Keeney v. Good

1. Possession and use of personal property by one indebted is evidence of his ownership, unless it has been sold under judicial process and purchased in for him, or is held by him in.trust. But by the Act of 1848 a married woman may have property in her own right which will not be subject to levy for her husband’s debts. Of such property possession by the husband is no test of title. 2. But to bring the property of a married woman within the protection of the Act of 1848, it is necessary to prove that she owns it,' as being hers before marriage or that she acquired it afterwards and in what way. Mere evidence that she purchased it is not sufficient to give her title — it must be satisfactorily shown that it was paid for with her own separate funds. In the absence of such evidence the presumption is violent that the husband furnished the means of payment. 3. This last rule applies to real as well as personal estate. 4. No mere agreement between husband and wife whether in writing or verbally, will avail as against creditors of the husband without proof that the property belonged to the wife independent of agreement between themselves. 5. An arrangement between a husband and wife that the husband purchase property on her credit and manage it as her agent and pay for it out of its proceeds, will not protect it from his creditors. 6. A suit to recover damages for personal property of the wife sold under execution as the property of the husband, should be brought in the name of the husband and wife for the use of the wife, and not in the name of the wife alone.

Error to the Common Pleas of Cumberland county. This was an action of trespass by Maria Good, a married woman, against Samuel Keeney, D. Smith, and others, for levying and selling twenty hogs, which she alleged belonged to her, and which were sold by Smith, as sheriff, under an execution issued on a judgment obtained in January, 1852, in favor of Keeney, against John M. Good, the husband of the plaintiff. John M. Good, in 1847, was the owner of the real estate on which he and his wife resided. He failed in 1847, and by deed of voluntary assignment for the benefit of creditors, dated the 31st March, 1847, conveyed real estate to assignees who acted in trust, and distributed through an auditor about $13 or $14 in the hundred to Good’s creditors, leaving him largely insolvent, and among his creditors was Samuel Keeney, one of the defendants. The real estate of John M. Good was sold by his assignees at public sale to Jacob Rheem for $1100, and by him sold to Maria Good, the defendant in error, on 16th October, 1848, for $1500, $50 to be paid in hand, and the balance in annual payments of $241.60, with interest. She gave the $50 to Rheem, but where she got it or how it was obtained was not shown on her part; but on the part of the defendants it was proved that in 1844 she got $50 from her mother. It was not shown that she had received in her own right any more money. After this alleged purchase by her was made, Good and his wife entered into an agreement, under seal, by which she appointed him her agent to carry on the distillery and the farm in her name, for which she agreed to pay him $20 per month for his services. The distillery was carried on, and stock was purchased, whiskey made and sold, and various payments made on account of the real estate, two of the instalments remaining unpaid to Rheem. A witness on part of plaintiff testified that seventeen at least of the twenty hogs sold by the sheriff, had been purchased by Good, as agent of his wife. That he knew that Good was doing business for his wife. Another witness testified that in January, 1852, Good purchased grain from him; that he charged it to him as agent; that he credited him on the strength of being the agent of his wife. Due-bill was given, signed by him as agent. Several of the witnesses, produced on the part of the defence, testified that after the purchase from Rheem, they transacted business with Good, and did not understand from him that he was acting as agent of his wife. One of them, however, Kauffman, testified that he worked at the distillery for fourteen months; that the business was done in Good’s name ; that he was hired by Good and paid by him; that he received some money from the wife on account of his wages. He further testified, under objection, that (food told him, whilst he was living there, that he was doing business for his wife. That he quit work there in 1851. That he had got small sums from Mrs. Good. A policy of insurance, dated 16th July, 1849, was taken by Good as agent of his wife. On the part of the plaintiff, points as follows were submitted : 1. That upon the insolvency of a husband it is not unlawful that he should become the agent of his wife in the transaction of business, either upon her own capital or that furnished or intrusted to her by others. 