We are as fully aware now, as we were when we wrote the opinion in Lambrecht v. Patten, 15 Mont. 260, that money transactions between husband and wife, when creditors of the husband are concerned, should be ' scrutinized very carefully, lest the intimate relations of such persons should be the convenient means of working a fraud against creditors. The case before us seems to be, perhaps, somewhat a close one, and has received the careful consideration of this court, as well as that of the court below. The jury found (and the court adopted the findings in this respect) t$D facts which are not now questioned: (1) That on October 10, 1890, when Frederick H. Shepherd bought the real estate in question, and had it deeded to his wife, he was insolvent. (2) At that same time Frederick H. Shepherd was honestly indebted to his wife. The court added to this finding that the debt from Frederick *29H. Shepherd to his wife was in a larger suni than the price paid for the real estate. This finding is amply sustained by the testimony. The Shepherds’ testimony as to this was very much in detail as to the items and dates and memoranda and vouchers. We are clearly of opinion that this finding cannot be now disturbed.
We next examine the third finding of the jury in connection with the fourth finding of the court. The court’s finding set aside that of the jury on this subject. The action of the court in this respect cannot be questioned. Both the Shepherds testified positively that the purchase by Frederick H. Shepherd of the real estate from Talent for $6,500, and the deed of the same to Flora E. Shepherd, was in full payment of the debt owing from the husband to the wife. There was not a syllable of testimony to the contrary The jury arbitrarily disbelieved the Shepherds. The court, on the other hand, believed them. There is nothing whatever in the case by which we can set aside the finding of the court in this respect. Thus we have the third fact in the case.
We now come to the fifth finding of the jury and the first paragraph of the sixth finding by the court. That the court was right in this follows from the view we have just expressed as to the third fact established. Thus we have the fourth fact in the case, namely, that the purchase of the real estate by Frederick H. Shepherd for Flora E. Shepherd, was for a valuable consideration.
We next observe the sixth finding by the jury and the latter part of the sixth finding by the court, — that is, the court found, contrary to the finding of the jury, as follows: That the deed from Talent to Mrs. Shepherd was not taken in her name with the intent on the part of Frederick H. Shepherd and Flora E. Shepherd to defraud the creditors of Frederick H. Shepherd.
To recapitulate up to this point, we may state the situation as follows: Frederick. H. Shepherd, being insolvent, and owing both the bank and his wife, paid his debt to his wife m *30full by delivering to' her property of less value than the amount of said debt, which property he obtained by money drawn from the bank. Under these established facts, and in consideration of the further facts in the case, which we will note below, must the district court be reversed in finding that the deed from Talent to Flora E. Shepherd was not taken in her name with ' the intent by the Shepherds to defraud the bank?
Mr. Shepherd consulted with the bank’s cashier as to purchasing the real estate in question, which was a residence and a home. He did not tell the cashier that the deed was to be made to his wife. He owed the bank §7,000 when he bought the house. He had §11,000 worth of ore on his platform. The payment on account of the house of §á,000 ran his overdraft to §11,000. We speak in round numbers in giving these figures. The bank advanced the §á,000 which was paid on the house. The bank people afterwards ascertained that the deed of the house was made to Mrs. Shepherd. It does not appear just when the bank cashier ascertained this fact. He himself, as a witness, did not state. The deed to Mrs. Shepherd was dated October 10, 1890. The bank commenced its action against Shepherd December 9, 1891. Fourteen months elapsed between these dates. Some time' during this period of lá months the bank’s cashier ascertained that the deed had been made to Mrs. Shepherd. When he became aware of this fact he did not vigorously, or at all, protest to Mr. Shepherd as to his conduct. He simply spoke to Mr. Shepherd about it, and asked why he had the deed made to his wife. He did not then sue Shepherd. He did not demand or ask from Shepherd that he procure for the bank security upon the real estate for the overdraft. He took no step to subject the real estate to the bank’s claim until lá months after the deed was made, and until at least a considerable time after he knew that the deed was made to the wife. He allowed Shepherd’s overdraft to continue at the bank, and to rise and fall in the course of business, and to increase at one time to the sum of §13,000, which was §2,000 more than it was after Shepherd had made his first *31payment on the house. While these facts may not have satisfied the district court that the deed of the house was made to Mrs. Shepherd with the bank’s consent, yet they did tend to show to that court that the officers of the bank did not look upon the transaction as a fraud upon the bank. If the bank had at once, upon the discovery that the deed was made to Mrs. Shepherd, closed Mr. Shepherd’s overdraft account, instead of allowing it to increase, and had sued him, and sought to subject the real estate to the payment of their claim, the district court would have had a different showing of a claim by the bank of a fraud by the Shepherds. Under these circumstances, the district court had evidence which tended to show that the bank did not regard the Shepherd transaction as fraudulent until Shepherd had closed his business in Butte by a sudden departure therefrom.
