#### Riegel *et al. versus*Wooley and wife.

1. A brother, owning store goods, gave them to his sister, a married woman, she to provide for his unpaid notes from their proceeds; goods in the store had been paid for as a condition of the gift. *Held,*that this did not take from the transaction the character of a gift and convert it into a sale.

2. A husband being in embarrassed circumstances sold the goods of his store, which was kept in his dwelling-house, to his brother-in-law. The business continued to be carried on in the same place, was managed by the husband in the brother-in-law’s name; he afterwards having sold all the articles bought in the course of the business except a few fixtures, and increased the stock in value by new goods, gave them to the wife, she agreeing to provide for two notes of her brother, and the business, was carried on in the same way and place by the husband, and in his name as agent, etc. *Held,*under the facts in the case, that this was not a legal fraud, and the questions of actual fraud, and whether the transaction was a gift or sale to the wife, were properly submitted to the jury.

3. The Court below submitted to the jury whether the sale by the husband to her brother was fraudulent, charging that if it was, the wife acquired no title to the goods from the gift. *Held,*to be correct.

4. The Court below charged that if the transaction between the brother and sister were a purchase on her credit, she could not recover. *Held,*to be correct.

March 4th, 1875.

Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, and Paxson, JJ.

Error to the Court of Common Pleas of *Schuylkill*County, of January Term, 1873, No. 330.

This was a feigned issue under the Sheriff’s Interpleader Act, in which James Wooley and Elizabeth his wife, in her right, were plaintiffs, and Jacob Riegel & Co. were defendants.

On the 11th of December, 1871, Jacob Riegel & Co. recovered a judgment against James Wooley for $1736.18, on which a fi. fa. was issued and certain goods levied on, September 25th, 1872, as the property of Wooley. Mrs. Wooley claimed to be the owner of the goods, and on the 2d of November, 1872, this feigned issue was directed by the Court.

The case was tried March 10th, 1873, before Pershing, P. J. The plaintiff gave in evidence a bill of sale from James Wooley to John W. Bedford of a list of clocks, watches, etc., generally, the contents of a watchmaker and jewellery store in Shenandoah, Schuylkill County; also, a show case and safe, which were part of the goods levied on under Riegel’s execution. The consideration was $351.13.

The plaintiff gave also in evidence a bill of sale, dated March 23d, 1872, from Bedford to Mrs. Wooley, who was his sister, “ in consideration for value received to me in hand paid by Elizabeth A. Wooley, at and before the sealing and delivery hereof,.....all the stool? of goods in a jewellery store (now in charge of James Wooley), .... now remaining and being in tne house occupied by James Wooley, Shenandoah City, to have and to hold, . . . ., to the said Eliza*228beth A. Wooley, .... to her only proper use and behoof forever.”

Bedford testified that Wooley had resided at. Shenandoah for nearly three years, and had been engaged in mercantile business there three years ago; he was sold out by the sheriff in the spring of 1871 ; he afterwards commenced repairing watches and clocks ; his trade was watchmaker and jeweller; in February, 1871, he asked witness to assist him to start him in that business ; witness gave him his note for $300; it was'discounted for Wooley, and witness took it up; he asked witness again to assist him ; ¿witness declined, but offered to take his tools and what little stock he had, allow him what they were worth, and “run the concern myself for the benefit of my sister, Mrs. Wooley. He took an account of stock: I paid him for them and then increased the stock by putting in more means ; the business was left in the charge of Wooley, in my name.....I carried on the business for nearly a year, put in additional funds, and had at one time about $800. I was going West and transferred the stock to my sister, on condition that she would provide for two notes that I had out; they were not paid by me. I placed everything and left for Missouri. I am worth $20,000 or $25,000. Wooley had nothing after his failure; lie had six or seven children, all small. My sister had no other way of supporting herself and children than the aid I gave her; I extended it to her to support herself and family.”

