Lucas Circuit Court.

one for $2,455, each secured by mortgage, were executed on July 1, 1896, about thirty days before the marriage of Herbert and Mary S. Chittenden. At the time of the execution of the last note and mortgage, for $6,500, they had been married about four years. The issue here is entirely between Mary S. Chittenden and Edwin S. Chittenden, the plaintiff, the defendant, Herbert Chittenden, admitting the allegations of the petition. He is in default for answer. The defendant, Mary S. Chittenden, claims that all these notes and mortgages were made by Herbert J. Chittenden to his father without any consideration whatever; and, as she says in her petition, the first three were made for purposes unknown to her. The claims as to the $6,500 note, made in July, 1900, it was made for the purpose of defrauding her in her claim for alimony and for support against her husband, and that, therefore, so far as she is concerned, this mortgage is void; and she claims that the property of Herbert J. Chittenden should be divested of this $6,500 mortgage, and relieved of it, so far as any claim that she may have for alimony is concerned, if the court should find that she is entitled to alimony or had such a claim.

The defendant, Herbert J. Chittenden, and his father, the plaintiff, deny all fraud in the transaction, and claim that the notes and mortgages were made in good faith upon the dates alleged in the pleadings. The first three notes-the two for $1,000 each and the one for $2,455—were made about thirty days before the marriage of Herbert J. and Mary S. Chittenden; they had been engaged to be married for perhaps three or four years prior to their marriage. They lived happily together until April, 1900. There was no trouble of any kind between them. Herbert J. made no complaint to her or to any one as to the conduct of his wife, and she had no reason to suppose that he was unhappy in his marriage relation with her, or dissatisfied, or that he contemplated a separation from her. A day or two before April 18, 1900-the date of the $6,500 note and mortgage Herbert told his wife that it was necessary for him to borrow about $3,000, to raise money to satisfy a claim of an estate for which he had been acting as administrator, and that he could borrow this money of his father, and that it would be necessary for him to give a mortgage to secure this and other indebtedness to his father. She demurred some to signing a mortgage. However, she went to his office soon thereafter, and a paper was drawn, as she testifies, ready for her to sign, which was in fact a deed of all his real estate to his father. She objected to siguing this, and asked him what there would be for her if he transferred his property to his father, in case he died, and he assured her that there was life insurance for her support. But she insisted that a mortgage should be given instead of a deed, if it was necessary to raise this money. So the deed was destroyed and a mortgage drawn, as she supposed, to Edwin S. Chittenden, the father of Herbert. She signed the paper, and it was acknowledged before a notary, and witnessed. The mortgage turned out afterwards to have been given to Isaac S. Baldwin, the brother-inlaw of E. S. Chittenden, and in June following it was assigned by him to Edwin S. Chittenden.

According to the testimony of Baldwin, Edward S. Chittenden and Herbert Chittenden had talked with Baldwin before this and procured his permission to make notes and mortgages in his name, and have them transferred to Edwin S. Chittenden, Herbert J. Chittenden claims to have been indebted to his father at this time in this amount. His father was apparently a surety for him on a note for $3,000, but had not been

Chittenden v. Chittenden.

required to pay it. Edwin S. Chittenden, the father came to Toledo some years ago from Republic, Seneca county, where he had been engaged in business. Selling out there, he came here and claimed to have had some money which he turned over to Herbert from time to time, and he invested it in real estate, and it is claimed that father and son were to divide the profits, and out of these transactions between them it is claimed that this indebtedness grew, aside from this $3,000 note on which it is claimed the father was surety.

As stated, Mrs. Chittenden finally, on April 18, 1900, signed this note for $6,500, which ran for three years, and the mortgage securing it. The mortgage covered their homestead in this city as well as all real estate which Herbert J. Chittenden at that time owned. At the time he asked her to sign the mortgage, their relations were as happy and pleasant, so far as Mrs. Chittenden knew, as they had been during their married life. There was no suggestion or hint to her that there had been any change in his feeling toward her, or that he intended or contemplated any separation from her. Upon his appealing to her to sign this mortgage with him, representing to her that he owed this amount to the estate, she finally consented and signed it. On the following Sunday, four days later, Herbert Chittenden told his wife he had concluded to leave her; that he had made up his mind that he was not happy in his married relation; that he preferred club life, and "preferred not to be tied to one woman," and that he had concluded to leave her and not live with her any longer. The testimony is that this was the first intimation that she had ever had of any feeling of that kind toward her, or any purpose of this kind on his part. She testifies as to the shock and surprise that it was to her, and to her appeals to him to desist from his purpose and to continue to live with her as her husband; that she continued these appeals on the following Monday and Tuesday, but that he refused, and insisted that his purpose was fixed; and on the following Tuesday he did leave her and has never returned to her or lived with her since. She remained in the homestead for a short time, and then went to her parents, who live in Sandusky county, and has since lived with them. On Saturday, the day before he told his wife of this purpose, he told his father, Edwin S. Chittenden, of what he intended to do. The mortgage at that time had not been delivered to Edwin S. Chittenden, but still stood in the name of Isaac S. Baldwin, and was not assigned to Chittenden until June following. The mortgage was left for record at the recorder's office on April 27, 1900, five days after he left his wife, by Herbert J. Chittenden, and the recorder's fees were paid by him.

