CHARLESTON.

#### First National Bank of Jefferson &c., v. Harris, Trustee, et *al.*

Submitted June 4, 1904

Decided November 29, 1904.

1. Husband and *Wife.*— What *suffcient proof of indebtedness.*

Tire claim of a married woman against her husband, unless impeached for fraud is subject to the- same rules of proof as any other debt against h-im, and she is not bound to show affirmatively in absence of any allegation to the contrary that such debt is free from fraud, (p 346).

2. Exception to Commissioner's *Report*— Effect *of Same.*

An exception to a' commissioner’s report on the grounds that the evidence of an insolvent husband is insufficient to sustain •his wife’s claim against his estate in the absence of any allegation impeaching such claim for fraud, is an exception to the competency of the husband as a witness in behalf of his wife, and should be overruled. Section 22, chapter 130, Code. (pp. 346, 347).

Appeal from Circuit Court, Jefferson County.

Bill by the Hirst National Bank of Jefferson against George Harris and others. Decree for defendants, and plaintiff appeals.

*Affirmed.*

Joseph Teaphell and T. C. Geeeee, for appellant.

B. D. Gibsoh, for appellees.

Dert, Jhdge:

‘ Appeal of the Hirst National Bank of Jefferson, &c., from a decree of the circuit court of Jlffeison county in favor of Mary E„ Davis. The Hirst National Bank of Jefferson filed its bill in the circuit court of Jefferson county attacking a deed o’f trust executed by Albert H. Davis, insolvent, conveying all his property in trust, to secure his wife Mary E. Davis, to the amount of $3,500.00, evidenced by notes, as giving an unlawful preference to the various preferred creditors named, and praying that such trust be held for the benefit of all the creditors of the grantor, and that the proceeds thereof be *pro rated*among all the creditors of the grantor. No answers were filed, the bill *346was taken for confessed and the conrt referred the case to a commissioner to ascertain and report the indebtedness of the-insolvent, and the property liable to the payment of the same. On the filing of the report, the following exception was endorsed thereon: “The auditing of the claim or debt in favor of Mary E. Davis in class No. 2 of this report, for $3,500.00 and $931.00 interest, is excepted to, because said claim is not sustained by the evidence, and said claim is excepted to and claim should not be allowed, as the testimony of a husband in behalf of claim of his wife against the husband an insolvent. B. D. Gibson, T. C. Green, attorneys for creditor.” On the hearing-of such exception, the following decree was entered: "The court not now passing upon the said exception, but being of the opinion that an opportunity should be afforded the ¿aid creditor, Mary E. Davis, to submit further testimony in support of her claim, if any she have, doth adjudge, order and decree that this-caíase be recommitted to Com’r Cleon Moore, with instructions'to enquire further into said matters of the demand of Mary E. Davis and to certify such evidence as may be produced before-him, and make report to the next term of the court.”

Further depositions were taken and on fin'al hearing the court overruled the exception and allowed the claim, of Mary E. Davis-as a just debt, entitled to participation under the deed of trust.

The appellants here insist that the court erred in allowing further time to Mary E. Davis to sustain her claim by proof The bill does not attack the claim of Mrs. Davis as in anywise-fraudulent, nor in any manner invalid, nor is there any petition or other pleading in the caiise doing so. Hence the commissioner had the right to report the debt as admitted, without other proof than the pote and the deed of trust, which in the absence of all allegations to the contrary are certainly sufficient to establish the justness thereof, ^he first time and the only manner in which the claim of Mrs. Davis is attacked’ is by the exception to the commissioner’s report, and after such attack was made, if necessary Mrs. Davis was entitled to-have an opportunity to meet and repel it, and if not necessary the exceptors have no grounds of complaint.

The exception, however, does not attack Mrs. Davis’ claim as-fraudulent as to creditors, but only asserts that the claim should not be allowed on the testimony of her insolvent husband. Iff *347the claim had in any proper proceeding been impeached for fraud., such exception might have weight. A husband by statute is made a competent witness in behalf of his wife. Section-22, chapter 130, Code. And in the absence of any allegations-of fraud hie admissions on oath'are sufficient to establish the justice of her claim against his property. A husband may confess a judgment in favor of his wife which will be valid to-bind -his estate, unless successfully impeached for fraud. *Bennett*v. *Bennett,*37 *W.*Va. 396. The appellants were both plaintiffs in this suit, one by bill and the other by petition, and neither in the bill or petition is Mrs. Davis’ claim attempted to be impeached as fraudulent, and hence both bill and petition must be taken to admit the validity of the same. It is a well established rule that fraud must be alleged, and in the absence of such allegation, the court will not examine the evidence to ascertain whether it discloses a fraudulent transaction as is said by Jj®GE BraNNON in the case of *Bank*v. *Atkinson,*31 W. Va. 209. rule of pleading is that the *alegata et probata*must both exist and correspond and the *probata*can 'perform no-function unless preceded by *allegata.*Matters not charged in the bill or averred in the answer cannot be considered on the hearing. *Hunter’s Executor*v. *Hunter,*10 W. Va. 321.

The exception filed is in no sense sufficient to raise the invalidity of Mrs. Davis’ claim but only goes to the weight or measure of the evidence necessary to sustain such claim in the absence of any allegations impeaching the same. For this purpose the evidence is amply sufficient, and the exception was properly overruled.

'In each of the oases relied upon by appellants, there was 'direct impeachment of the wife’s claim as being fraudulent as to the husband’s creditors. *Miller*v. *Cox,*38 W. Va. 747; *Bank*v. *Atkinson,*32 W. Va. 203; *Zinn*v. *Law,*32 W. Va. 447.

Unless the wife’s claim is impeached as fraudulent, she is not bound to prove affirmatively freedom from fraiid. Until such impeachment is made, she stands on the same footing as any other creditor, and 'the debtors’ note, admission or testimony is sufficient to establish a debt in her favor.

For these reasons the decree is affirmed.

*Affirmed.*