dissenting:
I regret I will have to dissent in this case. It was a suit to set aside a deed of conveyance from a husband to his wife by virtue of section 5185, Code of 1919.
In the ease of Battle v. Rock, 144 Va. 1, 131 S. E. 344, Judge Burks, one of the revisors of the Code, has laid down the rules of law governing such cases since husband and-wife have been permitted to. testify. It should be noted that interest was the reason of their disqualification formerly.
The reason of the statute is thus stated therein in substance: “The principle upon which voluntary conveyances are held void as to existing creditors is that a man shall be just before he is generous, but it is as much his duty to be just to his wife as to other persons.”
The rule of evidence is thus stated: “In a contest *793• between the creditors of an insolvent husband and the wife over a conveyance from the husband to his wife, the presumptions are in favor of the creditors and not of the wife, and the burden is upon the wife to show by clear and satisfactory evidence the bona fides of the transaction.”
As to the matter of corroboration, prior to the adoption of the Code of 1919, neither the husband nor wife could testify in a suit by creditors of the husband to set aside a deed of the husband to the wife as in fraud of creditors, but now both are fully competent, and the case is not within the purview of section 6209 of the Code of 1919, requiring corroboration. The former presumptions were not removed, but husband and wife were no longer disqualified to testify as to the facts of the transaction.
Let us see, then, the legal definition of presumption: “A rule of law that courts and judges shall draw a particular inference from a particular fact or from particular evidence, unless and until the truth of such inference is disproved.” Ulrich v. Ulrich, 136 N. Y. 120, 32 N. E. 606, 18 L. R. A. 37.
What are the facts presumed in this case, and what is the truth ás shown by the evidence?
1st. That the conveyance was voluntary. The uncontradicted evidence shows that the husband was a farmer and store keeper; that the wife had a separate estate and earned money; that she from time to time gave him checks, paid his fertilizer bills, and his store bills to the amount of over $2,000.00. She was endorser upon his paper in bank, and before this suit gave a deed of trust upon the land conveyed to her, that was the subject of suit, and another tract that he had conveyed to her for valuable consideration in 1918. It would seem that the inference that the deed was voluntary has been annihilated.
*7942nd. But it is said, that where a husband uses his wife’s money it is presumed to be a gift and not a loan, and there must be a contemporaneous promise at the time to repay. Sledge v. Reed, 112 Va. 202, 70 S. E. 523, is cited as authority to sustain this proposition of law. This is certainly the law now as it was then, but at the time that case was decided neither husband nor wife could testify. The wife was in business for herself—kept an account on her books against her husband—-the books were admitted in evidence over objection—the court held it was unnecessary to pass upon the admissibility of the account, as the wife had not shown a contemporaneous promise to pay the account. In short, their relation prevented an implied promise to pay the account.
In the case at bar, both husband and wife testified that the various advances were loans. I do not see what more they could have done. The word loan signifies a debt and implies a promise to repay, and indulgence in collection by the wife cannot justify disbelief of their truthfulness, when it is not contradicted by any evidence or their veracity impeached by cross-examination or proof of bad reputation.
If the creditors had proceeded in bankruptcy the wife certainly could have proven her debts. He merely gave her preference over his other creditors as he had the right to do under our law. In the language of Judge Burks, “it was as much his duty to be just to his wife as to other persons.”
The Carver Case cited in the opinion, upon its facts and presumptions was stronger in favor of the creditors than this, but the wife’s-testimony on the essential facts repelled the presumptions. It is more of an authority for reversal of this case than its affirmation, in my judgment.