#### Elizabeth Westerman, John F. O’Neal, and Joseph O’Neal *v.*Henry Westerman.

1. Under the amendatory act of April 18, 1870 (67 Ohio.L. 113), husband and wife are competent witnesses for and against each other, except as to communications made by one to the other, and acts done by one in. the presence of the other during coverture, and not in the known presence of a third person.

2. And the act is applicable to cases pending and causes of action existing' at the time of its passage, notwithstanding the provisions of the act of February 19, 1866 (S. & S. 1), declaring the effect of repeals and amendments.

3. Evidence that a third person was present, and known to be present, at' the time of making such communications, or doing such acts, is for the' court and not for the jury, and, on error, will be presumed to have been given to the court, unless the contrary appears.

4. Where a motion is made to exclude the entire testimony of a witness,. part only of which testimony is incompetent, without specifying any particular part of the testimony objected to, or disclosing the ground of objection, it is not error in the court to overrule the motion.

5. Under the act of May 1, 1861 (S. & S. 389), as amended March 23, 1866 (S. & S. 391), the separate property of the wife is *primarily*liable, as between her and the husband, for the satisfaction of judgments recovered in actions brought against them upon causes existing against her at their marriage; and the husband, when compelled to pay any such judgment, becomes, in equity, a creditor of the wife to the amount paid, and entitled to charge the same upon her separate property, and for" that purpose to set aside fraudulent conveyances thereof made in contemplation of marriage.

6. A creditor may avoid or set aside a fraudulent conveyance of his debtor’s property for the satisfaction of his debt, without first exhausting the debtor’s other property, or showing that the debtor has no other property liable to be taken.

Error to the Superior Court of Montgomery county.

Henry Westerman is the husband of Elizabeth Westerman, an'd John F. and Joseph O’Neal are her sons by a former husband. Shortly before her marriage to Westerman, which took place on the 16th day of September, 1867,- and after she had contracted to marry him, Mrs. Westerman *501made a deed of gift to her said two sons of two tracts of real estate, of which she was seized in fee, and upon which part of the purchase-money still remained due to her brother, from whom it had been purchased. Subsequently to the marriage, this balance of purchase-money was collected by the brother from the husband, in an action brought by him against the husband and wife. The husband, thereupon, on the 23d day of January, 1869, brought his action against his wife and her two sons, the plaintiffs in error, charging that the land was subject to a lien for the purchase-money so paid, and that the deed of gift to the sons was made secretly and fraudulently, and without his knowledge or consent, for the purpose of defrauding him of his marital rights, and praying that the deed might be set aside as fraudulent, and the land so conveyed be subjected to the payment of the purchase-money so collected of him.

To the plaintiff’s petition in this action, a demurrer filed by the defendants was overruled by the court. The defendants then answered, denying that there was any lien upon the land for said purchase-money, and denying the charge of fraud, alleging that the conveyance to the sons was made with the knowledge and consent of the husband.

The case was heard by the court upon this issue, and resulted in a finding by the court in favor of the plaintiff, and a decree for the sale of the land, in case the defendants should fail to refund the money so paid. A motion for a new trial on the ground, among other things, that the finding of the court was contrary to the law and the evidence, was overruled by the court, and the defendants took a bill of exceptions embodying all the evidence in. the case.

The action was pending prior to the passage of the act of April 18, 1870 (67 Ohio L. 113), relating to the testimony of husband and wife, and was tried after the taking effect of that act; and the bill of exceptions shows that on the trial of the case the plaintiff was examined in his own behalf as a witness, the defendants objecting to him as incompetent, and that he testified, among other things, to certain communications between himself and wife, and cer*502tain acts done by them in each other’s presence; but whether these acts and communications were in the known-presence of any other person or persons does -not appear.

The bill of exceptions also shows that after the plaintiff had been examined, the defendants moved the court to-exclude his entire testimony, but without discriminating as’ to any particular part or parts thereof, and that no special objection was made to that part of the testimony relating to the communications or acts aforesaid of the husband and wife.

Erom the record it also appears that the wife is possessed, of some personal property in her own right, but the amount thereof, and whether it is exempt from execution, does not appear.

The grounds on which the plaintiffs in error seek to reverse the judgment are sufficiently stated in the opinion of the court.

*William Craighead,*for plaintiffs in error:

I. Hoes the petition contain such allegations as will entitle the plaintiff' not alone to a decree annulling the deed, but further, to a recovery against his wife, and an order on the defendants to refund the money he has paid, or that an order issue to sell the land and refund him this amount out of the proceeds of the land ?

