
    Richmond.
    McConville v. National Valley Bank, of Staunton.
    January 18, 1900.
    1. Husband and Wife—Use of Wife’s Money by Husband—Presumption— Husband Holding Legal Title for Wife.—Collection of Rents.—If a husband collects and uses as his own the money of his wife, with her knowledge and consent, the law presumes a gift. This presumption, is not affected by the fact that the husband holds the mere legal title to the wife’s land, where it appears that the wife permits him to collect and use her rents, although she is invested with the absolute ownership, with authority to use, possess, and enjoy the property, and to receive the rents, issues, and profits thereof, to her own use.
    2. Husband and Wife—Conveyance from Husband to Wife—Presumption.—The presumption of law is that a conveyance from a husband to his wife is voluntary, and the burden is on those claiming under such conveyance to show the contrary.
    3. Husband and Wife—Husband Trustee for Wife—Collections as Trustee—Liability to Wife—Conveyance in Consideration of Such Liability.—If a debt is secured to a husband as trustee for his wife, and he alone has authority to collect it, the receipt of the money by him does not raise a presumption of a gift from his wife, nor is she compelled to prove a promise on his part to pay or account for it. Equity will compel him to pay; and a deed to his wife, made in con- . sideration of such indebtedness, is valid, and will be upheld.
    Appeal from a decree of the Corporation Court of the city of Lynchburg, pronounced June 16, 1898, in a suit in chancery_ wherein the appellee was the complainant, and the appellant and another were the defendants.
    
      Reversed.
    
    The opinion states the case.
    
      F. S. Kirkpatrick and H. M. Ford, for the appellant.
    
      Harrison & Long, for the appellee.
   Cardwell, J.,

delivered the opinion of the court.

The object of this suit was to set aside a deed made by a husband to his wife of all property owned by him, upon the ground that it was made without valuable consideration, and for the purpose of hindering, delaying, and defrauding his creditors, and to subject the property conveyed to the payment of the debts of the husband.

The grantor, D. L). McConville, had for a number of years been engaged in the mercantile business in the city of Lynch-burg, and, about two months prior to the execution of the deed attacked in this suit, he and-his wife conveyed to W. E. Garbee and wife jointly a house and lot in Lynchburg, where he had theretofore resided and conducted his business, for a consideration of $2,688, evidenced by eighty-four negotiable notes for $82 each, payable at intervals of one month from April 5, 1897, to D. D. McConville, and secured by a deed of trust on the property conveyed, and, on the 17th of June, 1897, he executed the deed in question to appellant, E. M. McConville, conveying to her his entire property, including the eighty-four notes of ~W. E. Garbee, above mentioned. This deed was made but two days before the rendering of the judgment in favor of appellee, the National Valley Bank, upon the note of one B. E. Hughes for the sum of $504.14, with interest from the 22d day of April, 1897, endorsed by D. D. McConville and the Traders Bank of Lynchburg, and about two weeks before the filing of a commissioner’s report fixing the liability of D. D. McConville to Boy C. Brown, appellee, as surety for B. E. Hughes, on his bond as guardian for Boy C. Brown and others, at the sum of $1,904.47, with interest.

Besides certain debts outstanding against D. D. McConville, amounting to $1,475, assumed by tbe grantee, Mrs. McOonville, tbe consideration set out in tbe deed is tbe alleged indebtedness of D. D. McConville to bis wife, stated as follows:

By amount collected by tbe said D. D. McConville for tbe said Eleanor M. McConville, bis wife, from

James Henderson, R. D. Yancey, trustee......... $ 800 00

Interest for three years.............................. 144 00

-$ 944 00

2. By rent collected by tbe said McConville, as trustee for bis wife, from bouse on Twelfth street.......$ 840 00

With accumulated interest (estimated)............... 300 00

- 1,140 00

3. By rent collected (of Ed. Roetblein, agent) for said party of tbe second part.........................$1,300 00

With interest (estimated)............................ 100 00

- 1,400 00

4. By rent collected from a bouse in Camp Davis.....$1,000 00

With interest for five years.......................... 300 00

- 1;300 00

5. By amount collected from bouse on Diamond Hill.. . 48 00

The rents, with estimated interest, claimed to have been collected, aggregate $3,888, which, with tbe Henderson debt, with three years’ interest, $944, makes $4,832, tbe consideration set out in tbe deed other than tbe assumption by tbe wife of tbe debts of tbe husband above mentioned.