We will now examine for.a moment Mrs. Shepherd’s relation to the transaction. She testified that Shepherd always promised to pay his debts to her when he could, or when he had something ‘ ‘to the good, ’ ’ as they both expressed it. Now, what was the situation, from Mrs. Shepherd’s point of view, on October 10, 1890? On that date Shepherd owed the bank $7,000, and had $11,000 worth of ore. Mrs. Shepherd testified that she considered him $4,000 “to the good” at that time; and it is to be observed that $4,000 is the amount which Shepherd then put into the payment on the house. We cannot say that the district court erred in holding, under these facts, that ' there was not a fraudulent design between Mr. and Mrs. Shepherd. All the witnesses to the whole business were before the district court, — both of the Shepherds and the cashier of the bank, who attended to all of the business of the bank, — and also the memoranda and vouchers which Mrs. Shepherd produced.
Frederick Shepherd’s situation on October 10, 1890, was this: He was insolvent, as found by the court; he was overdrawn at the bank $7,000, and owed his wife $8,000, without counting interest; he had $11,000 in ore as assets. Under *32these circumstances he paid one creditor rather than another. This one may do. Of these two creditors, his wife was pressing for a settlement, and the other creditor, the bank, was not so pressing, but, on the contrary, was extending his credit, and did later extend it $2,000 more than'the aggregate sum of $7,000 and $1,000. The creditor, the wife, agreed, in consideration of the delivery to her of the $6,500 piece of property, to cancel a debt which amounted to $8,000, without counting a large amount of interest. That was an advantageous settlement for Frederick Shepherd. That creditor — -the wife — was demanding a settlement, and was offering this large discount. The other creditor, the bank, was not demanding a settlement. Shepherd paid the importunate creditor, and did not pay the lenient one. If the creditor the -wife had been any other than a wife, we think that the transaction would never have been questioned by any one.
We said in Lambrecht v. Patten, 15 Mont. 260: “It is not fraud per se for a husband to pay his wife a debt which he honestly owes her. ’ ’ In the case at bar the district court was evidently of opinion that it must construe the payment to the wife as fraud per se, or not fraud at all. It certainly was not fraud per se. We can concede that the facts in this case, at first sight, demanded a close scrutiny from the district court. We think they were given a very close scrutiny. The court held the case five weeks after the trial before it made its findings. The court had had the witnesses before it, and the memoranda-and vouchers and papers which had" been produced. We cannot say that the district court did not wisely exercise its discretion, in view of all the facts. On general principles it is not as strong a case for affirmance when the jury finds one way and the court sets aside the findings and reaches an opposite conclusion, as it would be if the jury had found for the plaintiff, and the court had adopted that finding, or if the court had made the findings without a jury. But in this case, as we have observed above, some of the findings of the jury which the court set aside were absolutely and clearly against the evi*33dence; and, taking the findings wbicb the court finally adopted, we are of opinion that the evidence to sustain them is sufficient to prevent this court from disturbing the discretion exercised below.
The judgment'is therefore affirmed.
Affirmed.
Hunt, J., concurs.