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Vol. VII.

43.

York Eegal Record.

the intention, then, so far as the crops upon

the farmis at the time she leased them, which THURSDAY, APRIL 5, 1894. No.

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 COMMON PLEAS.

faith, conducted it without any pecuniary assis

tance or credit from her husband, made the Quickel v. Finley.

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, In a suit against a Sheriff's estate for tres even as against the creditors of her husband. pass committed by him in his lifetime, in sell Motion for new trial. ing plaintiff's property as that of her husband, the latter was permitted to testify in support

The facts of the case, and the law reof a lease offered in evidence by plaintiff, and lating to married woman's separate propconstituting her title to a large part of the erty, are given in the following charge of property sold by the Sheriff. Helb, on a mo- the Court, Latimer, P. J., to the jury: tion for a new trial, to have been error.

Gentlemen of the Jury.—The plaintiff Neither the plaintiff nor her husband, was in this case, the actual plaintiff in incompetent to testiíy to any fact occurring in the lifetime of the original defendant. Her in- terest 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 itf 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 decreditor indemnified the defendant. The estate

volved upon

his administrator, Lemon of the latter is still primarily liable and is de- Love, who is here defending this suit. fending this suit; in fact must do so in order Mary J. Quickel, the plaintiff, is the wife to make the indemnity available. It is obvious of William F. Quickel. She is a married suit to which that of plaintiff is adverse, and woman; and as the rights, powers and it is that fact, and not the quantum of the in- liabilities of married women under the terest that excludes the adversely interested existing laws of Pennsylvania are largely witness from testifying.

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 inest 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 The Act of Assembly was not intended to, are her rights, what are the liabilities of and has not been construed to be, and is not to a married woman, when she is engaged be regarded or used as a means of protecting, in a contest against the creditors of her under the guise of ownership by the wife, per- husband. sonal 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

tions.] in some manner authorized by the law, and

As I said before, that Act of Assembly that her husband's credit and her husband's las very materially changed the status of money did not go into it.

married women in Pennsylvania. It conAmong the powers to a married woman, or ferred upon a married woman very large rights which she acquired under the Act of powers, which until its passage she did 1887, is the right to rent property, and to enter not possess; or possessed under the act into the possession of it, and farm it. If the leases that were made by her were

of 1872 in a very qualified way. It gives made for the purpose of hindering, delaying or her, among other things, the right to endefrauding creditors of William, Andrew and ter into a separate business, to make purDaniel Quickel, and if she knew that that was chases in such separate business, to make

or

contracts in such separate business, and isfactory 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, imation than a definition. It is difficult she can purchase the various articles not to define accurately that which is merely only for cash, but she can buy them on a mental principle, and to express with credit, provided the credit of her hus- precision the degree of conviction forced band does not enter into it; and that she upon the mind by evidence. can borrow money in her own name on Hence, where a judge said to a jury her own credit, for the purpose of con- that the law requires a wife 'to come into ducting such business. Furthermore, it court with full proof such as will relieve has been decided that she can do that reasonable doubts-if you pause, without having any separate property of doubt upon her evidence your verdict her own as the basis of such credit. should be given to the plaintiff-it was

But it is proper for me to say to you held to be too strong a description of the that that Act of Assembly was not in- degree of proof in that case. In Flick v. tended to, and has not been construed to Devries, 14 Wright 267, the same judge be, and is not to be regarded or used as laid down the rule thus: ‘We require no a means of protecting, under the guise of unreasonable amount of proof. Absolute ownership by the wife, personal property demonstration is no more to be looked actually belonging to the husband, from for in this class of cases than in other law the husband's creditors. For if any such suits, and where evidence is offered from construction as that were put upon the which the conclusion can fairly be deducact, the effect would be to turn the Act of ed, it ought to be submitted to the jury. Assembly intended for the protection of who often decide on less than demonstramarried women into a means of enabling tive proofs.' And in a still more recent husbands to commit fraud.