It seems to me that in order to sustain this legal proposition, two others must’ first be established, to wit:

1. That a vendor’s lien is assignable.

2. That a husband may assert it against his wife during the existence of the marriage.

I regard the first proposition as pretty well settled in Ohio, and cite the following authorities :

*Jackman*v. *Halleck,*1 Ohio, 318; *McArthur*v. *Porter,*1 Ohio, 99; *Tiernan*v. *Beam,*2 Ohio, 383; *Brush*v. *Adams,*14 Ohio, 20; *Horton*v. *Horton,*14 Ohio, 443; *Taylor*v. *Foot’s Adm’rs,*Wright, 356; *Schnebley & Lewis*v. *Regan,*7 Gill & Johns. 120; White & Tudor’s Eq. Cases (3 ed.)T *503275, 368; *Ex parte Lauring,*2 Rose’s Cases, 791; 1 Ross on Leg. 634, 635.

If, then, as shown by the authorities above cited, the assignee of a promissory note for the payment of purchase-money can not assert this lien, much less can Westerman,. who voluntarily placed himself by marriage in a position where the *law*makes him liable for the debt, which has become his debt by judgment against him, and who has paid only a lien and incumbrance on his own land, assert this lien against his wife and her grantees, or against her alone,, if the deed was set aside for fraud.

But, for the sake of argument, let us admit that Westerman is a creditor of his wife to the extent claimed, and could be substituted to the vendor’s lien, or, in other words, suppose the vendor himself had not been paid, and had filed this petition against these defendants, would it entitle-him to the relief he prays as against these grantees ?

A bill in equity to enforce a vendor’s lien, or to set aside conveyances as fraudulent against creditors, must show affirmatively that the complainant has exhausted his remedy at law against the personal estate, or must aver such facts as show that the complainant can not have a full, complete, and adequate remedy at law. This hill discloses the fact that Mrs. Westerman has a large amount of *other valuable real and personal property.*If he can subject this property, he can any she has. 1 White & Tudor’s L. C. in Eq. 274; *Pratt*v. *Van Wick,*6 Gill & Johns. 495; *Sail*v. *McCCubbin,*6 Gill & Johns. 107; *Richardson*v. *Stillinger,*12 Gill *&*Johns. 478; *Bottorf v. Connor,*1 Black, 287; *Eyler*v. *Crubbs*2 Md. Ch. 303; Nash Practice (last ed.), 353, No. 6; *McArthur*v. *Porter,*1 Ohio, 99; *Jackman*v. *Halleck,*1 Ohio, 318; *Tiernan*v. *Beam,*2 Ohio, 383; *Williams*v. *Roberts,*5 Ohio, 35; 1 Hill Ch. 466; 13 Ohio St. 263.

But another view, and one which I regard as fatal to the right of this plaintiff to recover, is, by law the husband is liable for the debts of his wife contracted while sole. If merged in judgment against him, during coverture the debt becomes his debt. *Vanderhyden*v. *Mallory,*1 Comst. *504452; *Welden*v. *Welden,*7 Ohio St. 30; *Palmer*v. *Wakefield,*43 E. C. L. 227; *Burton*v. *Burton,*5 Harrington, 441; Tyler on Inf. and Cov. 381, 339; 2 Jones’ Eq. 205; 4 Dessau, 370; *Warren v. Williams,*10 Cusb. 79; *Warren v. Williams,*6 Gray, 559; 2 B. Mon. 99.

The changes made by our statutes regulating the relation of husband and wife do not enable the wife in our state to hold and dispose of her property independent of her husband, and were intended by the legislature not to •enlarge her liabilities to her husband, but to protect her rights; not to create for her new rights, but simply to take away her husband’s control over such as she had. *Smiley*v. *Smiley Adm’r,*18 Ohio St. 543.

The provision of the act of 1870 does not apply to an action pending *between husband and wife,*but enables either to be called, in actions pending between either and any third party, to prove such communication so made, or act so done. To hold that this statute, which is enacted for the purpose of indicating who shall be *incompetent,*makes husband and wife competent for or against each other, would be in effect to declare that language which plainly •expresses itself as referring to one subject really was intended to refer to another.

The court below held that the general rule of evidence is competency, and that the amendment of 1870 is a limitation of the rule. If this be true, I ask, where is the provision of law which changes the common-law rule as to •competency of husband and wife and authorizes them to testify for or against each other, to which this is the exception or limitation ? Eor then it is the rule which permits such evidence, not this clause, which is said to be the limitation of the rule. To make the clause operate as a limitation, the capacity to so appear as witnesses must exist independently of the limitation. If it be a limitation, what •does it limit? Not certainly their capacity so to testify for or against each other, because they are not so competent independent of the clause. If they are thus competent, then it is not the clause which makes them so; and the *505question comes back, are they competent ? They are not at common law, and that they are not made so by any other statute, hence they are not competent at all. To hold otherwise, is equivalent to saying that a statute to make them incompetent in one particular case, makes them competent in all.