Was this transaction, under the evidence in the case, a fraud upon Mary S. Chittenden, the wife of Herbert? And can she in a court of equity have this mortgage set aside, so far as her rights are concerned, and her claim as a wife, if she has any, made superior to this mortgage?

The obligation of a husband to his wife is not only at common law an obligation to support and maintain her, but it is fixed in this state by express statute.

Section 3110, Rev. Stat., provides: "The husband must support himself, his wife, and his minor children out of his property or by his labor."

If he is unable to do so, his wife must assist him so far as she is able. The wife, then, has this right under the law as against her husband, for her support and maintenance. She has this right against

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Lucas Circuit Court.

his property, unless the rights of others have intervened so as to exclude her. She is, it may be said, to that extent a creditor of her husband. It is an obligation that she may enforce against him. He is her debtor by virtue of this obligation that rests upon him.

The statutes of the state give her a right upon certain grounds and under certain circumstances to enforce this obligation against him by way of an action for alimony. Section 5702, Rev. Stat., provides the grounds for which alimony may be allowed, and among them, No. 3 is: "Abandonment of the wife without good cause."

The evidence in the case and statements of counsel on both sides in open court show that there were commenced after this separation an action for alimony in Ottawa county, and an action for divorce and alimony in Sandusky county, brought by Mrs. Chittenden against her husband, and those actions are now pending, and the one for divorce and alimony will be tried, it is said, in a very short time. For the purposes of this case we hold that, by reason of these facts-this conduct of Herbert J. Chittenden-his wife is entitled to alimony. How much she is entitled to is not for us to determine, out according to the undisputed facts in the case, she was or April 22, 1900, abandoned by her husband, and told by him that this abandonment would be permanent and that he would never live with her thereafter.

It is contended that she cannot attack these mortgages if they were given for a good consideration to Edwin S. Chittenden; that she voluntarily signed the $6,500 mortgage, and that she cannot now attack it, and that at the time they were sigued she had no claim for alimony, it had not at that time ripened.

It is true that she signed the $6,500 mortgage at the request of her husband, but she signed it for him as her husband. She joined with him in its execution upon his representation to her that this money or a part of it was needed for the purpose mentioned. She signed the mortgage for the purpose of enabling him to raise the money for that purpose; she signed it to aid her husband; she signed it for one with whom she expected to live as his wife for years to come, both of them being under thirty years of age. She signed it with no idea, with no thought, that almost immediately after its execution she would be abandoned by her husband, and told by him that he would never live with her afterwards.

It seems to us that this transaction was and is a fraud upon Mrs. Chittenden; that the concealment from her of his purpose, of his intention, at the time this mortgage was executed, was a fraud upon her; for we find from the evidence that at the time she signed this mortgage at his request, he had then determined to leave his wife as soon as he conveniently could.

And we find further from the evidence, that whether the claims of his father were valid as between him and Herbert or not, that he made this mortgage to his father at that time, or to Baldwin, to be assigned to his father for the purpose of incumbering this property so as to prevent his wife collecting a judgment against him for alimony or for support. His father was not asking him for any specific security. He was not asking for this note or for this mortgage, but on the contrary they were made without his father's knowledge, much less his request. And we hold that Edwin S. Chittenden was bound by this fraud, whether he had actual knowledge of his son's intention or not. We hold that the son was acting in this transaction for his father, as his agent. The evidence discloses that during all of their business transactions out of which it is

Chittenden v. Chittenden.

claimed this indebtedness grew, Herbert did all of the business; he kept all books, made all entries; the money that was turned over to him, if any, by his father, was deposited in the bank in Herbert's name. Whenever he, for any reason, wished to give his father a mortgage or note, he gave it without his father asking for any particular or specific note and mortgage; and this was all done and carried on by Herbert without his father's knowledge. The father was not in any sense an innocent purchaser. He parted with no new consideration for this $6,500 mortgage; he gave up no security that he had. The only change that was made was that Herbert entered upon the books which he kept a credit to himself and a charge to his father when this note and mortgage were executed. If Edwin S. Chittenden took this note and mortgage charged with knowledge of this transaction, he had no better title than Herbert Chittenden would have taken. And we find that this was a fraud upon the rights of the wife, and that her right to support and alimony is of such a character that she may assert her claim as a creditor in this action. We cite Tate v. Tate, 10 Circ. Dec. 321 (19 R. 532), decided in this circuit. The syllabus is:

Where property is deeded to the husband by the wife for merely a nominal consideration, and subsequently, when they had decided to separate, he sells the same for about half its real value, without her knowledge or consent, and for the purpose of depriving her of any rights therein, such sale is fraudulent.