2. And in this case, if Maria Good purchased the real estate upon her own credit, for the purpose of carrying on the business of distilling, and her husband John Good carried it on as her agent, and thereby the means of paying for the property were earned, it was a legal and rightful appropriation of the means and not fraudulent. 3. If the facts be as stated in the first and second points, and the hogs, the value of which is the subject of this suit, were purchased by and in the name and upon the credit of Maria Good, it was a lawful transaction; and the fact that they were paid for by the labor and exertions of John Good, her husband, acting as her agent, does not make it less so. On the part of the defendants was submitted a point as follows :— The plaintiff claims to be the owner of the property charged in the declaration to have been taken away, by purchase during her coverture and after the insolvency of her husband. Under such circumstances she must show by evidence which does not admit of a reasonable doubt, that she bought it with her own money, and paid for it with funds which were not furnished by her husband. No such evidence has been given in this case. The plaintiff therefore is not entitled to recover, and the verdict should be for the defendants. Graham, J., answered in the affirmative the points submitted on the part of the plaintiff. As to the defendant’s point, he said,. “ We answer the first part of this point in the affirmative. The plaintiff must show by evidence which does not admit of a reasonable doubt that she bought the property with her own money, and paid for it with funds which were not furnished by her husband; but we decline saying to you that there is no such evidence in this case, and that therefore the plaintiffs cannot recover.” He added: “ You will inquire whether the agency was a fair bond fide transaction, entered into between the husband and wife for the purpose of enabling an insolvent man to support his wife and family. If it was, and if Mrs. Good paid the fifty dollars, hand money on the purchase of the real estate, out of her own means not furnished to her by her husband, and if the balance which has been paid on the real estate and the price of the hogs bought was made out of the business conducted honestly and fairly by her husband for the object stated, then the plaintiff may recover; but you must be satisfied of these facts by clear, satisfactory, and undoubted evidence on the part of the plaintiff. “ On the contrary, if the agency of the husband was merely colourable; if the arrangement was entered into to enable the husband to secure his property from his creditors, with an understanding that the property was his and not his wife’s, then the law would not lend its sanction to such arrangement, and the defendants would be entitled to your verdict.” Verdict was rendered for plaintiff for $247.24. Error was assigned: 1st. To the admission of the evidence of Kauffman. 2d. To the answer to the 2d and 3d points of plaintiff. 3d. In not answering affirmatively the points of defendants. 4th. In submitting to the jury as a question of fact to be determined by them, without any evidence in the case to support it, whether these hogs were purchased and paid for by Mrs. Good with her own money independent of her husband. 5th. In saying to the jury that “ although no action could be brought against Mrs. Good on a note signed in this way, she would be liable in another form of action for the amount, if the purchase was made by her husband, as her agent, and she received the property thus purchased, or the benefit of it.” 6th. In submitting to the jury as a question of fact to be determined by them, whether the agency of John M. Good for Maria Good was a fair and bond fide transaction, &c. In the Act of 11th April, 1848, it is inter alia provided, “ Every species and description of property, whether consisting of real, personal, or mixed, which may be owned or belong to any single woman, shall continue to be the prbperty of such woman as fully after her marriage as before; and all such property, of whatever name or kind, which shall accrue to any married woman during coverture by will, descent; deed of conveyance or otherwise, shall be owned, used, and enjoyed by such married woman as her own separate property; and-the said property, whether owned by her before marriage, or which shall accrue to her afterwards, shall not be subject to levy and execution for the debts or liabilities of her husband, nor shall such property be sold, conveyed, mortgaged, transferred, or in any manner encumbered by her husband, without her written consent first had and obtained, and duly acknowledged, &c. Provided that her said husband shall not be liable for the debts of the wife contracted before marriage. Provided, that nothing in this Act shall be construed to protect the property of such married woman from liability for debts contracted by herself, or in her name by any person authorized so to do, or from levy and execution on any judgment that may be recovered against a husband for the torts of his wife, and in such case execution shall be first had against the property of the wife.”