Hess v. Brown

Mr. Justice Clark delivered the opinion of the court January 4th, 1886. It is not denied that the - sheriff’s sale, which was made of the personal goods and estate of C. Otto Hess, in August, 1875, was a bona fide and valid sale. The levy was upon the lease of two ice ponds, ice houses, etc., each with an outfit for marketing the ice, consisting of horses, harness, wagons, etc. At the sale, the lease of Chartiers creek, with-a horse and wagon and some twelve hundred to fifteen hundred tons of ice, were purchased by Felix X. Lang, who transferred his purchase to George C. Hess, a brother of the execution debtor. The similar establishment and outfit, at East Liberty, were purchased by Thomas McCoy, who, being in the fish and oyster business in the city of Pittsburgh, turned over his purchase to Catharine Hess; McCoy to have as much ice as he wanted in his business during the year. George C. and Catharine Hess then [128] carried on the business together until in the fall of the same year, when George C. also transferred his purchase to Catharine for the sum of $50. McCoy took as much ice from the ice houses as he wanted, sometimes taking as much as eight hundred pounds in a single day; in the aggregate, about $500 worth of the ice during the year. The plaintiffs below contend, that as Catharine Hess has not shown that she had any separate estate, or means of her own, the transfer to her by McCoy was in legal effect a transfer to the husband, as respects his creditors. It is certainly true, that in Pennsylvania, a married woman cannot buy personal estate upon credit, unless she is the owner of a separate estate, .in which case she contracts upon the credit of such estate. If she purchases property with borrowed money or on credit, her husband’s creditors may seize aiid sell it as his : Pier v. Siegle, 15 W. N. C., 480. That she had means is not -enough; she must prove affirmatively that her means paid for it, or that she came by it otherwise independently of her husband : Winter v. Walter, 37 Pa. St., 155. So, also, property bought by a married woman upon her individual credit, and subsequently paid for solely with the profits of business in which she engages therewith, is to be regarded as the property of her husband, and subject to execution by his judgment creditors: Leinbach v. Templin, 105 Pa. St., 522; Keeney v. Good, 21 Pa. St., 349. But did McCoy actually sell the establishment at East Liberty to Mrs. Hess, or did he bestow it upon her, subject to a reservation in his own favor ? The transaction is not very fully developed in the testimony; a more detailed and particular statement of the facts may, perhaps, put that matter beyond doubt, but as the case is now presented the true nature of the transaction is certainly somewhat indistinct. If Thomas McCoy, after his purchase, chose to make a gift of the goods to Mrs. Hess, with a reservation of such part of the ice as he might require for use in his business during the year, he had a right to do so, and Mrs. Hess had an undoubted right to receive them as a giff, and to hold them as her own, not only as against her husband, but as against his creditors, subject only to the reservation. For certainly a judgment creditor, purchasing his debtor’s property at a bona fide sheriff’s sale, may convey it to the debtor’s wife as a gratuity, with like effect as to any other person Winch v. James, 68 Pa. St., 297, and she would be entitled by the statute to use, own and enjoy it to such extent as is consistent with its nature. She may trade with it, purchase other goods with its proceeds, and-hold all against the husband’s creditors: Wieman v. Anderson, 42 Pa. St., 311. [129] What was the real character of the transaction, as we have said, is left, perhaps, in some degree of uncertainty under the evidence; the language of the witnesses is to some extent equivocal. If there was no agreement upon the part of Mrs. Hess to pay McCoy any specific sum, or to deliver to him ice in any quantity or amount, definite or indefinite; if the ice' and outfit were a gift, and no personal obligation was assumed for the price, but McCoy simply reserved the right to take as much of the ice as he wanted from time to time during the year, in his business, and did take of it as he needed, the technical relation of debtor and creditor would not subsist between them. The reservation, if there was one, could not form the consideration of a contractor convert that which was intended as a gift or gratuity into a sale: Riegel v. Wooley, 1 Weekly Notes, 310 is somewhat analogo'us in principle. In that case, Bedford made a gift of the stock in a store to his married sister, Mrs. Wooley, requesting her, out of the proceeds, to pay off some of Bedford’s outstanding notes, which subsequently she did. This court said in that case' that the question was-properly submitted to the jury, and that the verdict settled the fact that Bedford made a gift and not a sale to his sister; that the provision that certain debts should be paid out of the proceeds of the goods, being found to be a mere condition attached to the gift, by which so much was devoted to the payment of these debts of the donor, did not make the gift of the remainder a sale, but that the transaction was simply a gift, subject to an appropriation of a certain portion to others. The learned court, however, seems to have assumed that the transaction, in fact, was otherwise than we have intimated it may have been; that is to say, that it was a purchase by a feme covert, upon her own credit, without any separate estate to support it. We think the cause should have been submitted to the jury, under proper instructions, to determine from the oral proofs the true nature of the transaction, according to the meaning and intention of the parties. We express no opinion upon the evidence; as the cause goes back for another trial, it is better that we should not. Upon this question, however, the determination of the cause would seem to us in great measure to depend. If the transfer by McCoy was a gift and not a sale upon credit, Mrs. Hess became thereby the owner of a separate estate, which, if found to be reasonably proportionate, would support her purchase of the interest of George C. Hess in the establishment at Char-tiers Creek; and these interests conjoined might invest her with an estate in personalty, to which her subsequent purchase of the property taken in execution might be satisfactorily [130] traced, and by which her alleged business transactions and dealings, on her own account, might be fully explained. If the property which she claimed prior to the decree, under which she was declared a feme sole trader, was the property of her husband, it is difficult to see how she acquired the means to purchase the property, by which she conducted business afterwards. She does not pretend to have procured it upon her credit as a feme sole trader, nor even upon money borrowed upon that credit, and it is not suggested that she had any other source of income independently of her husband. She says, in a general way, that the money was made by teaming, but with whose team? If the horses and wagon were,-in fact, the property of her husband, in respect of his creditors, the mere employment of a driver, and the management of the business, by her, would not gAe her title to the earnings : Fry v. Ray, 34 Leg. Int., 214. As we said in Lienbach v. Templin, supra, it was not the intention of the Legislature, to dispense with the presumptions, which ordinarily and of necessity arise, in favor of creditors, in transactions between husband' and wife, affecting the ownership of property in the wife’s name. The judgment is reversed, and a venire facias ' de novo awarded.