Gibson v. Kimmit

Mr. Justice Vickers delivered the opinion of the court. This is an appeal from a judgment of the Circuit Court of Peoria, county, finding appellee to be the owner of 200 yards of awning cloth which had been levied on by appellant, a constable, by virtue of an execution issued on a judgment against Frank M. Kimmit, the husband of appellee-, Mrs. Charlotte M. Kimmit. Frank M. Kimmit was engaged in the tent and awning business prior to 1893. He executed a chattel mortgage on his stock and machinery to Mrs. Annie K. Bheinhardt, who foreclosed the chattel mortgage and bought in the property at the sale. Mrs. Bheinhardt carried on the business for a year and a half or two years, when she sold the entire stock and tools to Mrs. C. M. Kimmit for $390 and took.her personal note for the purchase money; Mrs. Kimmit thereafter carried on the business under the name of the “ X. L. Awning and Tent Co.” Her husband was an experienced tent and awning maker and appellee placed him in charge of the business as her agent and manager. In 1900, appellee executed a chattel mortgage to Mrs. Bheinhardt, for $600, which was the balance of principal and interest due on the $390 note given for the purchase money. In 1902, this mortgage was cancelled and another given by Mrs. Kimmit to Mrs. Bheinhardt due two years from date. The proceeds of the business, after paying expenses and for new stock, were applied partly to the payment of Mrs. Kimmit’s debt to Mrs. Bheinhardt and part was used to pay for a home which had been bought and put in appellee’s name. Appellant offered no evidence below and asked no instructions of the court. He appeals to this court and insists that the 200 yards of awning cloth levied on are subject to the execution against appellee’s husband. The judgment against Frank M. Kimmit on which the execution issued, was for $18.36 and was rendered on July 19, 1902. There is no evidence in this- record tending to show that Frank M. Kimmit was indebted to any one at the time ap-* pellee assumed control of the business in pursuance of her purchase from Mrs. Bheinhardt of the mortgage made by Frank M. Kimmit and its foreclosure, and if the resale to appellee was a mere shift for the purpose of covering up her husband’s property so as to hinder and delay his creditors, clearly the stock itself as well as the accruing profits would be subject to the husband’s debts. The relation of husband and wife affords many opportunities for fraudulent shifts and devices, intended to place the property of the husband beyond the reach of his creditors, hence all transactions between husband and wife which bear the badges of a fraudulent purpose should be strictly scrutinized; but while this is true, since the enactment of the law of 1874 in relation to husband and wife (R. S., ch. 68) a married woman may own and control her own separate property the same as a feme sole, and for this purpose she may make all contracts in relation thereto and may avail herself of the services of her husband, as agent and manager of her business, without subjecting her property or the profits arising from his management to the payment of his debts. Lachman, et al., v. Martin, 139 Ill. 450; Harrison v. Nelson, 96 App. 395; Mali v. Spencer, 186 Ill. 303. The case at bar falls within the rule laid down in above cases and is controlled by these authorities: The judgment is therefore affirmed. Affirmed.