The law of 1870 does not apply to this cause, as it was an action pending long prior to the passage of the amendment. Constitution, art. 1, sec. 238; Code, 602; *A. & G. W.*R. *R.*v. *Campbell,*4 Ohio St. 583; *Calkins*v. *Ohio,*14 Ohio St. 222; *Mitchell*v. *Eyster,*7 Ohio, 257; *Hale*v. *Wetmore, 4*Ohio St. 600; *Cochran*v. *Taylor,*13 Ohio St. 387.

*Jordan Linden,*for defendant in error:

We think the purchase-money paid by defendant in error was a charge or lien upon the land.

Henry and Elizabeth were married September 16, 1867, after the passage of the act of March 23, 1866, which limits to the wife’s separate use and control all her property, real and personal.

We-understand the effect of this statute to be to limit to her separate use and control all her property as effectually as it was done at - common law, when words to that effect were used in a conveyance or devise to her. *Bear*v. *Bear,*33 Penn. St. 525; *Gliddin*v. *Taylor, 16*Ohio St. 518, 1st clause.

When property was so limited to her at common law and no trustee was appointed, the husband became trustee for her. Tyler on Inf. and Cov. 441; Story’s Eq., sec. 1380; Clancy on Women, 265 et seq.; 2 Bright on Husb. and Wife, 214.

And we understand this to reserve to her *all*of her property and effects, so that *none*of it passes to him.

The common law gave him all the money, personal property in possession, choses in action when collected, and the use of her real estate during her life, when not limited to her sole and separate use, and made him liable for the ante-nuptial debts. The statute of 1866 denies him all this *506property and effects. Whatever technical reason may have-been assigned for this common-law liability of husband for the antenuptial debts of the wife, it undoubtedly was based on the corresponding benefit that accrued to him in getting’ her property and effects.

Our statute of 1866 (sec. 3) simply provides that the wife’s-property shall also be liable for any judgment rendered against her and her husband on an antenuptial debt.

The tendency of our statutes has been to treat the wife-as a *feme sole*as to all her property rights and obligations.

Although our statute leaves the husband liable for theantenuptial debts of the wife while it denies to him her property, it does, in express terms, make her property liable-for the debt. In this ease it was already liable. Roop had a vendor’s lien on it. He could have executed his judgment against said land, or could have forced payment in equity from it. He was not bound to have forced his-execution against the husband’s property. Henry Westerman’s obligation was only collateral. He was really only surety; he should be subrogated to Roop’s claim.

Under the statute of 1866 the husband became her trustee- ■ to hold said property charged with Roop’s debt, and he-may now be reimbursed out of said property. *Hulme*v. *Tenant,*1 Lead. Cas. in Eq., Hare & Hall Notes, 3 Am., ed. 501-545, especially 515, citing *Nelson*v. *Booth,*5 Weekly Reporter, 722.

If we are right in this, then it seems there is no alternative but to set aside this fraudulent conveyance. Not on the ground that it restores him to his curtesy, but because-this conveyance defrauds Henry Westerman of the rightsRoop held to which he is subrogated. *Neilson & Churchill*v. *Fry,*16 Ohio St. 552.

In support of the second proposition we refer the court to the general doctrine of fraudulent conveyances to defeat substantial rights, which courts of equity always set aside.

*507Welch, J.

The questions raised by the assignments of error are substantially the following :

1. Did the evidence warrant the court in its finding that this conveyance was fraudulent as against the husband, and' that the purchase-money paid by him was a charge or lien-upon the land ?

We need only say as to this question, that we answer it. in the affirmative.

2. Did the court err in admitting the husband to testify as a witness in the case? We think not. As we understand the provisions of law upon the subject, the amendatory act of April 18, 1870 (67 Ohio L. 118), which was in force at the time of the trial, merely makes husband and wife incompetent as to communications made by one to the-other, and acts done by either in the presence of the otheiy and not in the known presence of a third person, and leaves them as to other matters competent witnesses. And the act being purely remedial in its character, applies as-well to cases pending, and causes of action existing at the' date of its taking effect, as to future cases and causes of action. To give it such an application is not to “ affect the pending *“*action ” or “ proceeding ” within the meaning of the act of February 19, 1866 (S. & S. 1), but merely to affect the manner of trying or conducting the-action or proceeding. By the word “ proceeding,” in the-last-named act, is meant, not the steps taken or form of proceeding in an action, but a certain description of *suit*which is not properly denominated an action.

