Wells v. L. N. Smith & Co.

McCay, Judge. We see no reason why a married woman who has a separate estate, may not make her husband her agent He may make her his agent. He may be her trustee: Code, section 1759. We think the charge of the court was entirely too [264] sweeping. Without doubt, if the wife let the husband have her money, and he bought property with it, in his own name, a purchaser from him, without notice, would be protected. But a creditor, unless he gives credit on the faith of the property, does not stand in the same situation. No property is, or ought to be, subject to a man’s debts, unless it be his, or unless the true owner permits him to act as to it in such a way as to entrap others to give credit on it, and then it is subject, not because it is hisj but by reason of the equity which arises in favor of the purchaser or creditor, who has been allowed to be deceived by the negligence or fraud of the true owner. There seems to be nothing in the evidence to show that this property is subject. And as the jury must have acted on this charge, erroneous as it was, there ought to be a new trial. Judgment reversed.