Lochman & Wife v. Brobst

Mr. Justice Green delivered the opinion of the court, April 2d 1883. _ The learned judge of the court below said to the jury in his charge, “ If the Building Association gave Mrs. Lochman credit for the amount of money which they would have had to draw from the sheriff, and which it is admitted on the part of the president they did not draw, but agreed with Mrs. Lochman that they would give her credit upon her own separate estate, they were at liberty to do so, and if she thus consummated the sale it would make a good title in her.” After referring to the testimony on the question whether Mrs. Lochman had a separate estate at the time of the purchase of the property in question, the judge instructed the jury positively that she had a separate estate, and then in the latter part of the charge, recurring to the subject, he said, “ You will in the next place inquire whether the Building Association when they made the arrangement alleged to have been made by the defendant, did give Mrs. Lochman the credit (I refer now to the arrangement by which they agreed not to demand the money they had to receive from the sheriff from him but entered into this contract with Mrs. Lochman) and whether they gave her that credit on the strength of her separate estate. If you find it proved clearly, fully and satisfactorily that they did, then that branch of the case will be decided in favor of Mrs. Lochman, the defendant.” The learned counsel for the plaintiffs in error complain that the court charged the jury “ that a married woman under no circumstances can purchase upon credit,” and then to convict the court of error, they cite the decisions of this court that a married woman may purchase property wholly upon [486] credit if she have a separate estate, and the credit is given upon that estate. We think the complaint is not sustained and the portions of the charge quoted above clearly establish that the question whether the credit was given upon Mrs. Loclnnan’s separate estate was fairly left to the jury and in precise accord with the decisions referred to. Nor did the court charge that it was necessary for a married woman to pledge her own separate estate by mortgage or otherwise, if, in point of fact the credit was given upon the faith of the separate estate, and this also is in conformity to the authorities. It seems very clear to us that the court went quite as far in stating the law upon this subject, as is permitted by..the cases, and Mrs. Lochman was afforded the full benefit of the most advanced doctrine which has been thus far announced. In the statement of the general rule in regard to the acquisition of property by a woman after marriage, as expressed in the plaintiffs’ third point, and in the portions of the charge covered by the ninth and teuth assignments, the court was entirely correct. This doctrine has been held in many cases and we certainly do not mean to abarfdon it yet. In Barringer v. Stiver, 13 Wr. 129, it was well expressed by Mr. Justice Agnew : “We adhere to the settled doctrine, that it is only where the property acquired after marriage has been paid for with her own separate estate, clearly and satisfactorily established, it is hers, and is protected from her husband’s creditors. To suffer a wife to purchase upon credit, is to open a wide door for fraud. Its effect is to throw upon the creditors the burden of proving whose fund afterwards entered into the payment. For starting with title founded on her credit, she can stand upon it, until the husband’s means can be shown to enter into the purchase.” We do not understand the answers to the plaintiff’s fourth point and the defendant’s second point, to be obnoxious to the criticism made upon them by the learned counsel for plaintiffs in error. Evidently what the court meant to say, and in reality did say, was that a purchase by a married woman upon her bare credit, unsupported by a separate estate, would give her no title. This is manifest by the concluding clause of the answer to defendant’s second point: “ The purchase must have been upon the credit of her separate estate.” This is exactly what we said in Sixbee v. Bowen, 10 Norr. 149. “ She is not precluded from buying on credit, but it is incumbent oh her to show that her separate estate was the foundation of her credit.” And in Seeds v. Kahler, 26 P. F. S. 262, it is said, “ It is well settled, that when the wife has a separate estate, and she buys property on the credit of that separate estate, she may7 hold it against the creditors of her husband.” It seems to be contended for the plaintiffs in error that if a [487] married woman purchases real estate and gives a mortgage on it for the whole amount of the purchase money, this will give her a good title, if it is a fact that she has at the time some separate estate of her own. In other words mere proof that she did own separate estate, without showing that credit was given upon it in any way, is sufficient to convert what would otherwise be a void sale into a valid one, as against the husband’s creditors. We do not so understand the decisions. In all of them it is expressly held, that if the property was purchased by the wife on credit, it must have been upon the credit of a separate estate owned hy the wife, in order to protect it against the husband’s creditors. Thus in Bucher v. Ream, P. F. S. 421, we said on p. 426, “ and property purchased by the wife on the credit of her separate estate or by her earnings derived from the management of it, is protected from her husband's creditors: Brown v. Pendleton, 10 P. F. S. 419. But where the wife has no separate estate, she can acquire no separate property with her earnings during coverture. Her earnings belong to her husband and if she purchases property with borrowed money or on credit, it belongs to her husband as it respects his creditors and is liable for his debts.” In Brown v. Pendleton, the goods levied on as the husband’s were purchased by the wife' with money borrowed by her on a mortgage of her separate real estate. She openpd a store with such goods and kept a separate bank account upon which she drew to pay for goods purchased, and she purchased other goods on a short credit with which, mingled with the others, she carried on business, it. was held, the case should have gone to the jury, on the question whether the goods purchased on credit were acquired on the credit of her separate estate and its earnings. Agnew, J., said, “But where she has known property of her own, the credit founded upon it, or the products arising from it, are protected from her husband’s creditors.” That is, there must not only be a separate estate, but there must be a credit founded upon that estate, where the purchase has been upon credit, in order to protect it. The same was held in Silveus’s Ex’rs v. Porter, 24 P. F. S. 448, and in Seeds v. Kahler, 26 P. F. S. 262. In the latter case we said, “ She is not precluded from buying upon credit, provided it be upon the credit of her separate estate. It is incumbent upon her to establish the fact that the purchase was so made, to protect her title against the creditors of her husband.” ... “As already sh’own she had a separate estate: her husband had none. The question then is, was there sufficient evidence to leave to the jury to find whether the mare was purchased for the plaintiff and on the credit of her separate estate?” From this it will be seen that it is not enough to show merely that the wife has a' separate [488] estate, but she must go further and show that the purchase was made upon the credit of that estate. This was precisely the rule which the learned judge of the court below followed in the present case. He told the jury that if the Building Association gave credit to Mrs. Lochman upon her separate estate, in the" arrangement they made with her, she would acquire a good title. The jury found against her, and we think the evidence was such as to justify such a finding. As to the shares of stock in the Building Association, the court left fairly to the jury the question whether the transfer of them by her husband to her was in fraud of creditors or in payment of a debt due to her, and the jury found against her. Certainly this was a question of fact to be determined by the jury. We think the claim of the wife was treated with great fairness by the court; she was allowed full opportunity to bring her case within the most recent rulings in relation to purchases on credit by married women, and she failed because she could not satisfy the jury of the necessary facts to make out lier case. Judgment affirmed.