On cross-examination he said: “ He had been doing a larger business at New Philadelphia; he was station agent for the railroad company ; he was in the dry goods and grocery business at Shenandoah for nearly a year; he continued doing business in the jewelry shop in his own name until June, 1871, when I bought him out; his family lived in the same building where the store was. I am not a watchmaker or jeweller. I continued to live in Mahanoy.City; never went to Shenandoah to take charge of it; Wooley attended to the business; he attended to it as before; bills, a good many of them, made out in my name; some made out in the name of Wooley as agent, but I paid them; the proceeds of the business went to support my sister’s family. Wooley had sole and exclusive charge of the business; he received money when my sister was not there ; she was in the store a great deal; he never rendered me a written account; I kept an account of the investments I made; Wooley took the account of stock; I left it all to him ; I had to depend altogether oh him as to prices, without, referring to bills. The only consideration I received for assignment was that the notes should be taken up; Wooley had had them discounted and *229got the proceeds ; I do not know who took the notes np; I never put a sign either in front or in the store; had it advertised in the papers in my own name. One of the notes was. dated February 6th, 1872, drawn by Bedford, in favor of Wooley, payable in two months at the Shenandoah Bank, for $250, indorsed by Wooley and F. Bedford; the other note, dated February 27th, 1872, was drawn by Bedford in favor of Wooley, payable in two months at the Shenandoah Bank, for §17,5 ; it was indorsed by Wooley and Francis Bedford.” There was no evidence as to who took the notes up.

Wooley testified that the goods had been given by Bedford to his wife; witness had no interest in them then ; after she got the goods she carried on the business and he managed it for her; the business was in her name ; the levy may have been of some of the goods Bedford had transferred to her; the purchases were in the name of James Wooley, as agent of his wife ; he had no money in the business. The goods were taken by Bedford from witness at cost; of the goods sold by witness to Bedford, the sherifflevied only on safe and case; the stock was changed all the while by sales.

On cross-examination he said his wife did not spend much time in the store, he attended to that; the store was carried on in his name as agent; his family lived continuously in the house during the time; he continued to live out of the business after he sold to Bedford ; kept no particular account of what it took;' Bedford’s money was not a loan to witness ; no money was paid to Bedford on the transfer to Mrs. Wooley; witness paid Bedford some money out of the business; could not say how much ; kept no account of it. The debt to Biegel & Oo. was contracted in 1867.

This witness corroborated Bedford’s testimony.

Mrs. Wooley testified that Bedford gave her the goods. Her husband had nothing in the business. Bedford made her “an absolute present of the stock.” She paid him nothing whatever.

The plaintiff closed.

The defendants offered no evidence.

The plaintiff’s points which were affirmed are as.follows:

1. If John W. Bedford bought *bona fide*the stock of goods owned by James Wooley, on the 12th day of June, 1871, for a full and fair consideration, and took the delivery of the same, and thereafter the business was carried on by him, and in his name, such sale would not be void in law as a legal fraud.

2. If the jury believed that John W. Bedford was the actual and *bona fide*owner of the goods in the store in question on the 23d of March, 1872, and on that' day transferred the *230stock to Mrs. Elizabeth Wooley, that the business was carried on in the name of Mrs. Wooley, and that the stock levied upon was the renewal and product of the original stock transferred to her as above stated, such stock and goods would not be Hablé to seizure as the property of James wooley, and the plaintiff is entitled to the verdict.

The defendants submitted a number of points, which are substantially covered and answered in the charge.

The Court charged: . . . .

“In this State, a married woman who claims to hold property against the creditors of her husband must show by clear and satisfactory proof that it is *bona fide*her own, and that she acquired it in one or more of the ways mentioned in the act of Assembly of 11th of April, 1848, known as the Married Woman’s Act: That she bought the property and paid for it herself is not sufficient, she must in addition show that the money was her own, and from what source she received it. To quote from a few of the very many decisions on the point, it has been held that where property is claimed by a married woman as against the creditors of her husband, she must show, by evidence which does not admit of a reasonable doubt, either that she owned it at' the time of her marriage, or else acquired, it afterwards by gift, bequest, or purchase. In case of a purchase after marriage, the burden is upon, her to prove distinctly that she paid for it with funds which were not furnished by her husband. In the absence of such proof, the presumption is a violent one that the husband furnished the means of payment. A.nd this rule applies as well to purchases of real as of personal property. The fact that real estate was paid for with the wife’s earnings or savings, does not give her a separate estate in the property under this act; the husband is entitled in his own right to the earnings of his wife during coverture. Nor can she acquire and hold, property against tije creditors of her husband, by carrying on a mercantile business in her own name, with capital lent to her for that purpose. The husband is the owner of goods thus purchased, as he is also of the proceeds, of the joint skill and labor of himself and wife.’ .....

