
    First National Bank of Wahoo, appellant, v. Frank Haylik et al., appellees.
    Filed May 18, 1897.
    No. 7222.
    1. Gift from Husband to Wife. The married woman’s act, being for the purpose of extending and not contracting or limiting the rights of married women in this state, will not be held to have abrogated the equitable rule which upheld gifts from husbands to wives, made when the husband was solvent, and which did not impair the existing rights of creditors. Dayton Spiee-Mills Oo. v. Sloan, 49 Neb., 622, followed.
    2. -: Trusts: Rights oe Creditors. Evidence examined, and held to sustain a finding that property in a wife’s name was not held in trust for her husband and was not subject to the payment of his debt created after she acquired the property.
    Appeal from the district court of Saunders county. Heard below before Wheeler, J.
    
      Affirmed.
    
    A statement of the facts appears in the opinion.
    
      Simpson & Sornborger and Good & Good, for appellant.
    In support of an argument in favor of the contention that the property in controversy belongs in equity to the husband and should be subjected to the payment of appellant’s judgment, reference was made to the following cases: Bailey v. Gardener, 31 W. Ya., 94; Musgrave v. Parish, 11 S. W. Rep. [Ky.], 464; Seitz v. Mitchell, 94 U. S., 584; Clinton Mfg. Go. v. Hummell, 25 N. J. Eq., 45; Switzer v. Valentine, 4 Duer. [N. Y.], 96; Glaun v. Young-love, 27 Barb. [N. Y.], 480; Woodbeclc v. Havens, 42 Barb. [N. Y.], 66; Ryder v. Hulee, 24 N. Y., 372; Connors v. Connors, 4 Wis., 112; Elliott v. Bently, 17 Wis., 591; Edson v. Hayden, 20 Wis., 682; Duncan v. Roselle, 15 la., 501; Cramer v. Reford, 17 N. J. Eq., 367; Hamill v. Henry, 69 la., 752; Thomas v. Desmond, 63 Cal., 426; Goddard v. Reagan, 28 S. W. Rep. [Tex.], 352; Brittain v. Growther, 54 Fed. Rep. 295; McAnally v. O’Neal, 56 Ala., 299; Humes v, Scruggs, 94 U. S., 22; Triplett v, Graham, 58 la., 135; 
      Steinkrcms v. Eorlh, 44 Neb., 777; Plummer v. Rummel, 26 Neb., 147; Broumell v. Stoddard, 42 Neb,, 177; Aultman v. Obenney&r, 6 Neb., 260; First Nat. Bank v. Bartlett, 8 Neb., 319; Thompson v. Loenig, 13 Neb., 386; Stevens v. Garson, 30 Neb., 544; Hill v. Fouse, 32 Neb., 637.
    
      J. R. Gilkeson, H. Gilkeson, and Reese & Gilkeson, contra.
    
   Irvine, C.

