Bollinger v. Gallagher , 170 Pa. 84 ( 1895 )

Opinion by

Mr. Justice Williams,

We agree with the learned counsel for the appellants in much of his criticism upon the manner in which this case was tried in the court below. The right of Mrs. Bollinger to recover did not depend in any sense upon the weakness of the title of the defendants, but upon the legal sufficiency of her own. It was evident from her case in chief that she was a married woman, claiming property that had belonged to her husband, and that her contest was with her husband’s execution creditors. It was indispensably necessary for her to show a purchase of the property by herself, valid in character, made exclusively upon her own money or credit, and followed by an open exercise of acts of ownership over it. Without having established by competent evidence every requisite necessary to invest her with a title, good against her husband’s execution creditors, she was without any right to recover, and a judgment of nonsuit should have been entered against her. But the learned judge before whom the trial was conducted refused a motion to enter a compulsory nonsuit and the defendants entered upon their defense. Before the trial closed the whole ease of the plaintiff was before the court and jury and was passed upon by them. The question of order is therefore now of minor importance, and we proceed to consider the case as a whole. Two important questions were raised by the evidence. The first was a question of fact for the jury, viz, was Mrs.Bollinger’s purchase made wholly upon the credit of herself and her friends who became her sureties, and was the husband’s name as one of the makers of the note, given by her, treated by all the parties as a matter of form to be observed in' order to make the note valid as against herself ?

The other was a question of law for the court, viz, how could Mrs. Bollinger, a married woman, acquire a valid title to property as against her husband’s creditors under the laws of Maryland, the state in which she was living when the alleged acquisition took place ?

The second question was answered in the language of sec. 19 of the Code of Maryland, 1878. A married woman may acquire a valid title by purchase, and when the purchase has been made in good faith with her own separate monej’-, or upon her own credit, she may hold the property so purchased for her separate use. The case then went to the jury upon the question of fact stated above. The title set up was by purchase. The purchase was made by the plaintiff upon credit. The question of fact narrowed itself therefore to whether the credit was given to Mrs. Bollinger and her sureties, or was in part at least given to her husband. The security given was a note. The husband’s name appeared on this note and, unexplained, justified the conclusion that his credit entered into the transaction. It became necessary therefore to account for the fact that his name appeared upon the note, which it is alleged was accepted as payment wholly upon the credit of Mrs. Bollinger and her sureties. For this purpose evidence was given by the testimony of Mrs. Bollinger, her husband, Gorsuch, and one or two other witnesses, tending to show the following facts: (a) That the husband was insolvent and had been stripped of all his property by a sheriff’s sale; (5) that the parties supposed his signature to be necessary in order that the note should bind his wife; (a) that the person to whom the note was payable, and the persons who were to execute it as sureties, regarded and treated Mrs. Bollinger as the debtor, or the person on whose credit and for whose benefit the sale was made, and who was the sole and separate purchaser.

Upon this evidence the learned judge said to the jury that if it was belieyed, and the jury should find from it that the credit was given to Mrs. Bollinger by the vendees of the property, and by the sureties who became liable for the payment of the note, and not to her husband, “ then under all the decisions and under a true and proper interpretation of the statute law of Maryland which I read to you, she acquired by the purchase, on credit though it was, and on a note joined in by her husband though it was ; still if it was her credit that induced these sureties to become sureties, and not her husband’s credit to any degree, then she acquired a title to the property that she can hold against her husband’s contemporary creditors. And that is a question for you to determine.” We.think this was a correct submission of the question on which the case turned. It is true the learned judge told the jury that the joining of the husband was necessary in order to make the note of his wife a binding obligation upon her. It is also true that no authority in the way of express enactment, or exposition of the Code of 1878 by the Maryland courts, is cited by the learned judge or brought to our attention by the counsel for the appellee that lays down the rule upon this subject in the terms in which it was stated by the court below.

But the jury was not directed to disregard the joinder of the husband because the law required it of him in aid of his wife’s separate undertaking, but the purpose and effect of his joinder were left for the jury to determine under the evidence relating to the transaction; with the direction that if they believed this was not a good faith purchase by the wife upon her separate credit but a plan to cover up the property and keep it from the husband’s creditors then “ this statute which was enacted for the protection of married women must not be made the means of enabling the husband to cover up with his wife’s mantle his own property and prevent his creditors from seizing it.” In other words the joinder by the husband with his wife in the execution of the note was not disposed of as matter of law by a binding direction resting on the assumed law of Maryland, but left to be disposed of by the jury on the evidence as a question of fact.

One other subject requires attention. It is brought to our notice by the eleventh assignment of error. Millard F. Taylor, a member of the Baltimore bar, was called as a witness and testified that he was familiar with the law of Maryland relating to husband and wife. He was not then examined as to what the law was held to be by the courts of that state on any subject relating to husband and wife, but was informed by counsel that it was his purpose to put a hypothetical question to him. Before this question was framed an offer was required and it was accordingly reduced to form thus: “ Defendants propose to prove by the witness that if a wife of an insolvent debtor in Maryland who purchased property while the husband was in insolvent circumstances, giving in payment therefor her promissory note signed by herself and her husband as joint makers, and two sureties, such a purchase would not be so exclusively on the wife’s credit as to give title to the property as against the husband’s creditors under the Maryland law.”

It should be noticed that this is not an offer to prove what the law of Maryland is as held by its courts, but an offer to show by the witness what, upon the facts assumed in the hypothetical question, his own conclusion is as to what would be held by the courts of that state. The question reached after the opinion of the witness as to what the courts would hold, not after his knowledge of what they had held. The statutes of another state or country may be proved by a properly authenticated copy. The unwritten law of such state or country may be shown by the decisions of the oourts or by the testimony of a witness who is familiar with it: 1 Greenleaf on Ev. 488; Chesapeake Ins. Co. v. Starke, 6 Cranch, 273; but such evidence is to the court, and for its information. The jury must take the law from the court. The law of another state upon a subject coming under notice in the trial of a cause will be presumed to be the same as the law of this state upon the same subject. It is incumbent upon him who alleges that it is different to show just what it is to the court, who will judge of the sufficiency of the evidence, and its effect, and instruct the jury thereon. Ordinarily expert testimony is for the juiy aud is intended to aid them in determining a question of fact. They are not bound by it, but may exercise their own judgment in deciding the question in regard to which experts have testified, 7 Am. & Eng. Ency. of Law, 516, and may in doing so disregard the expert testimony. But the proof of the laws of another state is not made by experts as such. It is made by the best evidence which the nature of the law in question admits of. A statute admits of exact proof by a copy and for this reason it cannot be shown by parol. The expositions of that statute by the courts are not necessarily evidenced by any sort of documentary matter and for this reason may be proved by one who is familiar with them; but a conjecture, or a professional opinion, as to what the law would be held to be upon certain assumed facts, while it might be desirable for the guidance of a client, and be within the appropriate province of an attorney at law to give, is not admissible as proof of what the law actually is. With the statute before him the judge in the absence of an interpretation by the courts of the proper state must make his own. He must determine its meaning and its operation for himself, and unless he seeks or accepts the services of an amicus curise, the opinions of other men are not admissible as evidence at the instance of either party. It was not error therefore to reject the offer resting on the hypothetical question.

Upon a consideration of the whole case the assignments of error are overruled and the judgment is affirmed.

Mitchell, J., dissents.