COMMON PLEAS.

Quickel v. Finley.

the intention, then, so far as the crops upon the farms at the time she leased them, which were intended to be transferred to her by those leases, are concerned, she acquired no title.

If she entered into a separate business in good faith, conducted it without any pecuniary assistance or credit from her husband, made the purchase which it has been testified to she made out of the products of that business, or out of Married woman - Property of Evi- money or credit not that of her husband's, then dence-Husband of. as to all things purchased and acquired, if it be in that way, she has a right to that property, even as against the creditors of her husband. Motion for new trial.

In a suit against a Sheriff's estate for trespass committed by him in his lifetime, in selling plaintiff's property as that of her husband, the latter was permitted to testify in support of a lease offered in evidence by plaintiff, and constituting her title to a large part of the property sold by the Sheriff. HELD, on a motion for a new trial, to have been error.

The facts of the case, and the law relating to married woman's separate property, are given in the following charge of the Court, Latimer, P. J., to the jury: Gentlemen of the Jury.-The plaintiff Neither the plaintiff nor her husband, was in this case, the actual plaintiff in incompetent to testify to any fact occurring in the lifetime of the original defendant. Her interest in this case, is Mary J. Quickel. terest, adverse to the decedent, places her with- Her husband is joined with her unnecesin the exclusion of clause E of section 5 of the sarily in the case. He is a party to the Act of 1887, and where a wife is excluded on suit. The defendant in this case origithe ground of interest, her husband is exclud-nally was Lysander W. Finley, the Shered by identity of interest growing out of the iff of York county. He is dead, and his closeness of the personal relation. Neither is it material that the execution right and interest in this matter have devolved upon his administrator, Lemon Love, who is here defending this suit. Mary J. Quickel, the plaintiff, is the wife of William F. Quickel. She is a married woman; and as the rights, powers and liabilities of married women under the existing laws of Pennsylvania are largely involved, and necessarily involved in the Plaintiff's husband, the subscribing witness determination of this case, I propose to to the lease, having an adverse interest to that begin my discussion of this case by inof the decedent, by reason of identity of interest with that of his wife, proof of his hand-forming you as fully as I can, and as the writing could not be admitted. interests of the case require, as to what are her rights, what are the liabilities of a married woman, when she is engaged in a contest against the creditors of her husband.

creditor indemnified the defendant. The estate of the latter is still primarily liable and is defending this suit; in fact must do so in order to make the indemnity available. It is obvious suit to which that of plaintiff is adverse, and it is that fact, and not the quantum of the interest that excludes the adversely interested witness from testifying.

that defendant's estate has an interest in the

The Act of Assembly was not intended to, and has not been construed to be, and is not to be regarded or used as a means of protecting, under the guise of ownership by the wife, personal property actually belonging to the husband, from the husband's creditors.

The status of married women in PennThe mere possession of property or money sylvania has been materially altered by by a married woman living with her husband, an Act of Assembly, which was approved without anything else, is no evidence of owner- on the 3rd day of June, 1887, and I proship by her. She must show in every contest pose to read to you two sections of that with her husband's creditors, by clear and act. [The Court then read the two secsatisfactory proof, her ownership; and that she acquired the property she claimed to own in some manner authorized by the law, and that her husband's credit and her husband's money did not go into it.

Among the powers to a married woman, or rights which she acquired under the Act of 1887, is the right to rent property, and to enter

into the possession of it, and farm it.

If the leases that were made by her were made for the purpose of hindering, delaying or defrauding creditors of William, Andrew and Daniel Quickel, and if she knew that that was

tions.]

As I said before, that Act of Assembly has very materially changed the status of married women in Pennsylvania. It conferred upon a married woman very large powers, which until its passage she did not possess; or possessed under the act of 1872 in a very qualified way. It gives her, among other things, the right to enter into a separate business, to make purchases in such separate business, to make

imation than a definition. It is difficult to define accurately that which is merely a mental principle, and to express with precision the degree of conviction forced upon the mind by evidence.

contracts in such separate business, and is factory case should be made out before to contract debts in such separate busi- the wife can be permitted to hold propness; and it has been decided by the Su- erty against honest creditors. But the preme Court in recent cases that if she language of the case is rather an approxdoes engage in such separate business, she can purchase the various articles not only for cash, but she can buy them on credit, provided the credit of her husband does not enter into it; and that she can borrow money in her own name on her own credit, for the purpose of conducting such business. Furthermore, it has been decided that she can do that without having any separate property of her own as the basis of such credit.