This was an action in tbe nature of a creditor’s bill by tbe First National Bank of Wahoo against Frank Havlik, Barbara Havlik, his wife, Emma Sommers, and the Packers’ National Bank of South Omaha, to subject certain property to the payment of a judgment of the Wahoo bank against Frank Havlik. The judgment was rendered in September, 1892, and the debt on which it was based was created in May, 1892. The petition alleged that in June, 1892, Frank Havlik was the owner of lots 4, 5, and 6, in block 170, of the County Addition to Wahoo, in Saunders county, and on the 9th of June, without consideration and with the intent of defrauding his creditors, he conveyed the same to Emma Sommers; that on the 3d of May, 1891, Frank and Barbara Havlik purchased of Louis Shroeder, with money of Frank’s, lot 24, block 3, Brown Park Addition to South Omaha, Douglas county, and that the title was taken in Barbara Havlik in secret trust for Frank, and with the purpose of placing it beyond the reach of his creditors; that on the 24th of June, 1891, Frank Havlik purchased from the Union Stock Yards Company lots 13 and 14, in block 9, and lot 10, in block 12, in the First Addition to South Omaha; that said realty was paid for out of the moneys of Frank, but the title taken in the name of Barbara in secret trust for him and with a similar fraudulent purpose; that on the 22d of March, 1892, Frank Havlik was the owner in fee of a certain tract of land in Saunders county, which was then conveyed to one Zaliourek, who gave in part payment therefor three promissory notes, one for $800, two for $700 each, both due March 1, 1894, and made payable to the order of Frank and Barbara; -that said notes were fraudulently transferred by Frank to Barbara for the purpose of placing them beyond the reach of Frank’s creditors, and were deposited for safe keeping with the Packers’ National Bank. These notes turned opt to be in the possession of Barbara and the Packers’ National Bank was therefore dismissed from the case. By the answers of the two Havliks and Emma Sommers, all allegations of fraud were denied and it was pleaded that the conveyances and transfers referred to in the petition were made for good and valuable considerations. The court found that lots 5 and 6, in block 170, in Wahoo, were the homestead of the Havliks and did not exceed in value the sum of $2,000. It then found that Frank had an undivided one-half interest in lot 4, and decreed that that interest be subjected to the payment of the judgment. This disposed of the interest of Emma Sommers, and so far no complaint is made of the decree by any party. As to the transactions with Barbara Havlik, the court found in favor of the defendants. The plaintiffs proceeded upon the theory that all the property in controversy was the result of profits derived from a saloon and boarding house kept in Wahoo in the name of Frank Havlik; that while Mrs. Havlik advanced $350 to permit him to enter into this business, and while the boarding house portion thereof was maintained by her labor, there was no loan to Frank of the money, and she had no interest in the business or the profits thereof; that the money with which the property was bought having been so derived, the property was in equity Frank’s, and not Barbara’s, and that the titles were taken in Barbara in secret trust. As to the notes the plaintiffs’ theory was that they having been received in part payment for the sale of land which was in equity Frank’s, the transfer thereof to Barbara was for the purpose of creating a like secret trust. The very able briefs discuss many authorities bearing upon the liability of property so acquired and conveyed for the debts of the husband. But the relative times of the conveyances and of the creation of plaintiff’s debt render it, in the light of the decisions of .this court, unnecessary to consider these questions. It will be observed that the South Omaha property was all acquired by Barbara prior to the time when Frank became in-* debted to the bank. The evidence tends strongly to show that Frank had contracted for the purchase of this property, but having become addicted to the excessive use of intoxicants, was unable to make his payments, and that most of the purchase money was in fact paid by Barbara out of her own separate earnings; and the conveyances were therefore made to her. This was done with Frank’s knowledge, if not his consent, and while there was introduced in evidence a document which seems to be a peti-' tion in the district court of Douglas county by Frank against Barbara and the vendor of part of the property, seeking to annul the conveyance to her, it is not shown that the document was genuine or that any such action was ever begun. The circumstances, especially in the light of subsequent dealings between the parties, are sufficient to establish a ratification, or at least acquiescence, by Frank which would operate as a gift of his equity, if any he had, in this property.

It is also claimed in argument that prior to the sale of the Saunders county farm a loan was secured of $2,500 by placing a mortgage thereon, and that this money was used in improving the South Omaha property. If the farm was in fact Frank’s and he chose to borrow money in this manner and improve his wife’s real estate, it would be another transaction in the nature of a gift to her.

As to the notes, it is contended that the transfer was not made until after the bank’s debt was incurred. But the weight of the evidence is the other way and supports the finding of the court.

It follows that if all of the contentions of the appellant be well founded as to the property having been acquired by moneys earned by and belonging to Frank, in each case there was a gift thereof to Barbara prior to the creation of the debt on which the bank’s judgment is founded. Onr married woman’s act being for the purpose of extending and not contracting or limiting the rights of married women in this state, will not be held to have abrogated the equitable rule which upheld gifts from husbands to wives, made when the husband was solvent, and which did not impair the existing rights 'of creditors. (Dayton Spice-Mills Co. v. Sloan, 49 Neb., 622; Studebaker v. Welch, 51 Neb., 228.) The application of this principle disposes of the case.

Affirmed.  