COBURN v. STORER

The mere delivery by a wife of her money to her husband, to use in the purchase of real estate in his name, raises no legal presumption that the transaction was a loan. To prove that a transfer of property was fraudulent, admissions of one of the parties showing his fraudulent purpose, though made in the absence of the other, are competent evidence.

Per Curiam.[fn*] [fn*] See foot-note on page 80.

The delivery of money without other evidence of the contract between the parties raises no presumption of law that it was intended to be a loan, rather than the payment of a debt, or a gift. Its legal effect would necessarily be very different in different cases, and a legal presumption that it amounted to a loan in a given case would be as likely to defeat as to carry out the intention of the parties. The intention of the parties, found as a fact from competent evidence, must determine the character of their act. The question is one peculiarly within the province of the jury. Falls v. Haines, 65 N.H. 118. Whatever weight the marital relation existing between the defendants might have as evidence upon that question, it does not furnish a legal presumption of a loan, which would not exist if Mrs. Storer had delivered the money to some other person than her husband. While the statute (Gen. Stats., c. 164, s. 13; Gen. Laws, c. 183, s. 12) removed certain common-law disabilities of married women, and authorized them to make contracts generally as if they were unmarried, it did not give them the benefit of a legal inference not applicable to similar transactions between other people.

The evidence of admissions made by one of the defendants in the absence of the other was properly admitted. It was essential to the plaintiff's case to show that both the defendants participated in a scheme to defraud him. It would not be sufficient to show that one of them alone was guilty. The fraudulent purpose of each could be proved by separate and independent evidence of the declarations made by each, not in the presence of the other Blake v. White, 13 N.H. 267, 272; Pomeroy v. Bailey, 43 N.H. 118, 125; Lamprey v. Donacour, 58 N.H. 376; Osgood v. Eaton, 63 N.H. 355.

Judgment on the verdict.

SMITH, J., did not sit: the others concurred.