“ In this case you will .remember that Mrs.. Wooley does not pretend that she purchased the goods levied on by Riegel & Co. Her allegation is, that the store was a gift to her by her brother, John W. Bedford, whose ownership of the goods was derived by purchase from James Wooley, on the 12th day of June, 1871. The defendants in this action assail the transaction between Wooley and Bedford as a fraud upon creditors, and as being void as to them. If they are correct *231in this position, Bedford acquired no title to the goods by his purchase from James Wooley, and, therefore, legally had nothing to give in the way of this stock of jewelry goods to his sister, the wife of James Wooley, and the plaintiff* in this issue.”

The Court then gave to the jury a synopsis of the evidence.

“Now we submit to you whether this sale, made by Wooley to Bedford, his brother-in-law, was an honest, fair transaction, entered into, as Wooley states, with a view of assisting him in maintaining his large family, or whether it was merely a colorable sale, made with a view to hinder, delay, or defraud the creditors of James Wooley. In sales of personal property, in order to protect it in the hands of the vendee from the creditors of the vendor, there must be a change of possession, — a delivery with the *bona fide*intention of really changing the possession as well as the title. If the circumstances of the sale and delivery be in accordance with those that usually and naturally accompany such a transaction, it cannot be declared a legal fraud. In this case no creditors were pressing Wooley at the time of his sale to Bedford, nor was the judgment of Riegel & Co. obtained till nearly six months afterward. Mr. Bedford went to the store, examined it, satisfied himself that the schedule was all right, and gave notice of the purchase through the newspaper of the town where the store was located. The business, including the purchases of new stoekfrom time-to time, Avas in his name, and he furnished the means to carry it on. Wooley testifies that no money of his Avas contributed for the purpose, and that he had no means whatever of his OAvn. On the other hand, the' place of business was not changed, and Wooley lived with his family in the house Avhieh he had rented, the same as before his sale to Bedford. Bo these facts and circumstances, and all the other facts and circumstances in the case, satisfy you that the parties to this transaction were honest in their intentions and acts ? that- the sale was made in a way natural and usual as the parties Avere situated? or do you believe that the sale was a sham, intended to prevent the creditors of Wooley from collecting their honest claims ? If you find the sale Avas not an honest one, thát it Avas a fraud upon the creditors, you need inquire no farther. Your verd-ict must be for the defendants, if, however, you shall find that the sale made by Wooley to Bed-ford was a fair, open, honest transaction, and that it vested the stock of goods in Mr. Bedford, then you must take another step in the inquiry, and ascertain by what right Mrs. Elizabeth Wooley, the plaintiff in this issue, claims the ownership of the goods levied upon by the defendants for the debt *232of her husband. The defendants allege that Mrs. Wooley purchased the goods from her brother, John W. Bedford, upon credit, and rely upon the deposition of Mr. Bedford himself to establish the fact. Both Mr. and Mrs. Wool'ey testify that Mr. Bedford made a gift of the store to Mrs. Wooley. A gift is that which is transferred from one to another without consideration. Delivery is essential, and must be according to the nature of the thing.-”

The Court then stated the substance of the testimony bearing on the question of the gift.

