Carson v. Carson , 204 Pa. 466 ( 1903 )

Opinion by

Mr. Justice Mitchell,

Without going into the question whether or not the plaintiff has brought himself within the conditions permitting an action against his wife under the Act of June 8, 1893, P. L. 344, it is clear that his ease failed on the evidence.

At the time of the marriage in December, 1886, the wife owned and conducted a hotel business. The husband had been employed by her as barkeeper, and after marriage first assisted her but claims to have carried on the business subsequently in his own name though in the same premises and in conjunction with her. The property now in dispute was bought out of the earnings of that business.

Appellant claims that under tbe law, as it was at tbe date of the marriage, his wife’s earnings, whether separate or jointly with him, were his property. It may be conceded that the presumption ordinarily was so at that time. But the income from her separate property was hers. If the hotel had been leased to a third party, the rent would unquestionably have been her separate estate, after as well as before marriage. The conduct of the parties, as appears from the undisputed evidence, shows that it continued to be so regarded and treated by both the parties here. The income from the business was handed over to her, deposited in her name in her own bank account just as it had been before the marriage, drawn out only on her checks, and when used to pay for the property now in suit, the title was with knowledge and assent of plaintiff taken in her name, and so remained for thirteen years until this suit. The action is an equitable ejectment on tbe ground of a resulting trust from a purchase with plaintiff’s money. Without stopping to discuss the other objections raised in the argument, it is enough to say that plaintiff wholly failed to show that the purchase money was his. As the judge could not have sustained a finding for plaintiff on the admitted facts, he was right in directing a verdict for defendant.

Judgment affirmed.