Shuster v. Kaiser , 111 Pa. 215 ( 1886 )

Mr. Justice Clark

delivered the opinion of the eourt, January 4th, 1886.

In the year 1880 Theresa Kaiser, wife of Julius Kaiser, received from her father’s estate in Ohio the sum of $450; with this money she purchased from Blasius Rauch, and furnished a saloon property at No. 18 Carson street, Pittsburgh; the goods were subsequently insured in her name, and the business was conducted for her benefit from the date of the purchase until the 6th of November, 1881. On the day last named, she claims to have purchased, through Emanuel Weiler, from J. J. Speck the furnishment, stock in trade, and leasehold of a saloon and boarding house, known as the Panhandle Hotel, at No. 10 Carson street, at and for the price of $900, which was paid — $200 in cash, and the residue in five promissory notes of $140 each, payable in two, four, six, eight, and ten months thereafter, made and signed by Julius Kaiser and indorsed by Emanuel Weiler. The whole transaction would appear to have been conducted by Weiler, who was a wholesale liquor merchant in Pittsburgh. He made the purchase for Mrs. Kaiser, at her request. Speck sold, wholly upon the faith and credit of his indorsement, and was indifferent as to whether the purchase was for Julius Kaiser or for his wife, or as to who should sign the notes; his book-keeper, however, said that the note of a married woman was not a proper paper for discount in bank, and that Kaiser might as well sign them —r-that it was immaterial, as the only party they knew in the transaction was the indorser. Kaiser then signed the notes, Weiler indorsed them, and in this form they were delivered to Speck. If the testimonjr on part of the plaintiff is believed, however, there can be no question but that the purchase was in fact effected in the interest and in the name of Theresa Kaiser; as to this the witnesses agree, and the bill of sale and accompanying receipt show that this was without doubt the intent of all the parties participating in the transaction. Mrs. Kaiser says that her husband represented her in the purchase, and he admits that he did; Weiler says that it was to Mrs. Kaiser he lent the credit of his indorsement, and the bill of sale shows that Speck so understood the matter.

There is no proof that at this time Julius Kaiser was the owner of any estate, or had any means, either in money or otherwise, nor that he was indebted in any sum whatever ; he neither owned or owed anything, nor was he about to embark in any new or hazardous business, from which an indebtedness might be anticipated. The damages for which Shuster’s judgment was afterwards obtained were not sustained, and no cause of action existed until in the year 1882. Theresa Kaiser, on the other hand, was or assumed to be the owner of the saloon property at No..18 Carson street, which she paid for with the money received from her father’s estate, and which she subsequently sold for some three hundred dollars, and had in hand $200, which she alleges were accumulated profits or earnings derived from its management. This $200, it is alleged, was paid as the hand money of the purchase, and the notes were discounted in bank, and were subsequently paid by her with money made in the business, which she regarded as her own.

There may have been at the trial some controversy as to the facts, and as to the bonafides of these several transactions, but all this has been settled by the verdict, and the question here, as stated in the argument of counsel, is as to the legal effect of the purchase of the Panhandle Hotel under the facts and circumstances mentioned.

It is certainly well settled, by the decisions of this court, that a feme covert cannot buy personal estate upon merely personal credit; if she does, her husband’s creditors may seize and sell it for his debts. If, however, she is the owner of a separate estate, she may contract upon the credit of that estate; or rather that estate will give her a foundation for credit, and her title thus acquired will be good, not only as against her husband, but against his creditors. It may be that the sale of the Panhandle Hotel, so far as Speck, the vendor, was concerned, was not made on the personal credit of Theresa Kaiser; that it was made upon the faith of the notes indorsed by Emanuel Weiler, who loaned his credit for the purpose. The transaction was substantially the same as if the purchase was made with borrowed money, for it was made upon the borrowed credit of Weiler; and, whilst no obligation was or could be given by Mrs. Kaiser to secure Weiler, it is plain that the notes were given for a debt, which Mrs. Kaiser was in fact to pa}'. It was therefore as we said in Pier v. Siegel, 15 Weekly Notes, 480, a purchase upon credit, but it does not follow necessarily that it was a purchase upon her personal credit alone. Mrs. Kaiser had, or claimed to have, a separate estate, and Weiler’s indorsement may have been made on the credit of that separate estate; he knew that she was responsible, he says, and that Kaiser was not, and it was her interests, not his, that he represented in the purchase. But even if we assume that the purchase or the indorsement, as the case may be, was made upon Mrs. Kaiser’s personal credit alone, the transaction was certainly valid, and Mrs. Kaiser’s title complete, not only as against Speck, who with full knowledge of the facts gave her a bill of sale, and delivered the possession of the goods, but also against Weiler and Julius Kaiser, who themselves procured the contract to be made in this form, and, as Kaiser had no creditors, there is no one to complain. It was certainly competent for Kaiser at that time, in good faith, to have made a settlement upon his wife, effective not only against himself, but also against his subsequent creditors, not intended to be defrauded; and if he might have made a settlement upon her, he certainly might give his note simply by way of accommodation, to her; especially so, when she. was possessed of a separate estate, reasonably proportionate to the amount whilst he was possessed of none. He might, without doubt, under the circumstances, have purchased the goods in his own name, bona fide, giving his own note for the price, and, with Weiler’s consent, have bestowed them wholly upon his wife; and if so, he could lend her the use of his name to the notes, to accomplish the same purpose. The purchase money was paid out of the profits and earnings of the house; it is not pretended that the husband paid any part.

In Goff v. Nuttall, 8 Wr., 78, a lot of ground was conveyed . to a married woman who was not shown to have any separate estate; the entire purchase money was secured by mortgage, in which the husband joined. The husband improved, and for a time occupied a blacksmith shop on the premises ; after he left the shop, it was rented, and all of the purchase money that was ever paid was paid from the rents of the shop. But it did not appear that the husband was at the time indebted, or that he anticipated any indebtedness. In a controversy between the wife and a subsequent creditor of the husband, it was held that the title to the property vested in the wife, on the ground that the husband did not pay the purchase moneys and that if he had, no equity would thereby vest in him, as it was competent for him to make a settlement upon her, good not only as against himself but also subsequent creditors; and that even if the property were a gift from the husband, it was such a gift as he had a right to make.

So in Thompson v. Thompson, 1 Norris, 378, it was held, the right of a husband to procure a conveyance of land to be made to his wife, and to settle the land upon her, is not affected by the fact that he borrowed a portion of the purchase money at the time of the execution of the deed, if at the time he had no other debts, and was not about to enter into any hazardous business, or to contract fresh obligations. And in Nippes’s Appeal, 25 P. F. S., 472, it was said, that in the absence of proof of any fraudulent intention, the fact that the land conveyed was all the property the husband had was immaterial. The same rules which govern the acquisition of personaltjr by married women, govern in the purchase of realty by them, and therefore the decisions of this court as to one is, iu general, equally applicable to the other.

It is a matter of little consequence here, that the license was in-the husband’s name; this was proper for the jury in their deliberations as to whether or not the business really belonged to the husband or to the wife, but if she was in fact the owner of the property in dispute, she could not by this circumstance lose her title : Troxell v. Stockberger, 15 Weekly Notes, 117. She could not, it seems, have the license in her name, and for that reason it was taken out in his, until after the decree was entered constituting the wife a feme sole trader. The testimony is clear that the liquors were purchased, and the business generally conducted by Rer, and under the findings of the jury the profits and earnings were hers.

Judgment affirmed.