"Alimony allowed the wife is chargeable upon lands in the hands of those who purchased from her husband for an inadequate consideration and with knowledge that the transfer was made in fraud of her rights, to the extent of the difference between the value of the property and the consideration actually paid.

"A conveyance by the wife to her husband of her legal interest in eertain real estate, for merely a nominal consideration, does not preclude her dower right in the property."

In this case the wife had deeded property to her husband for a mere nominal consideration, one dollar, and they having decided to separate, afterwards he conveyed it to another person for very much less its value. The court say on page 323:

"It is conceded that John B. Stuart acted for his wife, the defendant, Kate M. Stuart, and the testimony shows that she herself, as well as her husband, knew all about the trouble between Tate and his wife and their quarrels about the sale of this property, and Mrs. Tate's refusal to join with her husband in conveying it. At the time Tate made this conveyance to Mrs. Stuart, he and his wife had determined to separate, and all the testimony points to the conclusion upon his part to get rid of the property for whatever it would bring him in cash, and so to place the proceeds that none of it might reach his wife; and whether he was drunk or sober at the time he made the conveyance, he carried this intention out to the letter. He did sell it and he did get the money, and he has kept all of it out of the hands of his wife.

"And of this determination to separate and of Tate's intention to place his interest in that property beyond the reach of his wife, both Stuart and Mrs. Stuart had knowledge. Even if Mrs. Stuart was in ignorance of any of these facts, her husband who was acting for her, and whose acts she authorized and ratified, did know them and all of them; and his knowledge was her knowledge."

Lucas Circuit Court.

So we say in this case, so far as Edwin S. Chittenden is concerned, though he was ignorant of these facts, they were known to Herbert J. Chittenden, who was carrying on this transaction and who in all these matters from beginning to end acted as the agent of his father.

It was held by the Supreme Court of this state in Ward v. Ward, 63 Ohio St. 125 [57 N. E. Rep. 1095], that where an engagement of marriage exists between a man and a woman, and he, for the purpose of providing for children by a former marriage, without her knowledge, deeds to them real estate, said deeds being put on record after his death, that that is a fraud upon her right of dower in the property of the man she is about to marry, and that she can assert such right after his death. The Supreme Court held that it was a fraud upon her to make those conveyances without her knowledge, in view of the relation that then existed between them--an engagement of marriage. The syllabus reads:

"A conveyance by a man who has entered into a contract of marriage, which subsequently takes place, of a portion of his land to his sons by a former marriage, without consideration other than love and affection, and without the knowledge or consent of his contemplated wife, is a fraud on her marital rights, and she, at his death, is entitled to dower therein."

In the case at bar, when the $6,500 mortgage was executed these parties were married; it had gone beyond any engagement of marriage.

She, it is true, unlike the woman in Ward v. Ward, supra, knew that this mortgage was being executed, and she herself signed it, but, as we hold, she was induced by fraud to sign and execute this mortgage. She signed it, and was intending to sign for him as his wife, to raise this money for his use, he at the time having formed the purpose to abandon her, which he carried into execution within four days thereafter.

In arriving at this conclusion we have also considered the mortgages that were made before the marriage. It is claimed that they should also be set aside, so far as Mrs. Chittenden's rights are concerned, but we are of opinion that they, having been made four years before this separation, and made before marriage, that the court would not be justified in holding that so far as those mortgages were concerned her claim for alimony should be superior to them. But it is evident that Herbert J. Chittenden before his marriage to Mary S. Chittenden, for some reason, determined to encumber his property to the amount of three or four thousand dollars, and that he did so. The evidence does not show that his father at that time was asking him for any security. He said in his statement to his father concerning the separation that he cared nothing for Mary when he married her, and simply married her as a matter of duty. Whether before his marriage he was looking forward to a time when he might be expected to respond in alimony and was guarding against that by making these mortgages before he entered into the marriage relation, is not as clear, perhaps, as it might be; but in view of his conduct after their marriage, it would appear that he probably had that in view at that time.

There is another transaction which in our judgment throws some light upon his conduct here and his purpose in this transaction. Shortly after their marriage, August 5, 1896 (they were married July 30), he made her a deed of the home in which they lived, it being a desire on her part-he calls it a whim-that the home might be in her name. This is a portion of the property covered by the $6,500 mortgage.