Sixbee v. Bowen

Mr. Justice Sterrett delivered the opinion of the court, [152] The testimony in this case presented questions of fact which should have been submitted to the jury. The claim of the beneficial plaintiff to the property which was the subject of the alleged trespass was based on a purchase by her from Royal Rose. Testimony was introduced for the purpose of showing that in 1859, Sixbee and Daggett, husband and brother of the plaintiff, jointly owned certain personal property which was sold on execution against them and purchased by Rose, who agreed to sell and afterwards did transfer the same, or greater part therbof, to the plaintiff, Mrs. Sixbee, for the consideration of $90, which was subsequently paid by her; that at the time of the purchase from Rose she was possessed of a separate estate, inherited from her father; that she continued to hold, use and enjoy the property so purchased, and the increase and proceeds thereof, keeping and making use of the same, for the most part, on her own land, until the defendants, in 1874, committed the alleged trespass by seizing the property in controversy, which at that time represented the property she purchased from Rose; that a portion of the purchase-money paid by her was the proceeds of bark cut and taken from her land, and the residue was derived from the sale or exchange of a portion of the property purchased as above stated, and that no part of the money was furnished by her husband. The testimony tended to prove these and other facts, and it was for the jury to determine, from all the evidence, whether the property was purchased by Rose, and in good faith sold and transferred to her upon the credit of her separate estate, and whether she paid the consideration with money of her. own not in any manner furnished by her husband. If these questions had been submitted to the jury and determined in her favor, she would have been entitled to a verdict for such damages as she sustained by reason of the seizure and sale of the property. The fact that her husband assisted in arranging the purchase of the property, and afterwards in disposing of a part thereof, cannot impair her right, if in so doing he was acting as her agent. It was shown that he had been sold out by the sheriff, and was probably insolvent at the time, and both husband and wife had testified positively that in negotiating with Rose, and afterwards in exchanging a part of the property, he acted not for himself but for her. It has been repeatedly held .that when a married woman, who has a separate estate of her own, buys property on the credit of such estate, she is entitled to claim and hold it as her own against the creditors of her husband. She is not precluded from buying on credit, but it is incumbent on her to show that her separate estate was the foundation of the credit: Brown v. Pendleton, 10 P. F. Smith 419; Seeds v. Kahler, 26 Id. 262. In the former case, it is said, “ the broad distinction has been preserved between a wife’s credit, founded on her own estate and its product, and a credit [153] founded on nothing but her mere promise, or upon earnings that belong to her husband.” The fact that the note which she gave for part of the consideration was not legally binding on her or her separate estate, is of no consequence. If Eose sold the property to her on the credit of her estate, relying on it for payment, it was a matter of no consequence, so far as her title was concerned, whether he took such a security as might have been enforced against her separate estate or not. If the purchase was as she claims, her title was complete even before payment, and there was nothing to prevent her from disposing of a part of the property thus acquired, and using the proceeds to pay Eose or any one else to whom she was indebted. Judgment reversed, and a venire facias de novo awarded.