Cross v. Wyoming Valley Beef Co. , 57 Pa. Super. 351 ( 1914 )

Opinion by

Henderson, J.,

Title to the property levied on by the sheriff is claimed by the appellant by virtue of a bill of sale dated October 5, 1912. It was property which the appellant’s husband had used in his business as a butcher, which business the appellant at the time the bill of sale was made, and afterward, was conducting on her own account. The plaintiff in the execution was a creditor of the appellant’s husband at the time the sale was made, the indebtedness being for meat sold to him. The consideration stated in the bill of sale is $1.00; the appraised value of the property was $704. The only other consideration than that recited in the bill of sale was that given by the appellant in her evidence where she said with reference to the acquisition of the property, "I took it for wages. I have worked in the store all the time and I considered it was worth something. Q. Who were you working for? A. J. H. Cross. Q. Who is J. H. Cross? A. My husband.” It does not appear from the evidence that any agreement was made for wages nor that any valuation was put on the property. The husband testified that he just gave his wife the property. It is clear, therefore, under the most favorable interpretation of the appellant’s evidence that her claim to the property arises solely out of the fact that she had worked in her husband’s meat shop for several years and that she considered herself entitled to compensation for that when her husband became embarrassed financially. But a title so acquired cannot be supported against creditors of the husband. At common law the husband was entitled to the services of his wife rendered by her in and about either domestic matters or his business affairs. For such services she had no legal recourse against him or his estate and it was not the effect of the legislation enlarging the rights of married women to deprive the'husband of his common law right with respect to his wife’s services in connection with his business. Where a married woman carries on any separate estate or independent business or performs any labor or service on her sole and separate account-she is entitled to the earnings so acquired, but this does not apply to cases where a wife assists her husband in his business, in the absence of an agreement to that effect. The subject is fully discussed in Standen v. Penna. R. R. Co., 214 Pa. 189, and numerous authorities are cited construing the Act of June 3, 1887, P. L. 332, and the Act of June 8, 1893, P. L. 344. From anything that appears in the case all the services of the wife in connection with her husband’s business up to the date of the bill of sale belong to him and there is no allegation that the husband agreed to compensate her for such services. That he could not give his property away to the prejudice of the execution creditor goes without saying, and as the case was presented to the court at the hearing of the rule the appellant’s claim to the property was colorable and collusive. While it is not the province of the court on the preliminary inquiry as to the granting of an issue to pass on the merits of the case it is not the duty of the court to award such issue where it appears that the claim is colorable or fraudulent in law: Book v. Sharpe, 189 Pa. 44. It follows that the refusal of an issue under such circumstances is not an abuse of discretion. The facts presented by the appellant do not establish a prima facie title which could be sustained at a trial.

The action of the court below was proper, therefore, and the order is affirmed.