Upon tbe bearing of tbe cause, tbe court below, by its decree appealed from, held that tbe deed was, except to tbe extent of tbe debts assumed to be paid by Mrs. McOonville, not upon consideration deemed valuable in law, and was made with intent to binder and defraud tbe creditors of D. X). McOonville, and annulled tbe deed as to tbe debts of tbe appellees, tbe National Yalley Bank and Boy O. Brown, except as to tbe $1,475, tbe amount of tbe debts assumed to be paid by Mrs. McOonville.

Tbe appellant, Mrs. McOonville, contends that, in setting aside and annulling tbe deed as to tbe rents alleged to have been collected by her husband, and tbe amount of tbe Henderson debt, the Circuit Court erred on two grounds: First, because the evidence shows that D. D. McGonville collected and used in his business her money, pursuant to an understanding between them that he would either return the money or convey her his real estate; second, that the legal title to her property (from which it is alleged the rents were received) stood in the name of her husband, as trustee; that he collected her money, not as her agent, but as her trustee, in which capacity he was vested with the legal right and authority to collect it, and that she, being the beneficiary of those trusts, has the right to require the payment of the sums collected by him.

It is true that two pieces of the real estate referred to were conveyed to the husband as trustee for his wife, but under the terms of the deeds he only held the bare legal title, and the wife is given the absolute ownership, with authority to use, possess, and enjoy the property, and to receive the rents, issues and profits -thereof to her own use, and with full power to convey or mortgage it by a deed in which her husband united. It cannot be said, therefore, that the rents collected, if any, from these two pieces of property by I). D. McGonville were received by him in trust for his wife, and unless the evidence shows that the money collected by him from this source was to be returned to her under some contemporaneous contract or agreement to that effect, the wife could not require repayment of it to her.

Where the husband collects and uses the wife’s money with her knowledge and consent, the law does not imply a promise of repayment, as would be the case if they were strangers, but presumes that the receipt and use .of her money and her property, or its proceeds, was a gift of them by her to her husband and not a loan. Throckmorton v. Throckmorton, 91 Va. 42, and authorities cited.

Where the husband conveys his property to his wife, the presumption of law is that the conveyance was voluntary, and the burden of proof that it was made upon valuable consideration rests upon those claiming under it. Flynn, &c., v. Jackson, 93 Va. 346.

It appears that about February, 1892, D. D. McConville became very desirous to get out of the business in which he was engaged, and took in with him one W. E. Garbee, with the understanding and expectation that Garbee would ultimately take the entire business off of his hands. .At that time, while the evidence does not show any large indebtedness of McConville as principal, he was surety for B. E. Hughes as guardian, as above stated, for the Brown children, upon a bond in the penalty of $10,000, and it was known by McConville that B. E. Hughes was insolvent. As we have seen, but a short time before the deed to his wife, the building in which he lived and in which his business was conducted was conveyed by him to Garbee and wife, who had been living with him since February, 1892, but the proceeds of that sale were also embraced in the conveyance to his wife.

Appellant, to sustain her contention that the rents specified in the deed in question were collected by her husband with the understanding that he would repay the money or convey his property to her, introduced three witnesses, W. E. Garbee and wife, and one Mrs. D. J. Williams, a niece of appellant. They agree in fixing January 1, 1892, as the time when they first heard of the alleged understanding, but they also say that they heard that it had already existed for some time. All of them say that their information in respect to it was derived from McConville and the appellant; that they frequently heard them speak of it. Hone of them can state the terms of the alleged understanding riiore specifically than that “ she tendered him her means to help him go out of business, with the understanding that he would repay her or deed her his property.” They do not know what sums of money she let him have, when she let him have them, for what purpose they were used, nor what property he was to convey to her.

With reference to the money stated in the deed to be due by McConville to his wife on account of the collection by him of the debt due by James Henderson, the case is different. The proof shows that this debt was secured on Henderson’s property to McConville as trustee for his wife. True, it does not appear just what were the terms of this trust, but it being due to McConville as trustee for his wife, he alone could collect it, and did collect it, and the mere fact that his wife was present when the money was received by him in order that she might unite with her husband in releasing the deed of trust securing it, does not divest the fund of its trust feature. McConville having received it as trustee for her, it was not incumbent upon her to prove a promise or agreement on his part to account to her for it. Equity would have compelled him to do this. But the evidence shows that McConville did not receive from the Henderson” debt $800. The amount he actually received, according to the proof, was $715.29, on the 11th day of August, 1894. For this sum, with interest thereon from August 11, 1894, the deed in question rests upon a valuable consideration, and therefore the decree in so far as it holds to the contrary is erroneous. It will be in this respect reversed, bnt in all other respects affirmed, and the cause remanded to the Corporation Court to be further proceeded in as will appear necessary in accordance with this opinion.

Reversed.  