“Now, was this a gift from John W. Bedford to Mrs. Wooley? or was it a purchase, on credit, on her part from him ? Defendants contend that the condition to lift the two notes he mentions, makes Mrs. Wooley a purchaser on her own credit, and that this being her status before the Court, the goods were liable to levy and sale for her husband’s debts. You will recollect that the money raised on these notes was used to purchase goods for the very store transferred by Mr. Bedford to his sister, Mrs. Wooley. Might he not naturally look to her to pay these notes, and still intend to make, and believe that he did make a gift of the store to his sister? No money was paid by Mrs. Wooley, nor were any obligations for future payment given at the time she succeeded to the store. What then was the intention of the parties ? Did they intend and understand it to be a gift or a purchase? If .the transaction between John W. Bedford and Mrs. Wooley was a purchase on her credit, then we instruct you she cannot maintain this action.”

The verdict was for the plaintiffs. The defendants sued out a writ of error, and in various specifications assigned the answers to the points and the instructions in the charge for error.

*BE. B. Graeff*and *A. W, Skal/c,*for plaintiffs in error.

It is fraud per se, if the possession does not follow as well as accompany the transfer of chattels, etc.: Young *v.*McClure, 2 W. & S., 151; Milne *v.*Henry, 4 Wright, 358.

When goods are purchased at a private sale, it must be shown that the vendee took and kept possession of them; otherwise the contract is *conclusively*presumed to be fraudulent as against the creditors of the vendor: Dick *v.*Cooper, 12 Harris, 220; Born *v.*Shaw, 5 Casey, 292; Hoffner *v.*Clark, 5 Wharton, 545; Brawn *v.*Keller, 7 Wright, 104; Worman *v.*Kramer, 23 P. F. Smith, 378 ; Davis *v.*Bigler, 12 Id., 248; Trunick *v.*Smith, 13 Id., 18; McKibben *v.*Martin, 14 Id., 352; Bentz *v.*Rockey, 19 Id., 71; Miller *v.*Garman, Id., 134; Garman *v.*Cooper, 22 Id., 32.

*233A vendee of the stock of a hotel took possession and controlled its management for eight days, the vendor with his family remaining in the house, and acting under the direction of the vendee; there was no apparent change in the conduct of the business. This possession in the vendee was concurrent, and therefore fraudulent and void as against the vendor’s creditors. . . . After the eight days the vendee removed, and surrendered the possession to the vendor. This would have rendered it void, even if the vendee’s possession during the eight days had been exclusive. ... In order to render a sale of goods valid against creditors, the change of possession must be both actual and continued. Miller *v.*Garman, 19 P. F. Smith, 134; Garman *v.*Cooper, 22 P. F. Smith, 32.

Against this host of authorities, which might be indefinitely increased, there are a few cases where the peculiar circumstances were considered as allowing a deviation from the rule. The latest and strongest of that class, and the one on which the learned judge below relied, is Hugus *v.*Robiuson, 12 Harris, 9. But that was not parallel to the present case, for there the vendee took and retained actual, exclusive, and continued possession, and the former owner only occasionally assisted in the store, while the business was conducted by the vendee and his son, who also had the key to the premises. And in Hoofsmith *v.*Cope, 6 Wharton, 53, the case relied on in Hugus *v.*Robinson, the decision was based on the very fact that the vendee had the actual, visible, and notorious possession.

Chief Justice Black dissented in Hugus *v.*Robinson ; and the case is of questionable weight, for though cited by counsel in the analogous cases of Brawn *v.*Keller and Miller *v.*Garman, it was disregarded, and the general rule by us above stated was again and again sustained, and pronounced inflexible and conclusive.

It was a fraud in law, without regard to the intent of the parties, and became a question for the Court and not for the jury to decide, there beiug no evidence that the possession accompanied and followed the transfer ; the Court therefore erred in instructing the jury that if they believed it was a fair, honest, *bona fide*sale, etc.: Young *v.*McClure, 2 W. & S. 151; Carpenter *v.*Mayer, 5 Watts, 483; Dornick *v.*Reichenback, 10 S. & R., 90; Dewart *v.*Clark, 12 Wright, 413.

