McDuff v. McDuff

BRITTAIN, J.

The defendant, the husband of the plaintiff, appeals from a judgment in ejectment.

The parties were married in 1885. Their domestic relations were pleasant until 1907, from which time until 1915 there was at least lack of harmony. In the month of May, 1915, the wife left the family dwelling place and later, in the same year, sued for separate maintenance. Judgment in that ease was in favor of the husband.

The property involved in this action was purchased in 1909, the first installment of the purchase price, amounting to three hundred dollars, having been made up of. one hundred dollars delivered by the husband to the wife and two hundred dollars borrowed by her from her mother. There was a mortgage for the remainder of the purchase price, $3,450, which was subsequently paid by the husband from the proceeds of a sale of his separate property in the state of Kansas. He also paid taxes. The deed to the property was made to the wife alone. The husband asserted that he did not learn the deed was so made until he paid

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off the mortgage debt in 1-913. The wife testified that he saw the deed on the day the deed and mortgage were made. She signed the mortgage first, and she testified that at that time her husband said, “ ‘Well, that is the first time my name didn’t go on the paper first,’ he says, ‘This time this is yours.’ ” Another witness testified that during the negotiations for the sale to the husband of other property, in December, 1909, when the wife was not present, the appellant stated that “he had just bought a piece of property and paid three thousand six hundred dollars for it and given it to his wife.” The wife further testified that when the mortgage was paid off her husband brought the deed to her, saying, “Now, this is the deed to your place. I have paid every cent of the debt on that for you, and now I am giving it to you for your own. . . . Nobody can ever take your place from you for my debts. If I should make a bad deal you will never lose your home, you will have the deed to ,your own.” The husband denied many of these statements. The judge who tried the case saw the witnesses and heard their testimony. [1] It was clearly conflicting, and in such a case the appellate court is bound by the action of the trial court.