
    MITCHELL, SURVIVOR, ETC., vs. GEO. SEITZ ET AL.
    Equity.
    No. 2973.
    I. Where a married woman acquired title to real estate wliicli was paid for by money belonging to ber husband, sbe cannot bold said property as against bis creditors.
    II. Where a purchase of real estate is made in the name of a married woman, and there is no proof that sbe has separate means or funds, and the husband is carrying on a successful business and not paying his debts, the presumption is that the purchase was made by funds which he had furnished.
    III. The earnings of a married woman are still the property of the husband, notwithstanding the act of Congress permitting married women to obtain and hold property in this District.
    STATEMENT OF THE CASE.
    This is a judgment-creditor’s bill, filed November 6,1872, by Mitchell, surviving partner of Harper and Mitchell, against George Seitz and Mary E. Seitz, his wife, principal defendants^ and certain other defendants whose rights are not affected by the decree passed in the cause. The bill alleges judgments obtained by plaintiff against George Seitz in 18C8, and in full force from that time to date of filing of bill, and that execution has been issued and returned nulla bona. It further alleges sundry purchases of real estate, made nominally by Mary E. Seitz, and in her name, in 1870 and in October, 1872; and charges specifically that said real estate was purchased really by George Seitz, and was paid for with money earned by him alone, and not by his wife; further, that the said real estate was conveyed to Mary E. Seitz with the fraudulent purpose of thereby hindering and delaying the plaintiff and other judgment-creditors of George Seitz.
    The answer of defendants, George and Mary E. Seitz, denies all fraud, and alleges that both pieces of property embraced in said bill were purchased out of Mary E. Seitz’s “ own means and money — money earned and procured wholly by herself, and not from the said George, nor by or through Mm or his exertions.” How it was earned, or from whom it was procured, is not stated. A general replication was filed to the answers, and testimony was taken by defendants, Seitz and wife, to show that Mrs. Seitz acquired the means of purchasing property by engaging in the business of keeping boarders, who averaged about four in number, and the profits were proved to be but small. No other means of acquisition in Mrs. Seitz were made to appear in the testimony. The interest of the other defendants arose out of certain trust-deeds which need not be stated, as they were held to have been executed in good faith, and were therefore superior in equity to the judgments of complainant.
    On the hearing below, a decree was directed to be entered in favor of the plaintiff, not affecting, however, the rights of the other defendants as already mentioned. From this decree George and Mary E. Seitz appealed to the general term.
    
      Samuel L. Phillips and R. Ross Perry for complainants.
    1. The cardinal rule of equity pleading, “ that a defendant who submits to answer must answer fully,” has never been modified to any greater extent than this, viz, that he need not answer to any matter from a discovery of which he might have protected himself by demurrer or plea. Story’s Eq. Pl., § 847, note 1; Equity Rules, Sup. Court U. S.; Equity Rules, 33, Sup. Court D. C.
    2. Whatever the opinion of the court might have been in regard to the sufficiency of the answer, had the case been set for hearing on bill and answer, it is submitted that, after replication filed and proofs taken on the part of the plaintiff, it was incumbent on the defendants to rebut any evidence tending to establish the fraud charged by the plaintiff. In the absence of such proof, a mere reliance on the denial, in terms of the bill itself, of the facts on which the fraud rested, is suspicious. Such an answer is unsatisfactory, and the presumption is against it, and not in its favor. Clark's Executors vs. Van Riemsdyk, 9 Cranch, 160; Callan vs. Statham, 23 Howard, 477; Parker vs. Phetteplace, 1 Wallace, 684.
    3. Although fraud is not to be presumed, yet positive proof is not required to establish its existence. Circumstances may prove it as conclusively as direct positive testimony. Kempner vs. Churchill, 8 Wallace, 362; Davis vs. Calvert, 5 Gill & Johnson, 303; Curtis vs. Moore, 20 Maryland, 95; Newman vs. Cordell, 43 Barbour, 449; Bullock vs. Narrott, 49 Ill., 62 ; Floyd vs. Goodwin, 8 Yerger, 490; Rogers vs. Hall, 4 Watts, 359; McConiche vs. Sawyer, 12 N. Hamp., 396; Land vs. Jeffries, 5 Ran., 599.
    
      A. G. Riddle and Francis Miller, for George and Mary E. Seitz:
    Where there is no positive proof of fraud, circumstances of suspicion are not enough to ground a decree upon. 3 Atkyns, 536; Conrad vs. Nicoll, 4 Pet., 259; United States vs. Arredando, 6 Pet., 716; Hager vs. Thomson, 1 Black, 91; Clarke vs. White, 12 Pet., 194, 196.
    A defendant shall not be bound to answer any statement or charge in the bill, unless specially and particularly interrogated thereto, &c. Equity Rules, 40 and 43, Sup. Ct. U. S.; Equity Rule, 33, Sup. Ct. D. C.
    The defendant must answer the whole of the statements and charges contained in bill, and all interrogatories legitimately founded upon them. Story’s Eq. Pl., § 847, n.
    Office of an answer twofold. Story’s Eq. Pl., § 850.
    If plaintiff conceives an answer to be insufficient, he may take exceptions to such answer. Story’s Eq. Pl., § 781.
    But after replication, it is too late to object to sufficiency of answer. Story’s Eq. Pl., § 867, 877.
    Answers under oath, if responsive to bill, will prevail, unless overcome by two witnesses, or one witness and corroborating circumstances. Story’s Eq. Pl., § 875 a, and note.
    Interrogating part of bill should be framed with such certainty as to bring out all the facts required by the exigency of the case. Story’s Eq. Pl., § 265.
   Mr Justice Wylie

delivered the opinion of the court:

This is a bill by a judgment-creditor of George Seitz, to subject to execution a house and lot in this city, the title to which is in the name of Mary E. Seitz, wife of the said George. The judgments in question were obtained in 1868. The property in question was purchased, part of it in 1870, and the other part in 1872. The bill charges that it was bought with the money of the husband, and that the deeds were made out in the name of the wife for the purpose of committing a fraud upon the husband’s creditors.

The answer denies all fraud, and alleges that the property was paid for by the wife’s “ own means and money — money earned and procured wholly by herself, and not from the said George, nor by or through him or his exertions.”

Such an answer to such a charge appears to us to be entitled to very small, if any consideration. It is most vague and unsatisfactory, sets up no fact, contains nothing to satisfy the mind upon the subject, does not say how the money was earned or procured, or from what source — only that it was “earned and procured.” As we understand these terms, they mean that Mrs. Seitz by means of her own exertions earned the money during coverture; that it did not come to her by gift, or by bequest, but that in some way, in trade, in keeping boarding-house, or by other such business, she had procured the money with which the property in question was purchased. In this sense, the answer, so far from denying the charge of the bill, amounts to a confession of its truth. For, notwithstanding our recent act permitting married women to obtain and hold property in their own right, the earnings of a married woman are still the property of her husband, as much as they were, at common law.

But, in addition to this, the evidence in the cause establishes the fact beyond all controversy, at least beyond all doubt in our minds, that the property in question was paid for by the money of George Seitz himself.

It is true that Mrs. Seitz performed the duty of a wife, and aided her husband in her own sphere, and that they kept a few boarders, and thus, possibly, some small profits were made. .But these profits, if any, were very insignificant in comparison with the value paid for the property, and, besides, they belonged to the husband.

On the other hand, he was carrying on the business of a baker, with an extensive custom, making money, and not paying his debts.

The decree of special term is affirmed.

Mr. Justice Olin dissenting.  