,000 out of the community estate upon this land in the way of improvements, and asked for a lien for said amount upon such improvements. The lower court found that the land belonged to said Sallie Collins, but that A. L. Collins had expended the sum of $300 of the community funds on improvements on this land, and that to that extent the improvements were community property, and ordered them sold and that the trustee be paid $300 out of the proceeds. Sallie' Collins appealed from this judgment, and one of the material points presented on the appeal was as to whether said improvements were a gift from her husband, and the court disposed Idaho, Vol. 26-28 |