3. Did the court err in refusing to reject the testimony of the husband? It is claimed that even admitting the-husband to be a competent witness, the court should have ruled out that part of his testimony which related to communications and acts of the parties, because the bill of exceptions does not show that any third person was present at the time they were made, or took place. It seems to us that there are two good answers to this objection : (1) Evidence to show the presence of such third person was for the court, and not for the jury, and must he presumed till *508-the contrary is shown; and (2) the motion was too broad, including all the husband’s testimony, without discriminating, or making known to the court the ground on which the testimony was sought to be excluded.

4. Did the court err in the judgment or decree which it rendered — was the plaintiff, upon the fact stated in his petition and found by the court, entitled in equity to set the ■conveyance aside, and charge the money paid by him upon the land ? The answer to this question depends entirely upon the construction of our late statutes upon the subject •of marital rights.. At common law the husband was liable ■during coverture for the debts of his wife contracted before marriage, and damages occasioned by her torts. This was an obligation which rested Upon him, not only as between himself and her creditors, or parties injured by her, but .also as between himself and his wife. The reason of this •obligation was said to be the fact that by the marriage he became the owner of her entire personal estate. By our late statutes this reason or consideration has been completely taken away. As between the husband and creditors of the wife, perhaps, the obligation of the husband still ■exists as at common law. But the question is whether it •still subsists, and whether it has been modified, and how far modified, as between the husband and wife.

By sections 1 and 2 of the act of April 2, 1861, as amended March 25, 1866 (8. & S. 389-391), all the real and personal property of the wife at marriage remains her separate estate. By section 3 it is declared, that “ in any action against the husband and wife upon any cause existing against her at their marriage, or upon any tort committed by her during coverture, *or upon any contract made by her concerning her separate property,*. . . the separate property of the wife shall be *also*liable to be taken for any judgment rendered therein.”

By this statute, was it the intention of the legislature to make the husband’s and wife’s property, as between themselves, equally liable, and to leave it entirely to the whim •or caprice of the creditor upon which he would seek satis*509faction ? If so, it seems to be the only case where a like-legislative intent has been manifested, and seems, moreover, to be manifestly unjust. True, such is the law where a judgment is recovered against joint trespassers; but the reason of the rule there by no means applies to judgments founded on contract — the rule in the case of torts having been established merely as a mode of punishment, or by way of disfavor to wrong-doers. The legislature must have-intended that one or the other of the parties, in a case like-the present, should *be primarily*liable as between themselves,, and every consideration of justice and fair-dealing points to-the wife as that party. If the statute will bear this construction, and we think it will, equity requires that it should be so interpreted. It will be observed that one of the three eases specified, in which the wife’s property is declared to be “ *also*liable ” for the judgment, is a case where-the husband was not liable at common law, and I presume-is not made liable by the statute. I refer to the case of a judgment on the wife’s “ contract concerning her separate property.” By the word “ also,” in the phrase “ also liable,”' in the third section of the act, we do not understand that any *liability of the husband,*or of his property, is implied. No such liability had been declared in the preceding part of the statute. But we understand this word “also,” in the-third section, as referring to the *ownership of the wife,*declared in the preceding sections. The legislature intended to sayr not that *the husband should• be liable,*and the property of the wife should be “ also liable,” but that the property of the wife should be *separately owned by her,*and should be “ also liable” for the judgments recovered in the three cases-named.

If this is the true interpretation of the statute, it follows that the court below rendered the right judgment in the ease. By the payment of this debt the husband became-the creditor of his wife, as well as entitled to be subrogated to the rights of her brother, and to enforce the lien which-the latter held against the land; and in either character, he* *510was entitled to set aside the fraudulent and voluntary conveyance, and subject the land to the payment of the debt.

But the record shows that the wife had other property, .and it is claimed that this should have been exhausted before going upon the land so fraudulently conveyed. We know of no such rule in equity. As to creditors, a fraudulent sale of land is absolutely void. The creditor may levy his judgment upon the land, and cause it to be sold for the satisfaction of his judgment, and the fraudulent ■sale will be held a nullity, irrespective of the other property of the debtor. Besides, there is nothing here to show the -amount of the wife’s other property, or whether it is liable to be taken or subjected to the payment of the debt.

There are other questions raised and argued by counsel in the case, but the view thus taken of it renders their consideration unnecessary.

*Judgment affirmed.*

McIlvaine, C. J., White, Rex, and Gilmore, JJ., concurred.