As to the proof required from a married woman claiming-property adverse to the creditors of her husband. Rigid proof of her title is always required, and nothing can be dispensed with which may be required to exclude even a suspicion of unfairness or collusion : Gamber *v.*Gamber, 6. *234Harris, 366 ; Keeney *v.*Good, 9 Id., 355 ; Hoar *v.*Axe, 10 Id., 384 ; Auble *v.*Mason, 11 Casey, 261; Winter *v.*Walter, 1 Wright, 155; Black *v.*Nease, Id., 433; Rhoads *v.*Gordon, 2 Id., 280 ; Parvin *v.*Capewell, 9 Id., 89.

As regards creditors, all the money and personal property of the family are presumed to belong to the husband, aDd all the earnings of the family are conclusively presumed to be his : Walter *v.*Reamy, 12 Casey, 410; Topley *v.*Topley, 7 Id., 328 ; Hallowell *v.*Horter, 11 Id., 375 ; Robinson *v.*Wallace, 3 Wright, 129; Baringer *v.*Stiver, 13 Id., 132; Hoffman *v.*Toner, Id., 231; Aurand *v.*Schaffer, 7 Id., 363 ; Gault *v.*Saffin, 8 Id., 307; Curry *v.*Bott, 3 P. F. Smith, 403 ; Bucher *v.*Ream, 18 Id., 421.

*J. W. Bickel*and *John W.*Ryan, for defendants in error.

The law requires only such a delivery as is consistent with the nature of the thing sold. In this case Bedford fulfilled every requirement of law. The vendor was his servant, bound to comply with his directions, and could not resist his taking all the property contained in the bill of sale: Hoofsmith *v.*Cope, 6 Wharton, 53. If the circumstances of the sale and delivery be in accordance with those that usually and naturally accompanj^ such a transaction it cannot be declared a legal fraud: I-Iugus *v.*Robinson, 12 Harris, 9. If there are facts showing a beneficial interest in the vendor in the business after the sale, these are facts for the jury, and if there be evidence of an actual transfer of the possession and control of the property, the sale will be sustained: McVicker *v.*May, 3 Barr, 224; Forsythe *v.*Matthews, 2 Harris, 100; Dunlap *v.*Bournonville, 2 Casey, 72.

Reparation of the property from the vendor’s possession means only a change of his relation to it as owner, and consists in the surrender and transfer of his power and control •over it to the vendee : Billingsley *v.*White, 9 P. F. Smith, 464. Where there has been a sufficient delivery, actual or Constructive, and the vendee is in possession, the fact that the vendor is employed about the establishment in a capacity holding out no *indicia*of ownership, is not such a concurrent ownership as the law condemns, and the question is for the jury : McKibben *v.*Martin, 14 P. F. Smith, 352.

The gift being valid, the wife had the power, under the act of 1848, to sell the goods given her, and invest the promeeds in other goods which she could hold for the purposes •of sale and trade, beyond the reach of her husband’s creditors: Wieman *v.*Anderson, 6 Wright, 311. Between strangers open, visible, notorious, and exclusive possession is the test of title in all cases where the rights of creditors are involved. *235But this is not possible with reference to the personal goods of a married woman. She cannot have or use her property exclusively unless she lives apart from her husband. It was not the intention of the legislature to compel a separation in order to save the wife’s rights, but if the rule of exclusive possession were adopted, the statute would be inoperative as long as they live together: Gamber *v.*Gamber, 6 Harris, 3G6.

Judgment was entered in the Supreme Court, March 15th, 1875.

Per Curiam :

But few of the assignments of error in that case are properly made. Only one question is presented upon those that are properly assigned, and this arises on the gift of John W. Bedford of the goods in question to his sister Mrs. Wooley. The questions upon this branch of the ease were fairly and properly submitted by the Court to the jury, and their verdict settles the fact that Bedford made a gift of the goods and not a sale to his sister. This being so, no question arises as to the payment of any money by Mrs. Wooley. The provision that certain debts should be paid out of the avails of the goods being found to be a mere condition attached to the gift, by which so many were devoted to the payment of these debts of the donor, did not make the gift of the remainder less available. It was simply a gift subject to an appropriation of a certain portion to others.

Judgment affirmed.