Hence, where a judge said to a jury that the law requires a wife 'to come into court with full proof such as will relieve reasonable doubts-if you pause, or doubt upon her evidence your verdict should be given to the plaintiff'-it was held to be too strong a description of the degree of proof in that case. In Flick v. Devries, 14 Wright 267, the same judge laid down the rule thus: 'We require no unreasonable amount of proof. Absolute demonstration is no more to be looked for in this class of cases than in other law suits, and where evidence is offered from which the conclusion can fairly be deduced, it ought to be submitted to the jury, who often decide on less than demonstrative proofs. And in a still more recent case Judge Sharswood said, that the The mere possession of property or whole question of exclusive ownership of money by a married woman living with the wife in the property derived from her her husband, without anything else, is own means, and applied by her to the no evidence of ownership by her. She purchase of it, is one for the jury, which must show in every contest with her hus- it would be error to withdraw from band's creditors, by clear and satisfactory proof, her ownership; and that she ac- Now, the uncontradicted evidence in quired the property she claims to own in this case shows that Logan A. Marshall some manner authorized by the law, and was the plaintiff in the judgment No. 406 that her husband's credit and her hus- January Term, 1885, entered in the Comband's money did not go into it. The mon Pleas of York county, for the sum measure of proof which is required in of $4,900, against William F. Quickel, such cases has probably been correctly the husband of this plaintiff, Andrew stated in the case of Earl vs. Champion, Quickel, the father of plaintiff's husband, in 65 Pennsylvania State Reports, from and Daniel Quickel, whose relationship, which I will read to you: if any, to the parties I believe was not re

But it is proper for me to say to you that that Act of Assembly was not intended to, and has not been construed to be, and is not to be regarded or used as a means of protecting, under the guise of ownership by the wife, personal property actually belonging to the husband, from the husband's creditors. For if any such construction as that were put upon the act, the effect would be to turn the Act of Assembly intended for the protection of married women into a means of enabling husbands to commit fraud.

them."

Judge Agnew says, in that case: "We vealed in the evidence. That judgment have said in many cases that the evi- which, as I said, was for $4,900, was redence must be clear and satisfactory-vived to No. 329 August Term, 1889, for clear and fully proved-clear and unequi- $4,900. On that revived judgment a writ vocal-it must exclude reasonable sus- of fi. fa. issued, on which the Sheriff levpicion that the property was the hus- ied the property, for the sale of which band's. These are but forms of expres- damages are claimed in this suit. The sion to denote that the property of a hus-property was levied, as a matter of band is not to be covered up or withheld course, as the property of one of these from creditors upon equivocal, suspicious defendants, Andrew Quickel, Daniel or doubtful evidence of a wife's right to Quickel, or William F. Quickel. Immeit. The family relation is such and the diately after its levy, and before the sale, probabilities of ownership is so great on a notice, (which you will have out with part of the husband, that a plain and sat-you), was served on the Sheriff, inform

ing him that certain articles specified in that notice were claimed by Mary J. Quickel to be her property, and not the property of the defendants in the execution, and warning the Sheriff not to proceed to sell. Indemnified by the plaintiff in the writ of execution, the Sheriff proceeded to sell the property claimed by Mary J. Quickel.

This suit is brought to recover the damages which she avers resulted to her from that sale of property, which she avers was her property. The vital question in the case is whether that property, or any of it, and, if so, what part of it, was her property, or whether it was the property of either of the defendants in the execution; because, if not her property, then there is no claim for damages. If her property, if the whole of it, or any part of it was her property, then she is entitled to such damages as she has shown in this case resulted to her from the levy and sale of her property.

Now, I have indicated to you the measure of proof, and the kind of proof which the wife claiming personal property against her husband's creditors is to adduce, to establish such claim. Briefly I will refer to the evidence that was adduced in this case on that branch of it. The

enter into business for herself, and to se

dence to indicate that on that property she went into the business of farming and dairying, and selling the milk, as she had a right to do, under the provisions of the Act of Assembly and the decree of court. She had a right to help to conduct that business, and live with her husband while. she was conducting that business; and she had a right to employ her husband in the management of the business for her.

There is also evidence in the case which indicates that for some nine years prior to 1888, she received half the products of that same farm which belonged to her father's estate; and that for two years before her acquiring the ownership of But the case is absolutely destitute of that farm, she received the entire income. evidence as to the value of the products of that farm during those eleven years, or as to the value of the products of that

farm after she became the owner of it.

In the conduct of this business she avers, and has adduced evidence here to show, that she purchased a very considerable number of articles for the levy and sale of which damages are claimed in this case.

On the 1st of April, 1891, two leases, which I hold in my hand, and which you plaintiff has shown, and it is not contra- will have out with you, were made, one dicted, and could not be, that in 1887, of them between Andrew Quickel and before the passage of the Act of 1887. Mary J. Quickel, the plaintiff in this case, which I have read to you, she applied to and the other between Daniel Quickel this court for a decree authorizing her to and Mary J. Quickel, the plaintiff in this cure to her her own earnings free from case, by which he, the said Andrew any claim of her husband's creditors. Quickel, and he, the said Daniel Quickel, The decree in that case was not made, however, until after the passage of the Act of 1887. Either under the decree of the court made in 1887, or under the provisions of the Act of Assembly of 1887 this woman, a married woman, had the right to enter into separate business; she had a right to the earnings of her own property, and of her own business. She had a right to receive them, and hold them against the creditors of the husband. There is evidence in the case to

show that prior to the 1st of April, 1891,

she became the owner of a farm in Manchester township, of 72 acres; but it is fair and proper for me to say that there is no evidence as to where she got that money with which she bought that farm, or whether it was paid. There is also evi

respectively, leased to her, the two defendants in the Marshall judgment, they were, leased to her their respective farms in Manchester township, which were covered by the lien of Mr. Marshall's judgment. No money consideration is specified in either of those leases. Certain

things that she was to do are specified there, among others, to pay the interest lieve in one case to make certain repairs; on the liens on the property, and I beand certain methods of routine farming are prescribed to be pursued by her.