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 them.” 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 reJudge 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 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

a

matter of

ing him that certain articles specified in dence to indicate that on that property that notice were claimed by Mary J. she went into the business of farming and Quickel to be her property, and not the dairying, and selling the milk, as she had property of the defendants in the execu- a right to do, under the provisions of the tion, and warning the Sheriff not to pro- Act of Assembly and the decree of court. ceed to sell. Indemnified by the plain- She had a right to help to conduct that tiff in the writ of execution, the Sheriff business, and live with her husband while proceeded to sell the property claimed by she was conducting that business; and Mary J. Quickel.

she had a right to employ her husband in This suit is brought to recover the the management of the business for her. damages which she avers resulted to her

There is also evidence in the case which from that sale of property, which she avers was her property: The vital ques- to 1888, she received half the products of

indicates that for some nine years prior tion in the case is whether that property, that same farm which belonged to her or any of it, and, if so, what part of it, was her property, or whether it was the father's estate ; and that for two years property of either of the defendants in before her acquiring the ownership of the execution; because, if not her prop. But the case is absolutely destitute of

that farm, she received the entire income. erty, then there is no claim for damages. evidence as to the value of the products If her property, if the whole of it, or any of that farm during those eleven years, part of it was her property, then she is entitled to such damages as she has or as to the value of the products of that shown in this case resulted to her from farm after she became the owner of it. the levy and sale of her property.

In the conduct of this business she Now, I have indicated to you the meas- avers, and has adduced evidence here to ure of proof, and the kind of proof which show, that she purchased a very considthe wife claiming personal property erable number of articles for the levy against her husband's creditors is to ad- and sale of which damages are claimed in duce, to establish such claim. Briefly I this case. will refer to the evidence that was adduced in this case on that branch of it

. The which I hold in my hand, and which you

On the ist of April, 1891, two leases, 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 enter into business for herself, and to se

case, by which he, the said Andrew her any claim of her husband's creditors. Quickel

, and he, the said Daniel Quickel, The decree in that case was not made, fendants in the Marshall judgment, they

, however, until after the passage of the Act of 1887. Either under the decree of were, leased to her their respective farms

in Manchester township, which were covthe court made in 1887, or under the pro-ered by the lien of Mr. Marshall's judg. visions of the Act of Assembly of 1887,

No money consideration is specithis woman, a married woman, had the right to enter into separate business; she things that she was to do are specified

fied in either of those leases. Certain had a right to the earnings of her own there, among others, to pay the interest property, and of her own business. She had a right to receive them, and hold lieve in one case to make certain repairs ;

the liens on the property, and I bethem against the creditors of the hus

and certain methods of routine farming band. There is evidence in the case to

are prescribed to be pursued by her. show that prior to the ist of April, 1891, she became the owner of a farm in Man Now, among the powers to a married chester township, of 72 acres; but it is woman, or rights which she acquired unfair and proper for me to say that there der the Act of 1887, was the right to rent is no evidence as to where she got that that property, and to enter into the posmoney with which she bought that farm, session of it, and farm it. It seems that or whether it was paid. There is also evi- she went into possession of those two

ment.

on

farms, that she removed from her own quired no title. But even if such an infarm in Manchester township certain por- tention existed, and she had no knowltions of the property for which damages edge of it, the title would pass to her as are claimed in this suit; that she pur- an innocent purchaser; for there is a lechased certain other property, a part of gal consideration in the lease. which was bought on those farms and re There has been a very large amount of mained, some of which she bought from testimony, and it is very largely in conher mother-in-law, and that with the per- fusion, in regard to what property actusonal property, the stock and wagons and ally was sold that was claimed by her, in the implements brought from her own regard to the sources from which it was farm, and purchased from various people derived, and the method by which she she entered upon the business of farming derived her alleged ownership, and the those two farms, and she continued liv- nature of the case was such as to almost ing with her husband, and was aided by positively require that degree of confuhim in the management of those farms, sion. I can aid you very little, without and conducted the business until the date going over the entire line of the evidence of the levy by the Sheriff on the judg- and reading it to you, in determining ment of Logan A. Marshall.

those questions; but you have listened to The defendant avers, and has argued the witnesses and know all about it, alto you, that this whole scheme of a sepa- though your recollection may perhaps be rate business entered into by Mrs. indistinct. Quickel, and especially this scheme of This married woman has the legal the leasing of these two farms by Mrs. right, under the Act of 1887, having enQuickel from Andrew Quickel and Dan- tered into a separate business by leasing iel Quickel, two of the defendants in the these farms, she had a legal right to Marshall claims, was a scheme to protect make purchases of property for cash or her husband's property, and cover up on credit. But where she purchased for with the mantle of her alleged ownership, cash, the burden rests upon her to show so as to hinder and delay the payment of that the cash was not derived from her the claims against Daniel and Andrew, husband; and where she bought on credand William, and especially of this cred- it, and subsequently paid, she must show itor, by the transfer of the personal prop- that the money was not her husband's ;erty of those two farms belonging to and a portion of the evidence properly Daniel and Andrew to Mrs. Quickel. deducible for the purpose of establishing

The plaintiff contends that the mere those things, introduced in this case, was fact, if it be a fact, that she entered into that she was the owner of a farm, and a separate business and that she pur- was receiving other money from other chased property on credit, is of itself suf- sources, including what she received ficient to raise the presumption that the from the two farms which she leased. ownership of the property so purchased But, as I have said before, the evidence in her name is hers.

is not direct,—and, perhaps, by reason of I have already said that there is no the exclusion of this woman from testievidence in the case to show the value of fying, could not be direct, as to the fact the products of either of tiese three that the money which entered into those farms, or the amount of money realized purchases was derived from that busifrom her business. If the leases that ness. 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

Vol. VII.

**k Legal Record. The verdict being for the plaintiff, a

motion for a new trial was made, one of THURSDAY, APRIL 12, 1894. No. 44. the reasons being the admission of the

plaintff's husband to testify to the lease property of her husband from his credi- executed in the lifetime of the deceased tors, and if the money or the credit of the defendant. husband entered into the purchase of any Stewart, Niles & Neff for motion. particular article for which she claims

Edward Chapin and N. M. Wanner. damage here, then the ownership of such

February 2, 1894. LATIMER, P. J.article was in the husband, and not in This case was fully submitted to the jury her.

on all the questions of fact, in a charge, Property which she purchased on her which adequately explained the law govown credit, unpaid for at the time of the erning the case, in harmony with the reSheriff's sale, for the purpose of conduct- cent utterances of the Supreme Court on ing this business of hers, if she had in the questions involved. There was abundgood faith entered on such business, was ant evidence from which the jury might her property, unless the scheme of pur- find as they did, and the verdict is by no chasing and the separate business by her means so clearly against the weight of involved an attempt on her part to cover the evidence as to make it at all proper to up property of her husband actually en- set it aside on that ground. tering into that business, from his credi

But it seems that in the admission of tors.

Wm. F. Quickel to testify in support of As I have already stated, if this sepa- the leases offered in evidence by plaintiff rate business and leasing of these farms there was serious error. was a scheme entered into, and know Neither Mary J. Quickel, the real ingly by Mrs. Quickel, for the purpose of plaintiff, nor Wm. F. Quickel, her husdefeating and defrauding, and delaying, band, was competent to testify to any or covering up her husband's estate, then fact occurring in the life time of Lysanshe is not entitled to recover at all.

der Finley, the original defendant. Her If; on the other hand, she acquired the interest, adverse to the decedent, places property for which she claims damages her within the exclusion of clause (E) in this case in a legitimate way under the of section 5 of the Act of May 23rd, 1887, act of 1887, and I have explained it to and where a wife is excluded on the you fully, if she purchased on credit to ground of interest, her husband is excarry on and conduct the business, and cluded by identity of interest growing her husband's money did not go into it, out of the closeness of the personal relathen she is entitled to recover such dam- tion; Bitner v. Boone, 128 Pa. 567. ages as you shall find ought to be award he "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 of personal property claimed by the the Sheriff's sale, the market value at plaintiff to be hers, on a writ of fi. fa. which similar articles at the time ordi- issued against her husband and others. narily soll for at a common public sale Finley's “right therein” was the right on the usual time.

to defend the alleged trespass on any On the question of the value of each of ground, as by showing that the property those particular articles, the testimony is levied and held was not that of Mrs. so voluminous that it would be perfectly Quickel, or otherwise however. useless for me to attempt to go into it to

The right to defend has devolved by enlighten you upon it. It is proper for operation of law on Lemon Love, adminme to say, however, to you, upon a mat- istrator of Lysander Finley, who is a ter which has been raised in a point, that party on recorp representing bis interest interest cannot be recovered in such a in the thing in action. case as this ; but the jury have a right to Mary J. Quickel is the “surviving or include interest for the amount of money remaining party" to the thing in action, which they shall award to the plaintiff, if and her interest is adverse to that of any at all, from the date of the detention Finley, the deceased party. down to the present time.

By the very plain and unmistakable

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