Now, among the powers to a married. woman, or rights which she acquired under the Act of 1887, was the right to rent that property, and to enter into the possession of it, and farm it. It seems that she went into possession of those two

farms, that she removed from her own quired no title. But even if such an intention existed, and she had no knowledge of it, the title would pass to her as an innocent purchaser; for there is a legal consideration in the lease.

I have already said that there is no evidence in the case to show the value of the products of either of these three farms, or the amount of money realized from her business. If the leases that were made by her were made for the If she entered into a separate business purpose of hindering, delaying and de- in good faith, conducted it without any frauding creditors of William, Andrew pecuniary assistance or credit from her and Daniel Quickel, and if she knew that husband, made the purchases which it has that was the intention, and there is no been testified to she made out of the proevidence on that subject, excepting the ducts of that business, or out of money fact of the indebtedness, and the fact of or credit not that of her husband's, then the making of the leases, then, so far as as to all things purchased and acquired, the crops upon the farms at the time she if it be in that way, she has a right to leased them, which were intended to be the property, even as against the creditransferred to her by those leases, so far tors of her husband. But if the whole as the crops then are concerned, she ac-scheme was a scheme to cover up the

Zerk Legal Record.

Vol. VII. THURSDAY, APRIL 12, 1894. No. 44.

property of her husband from his creditors, and if the money or the credit of the husband entered into the purchase of any particular article for which she claims. damage here, then the ownership of such article was in the husband, and not in her.

Property which she purchased on her own credit, unpaid for at the time of the Sheriff's sale, for the purpose of conducting this business of hers, if she had in good faith entered on such business, was her property, unless the scheme of purchasing and the separate business by her involved an attempt on her part to cover up property of her husband actually entering into that business, from his credi

tors.

As I have already stated, if this separate business and leasing of these farms was a scheme entered into, and knowingly by Mrs. Quickel, for the purpose of defeating and defrauding, and delaying, or covering up her husband's estate, then she is not entitled to recover at all.

The verdict being for the plaintiff, a motion for a new trial was made, one of the reasons being the admission of the plaintff's husband to testify to the lease executed in the lifetime of the deceased defendant.

Stewart, Niles & Neff for motion. Edward Chapin and N. M. Wanner. February 2, 1894. LATIMER, P. J.This case was fully submitted to the jury on all the questions of fact, in a charge, which adequately explained the law governing the case, in harmony with the recent utterances of the Supreme Court on the questions involved. There was abundant evidence from which the jury might find as they did, and the verdict is by no means so clearly against the weight of the evidence as to make it at all proper to set it aside on that ground.

But it seems that in the admission of Wm. F. Quickel to testify in support of the leases offered in evidence by plaintiff there was serious error.

Neither Mary J. Quickel, the real plaintiff, nor Wm. F. Quickel, her husband, was competent to testify to any fact occurring in the life time of Lysander Finley, the original defendant. Her interest, adverse to the decedent, places. her within the exclusion of clause (E) of section 5 of the Act of May 23rd, 1887, and where a wife is excluded on the ground of interest, her husband is excluded by identity of interest growing out of the closeness of the personal relation; Bitner v. Boone, 128 Pa. 567.

If, on the other hand, she acquired the property for which she claims damages in this case in a legitimate way under the act of 1887, and I have explained it to you fully, if she purchased on credit to carry on and conduct the business, and her husband's money did not go into it, then she is entitled to recover such damages as you shall find ought to be award- The "thing in action" was the trespass ed to her for the property actually taken. alleged to have been committed by FinAnd the measure of damages is the mar-ley, in his life time, as Sheriff, in the sale ket value of that property at the date of the Sheriff's sale, the market value at which similar articles at the time ordinarily sold for at a common public sale on the usual time.

On the question of the value of each of those particular articles, the testimony is so voluminous that it would be perfectly useless for me to attempt to go into it to enlighten you upon it. It is proper for me to say, however, to you, upon a matter which has been raised in a point, that interest cannot be recovered in such a case as this; but the jury have a right to include interest for the amount of money which they shall award to the plaintiff, if any at all, from the date of the detention down to the present time.

* *

of personal property claimed by the plaintiff to be hers, on a writ of fi, fa. issued against her husband and others.

Finley's "right therein" was the right to defend the alleged trespass on any ground, as by showing that the property levied and held was not that of Mrs. Quickel, or otherwise however.

The right to defend has devolved by operation of law on Lemon Love, administrator of Lysander Finley, who is a party on recorp representing his interest in the thing in action.

Mary J. Quickel is the "surviving or remaining party" to the thing in action, and her interest is adverse to that of Finley, the deceased party. * * By the very plain and unmistakable