CHARLESTON.

#### Standard Mercantile Co. *v.*Ellis *et al.*

Decided November 24, 1900.

1. PURCHASE With Wife’s *Money*— Resulting *Trust.*

Where property has been purchased with the wife’s money,! and, without her knowledge or consent, the deed is made in¡g the husband’s name, a resulting trust arises in her favor, which will he enforced by a court of equity, (p. 311)'.

2. Wife’s *Estoppue*— When?—Greditor’s *Right.*

The wife will not be estopped from setting up such trust by permitting the legal title to remain in her husband’s name unless *310it appear that credit was knowingly extended to the husband on the faith of his apparent ownership, (p. 311).

Appeal from Circuit Court, Logan County.

Bill by the Standard Mercantile Company against D. P. Ellis and others. Decree for defendants, and plaintiff appeals.

*Affirmedl.*

J. B. WiLKiNSON, for appellant.

PI. K. ShuMate, for appellees.

Dent, Judge:

The Standard Mercantile Company instituted suit in the circuit court of Logan County against D. P. Ellis and others for the purpose of enforcing two certain judgment liens it claimed against a certain house and lot, the title of which appeared to be in said Ellis. Other judgment creditors were made parties to the suit. Sarah Y. Ellis filed her petition, therein claiming the property was her separate property, purchased with her separate funds, and by mere inadyertance without her knowledge or consent, the title thereto had boon vested in her husband, and prayed the same might be discharged from the judgment liens. The court permitted the petition to be filed, and to stand for her answer, to which the plaintiff replied generally. On final hearing the court decreed the land to Mrs. Ellis, free from the judgment liens.

The plaintiff appeals. It objects to the petition, because process was not issued thereon against the other defendants. Of this it has no right to complain, because not injured thereby. The other defendants made no objection in the circuit court, and are not making any here. The appellant will only be heard as to such errors as prejudices its rights -and not those which only prejudice the rights of others, whether parties to the suit or not. *Furbee*v. Shay, 46 W. Va. 736. So the only question presented is as to whether the property is liable for plaintiff’s judgment liens. The proof appears to plainly establish that the property was paid for with the wife’s money, and was to be deeded to her, but that the title bond, without'her knowledge or consent and apparently without his knowledge was taken in his name. When she discovered this she sent the title bond by her son to have a *311deed for the property made to herself. In the meantime the obligor having died suit had to be brought against his heirs to obtain the title for the property. This suit was brought in the name of the husband., and a commissioner was appointed to make a deed, who followed the title bond and the decree without the wife’s knowledge or consent. When her husband found it out and made inquiry concerning it, he was informed by the commissioner who was her lawyer, that he had to follow the title bond. This appears to have been the same lawyer who is now representing the plaintiff in this suit. His evidence is not taken to contradict Mr. or Mrs. Ellis’ statements with regard to the matter, and therefore so far as his knowledge goes they must be taken to be true. There is no fraud alleged or shown in evidence, and the whole matter is narrowed to the single question as to whether the judgment liens present a superior equity to that of the wife. Undoubtedly she has a resulting trust in the property which is superiorato the judgment liens, unless she has been guilty of such *laches*or negligence as estops her from setting it up against such liens. The property was purchased for her in October, 1890. Before a deed was obtained therefor the vendor died. In 1893 a suit was instituted to obtain the deed from the vendor’s heirs and on the 4th day of September, 1893, a decree was entered directing a deed to be made. Plaintiff instituted its suit in 1895 to enforce its judgment liens. There is no evidence showing that D. P. Ellis ever held himself out to be the owner of the property, or that the indebtedness on which the judgments are founded' was contracted or credit given on the strength of such ownership. While the wife shows that as soon as she found out the condition of the title she endeavored to get it transferred to herself. “It is well settled that a married woman will not be estopped from claiming title to real estate as against the creditors of her husband and where it does not appear that the credit was extended to the husband upon the faith of the apparent ownership.” 15 Am. & En. En. Law, (2d Ed.) 804; *DeVore*v. *Jones,*82 Iowa 66; *Scrutchfield*v. *Santer,*119 Mo. 615; *Hamilton*v. *Steele,*22 W. Va. 348; *Churchill*v. *Morse,*23 Ia. 220. Judgment liens will be limited to the actual interest of the judgment debtor in the property. *Farmers Transportation Co.*v. *Swaney,*decided at this term; *Snyder*v. *Bodkin,*37 W. Va. 355; *Renick*v. *Luddington,*20 W. Va. 569; *Pack*v. *Hansbarger,*17 W. Va. 313; *Snyder*v. *Martin,*17 W. *312Va. 276. The plaintiff appears to rely merely on an estoppel against Mrs. Ellis setting up claim to the property as against the creditors, yet it nowhere appears by allegation or proof that credit was extended, to the husband on the faith of his apparent ownership. While the decisions touching a wife’s rights are at variance, some jurisdictions holding there must be bad faith or fraud on her part to create an estoppel, *Deberry*v. *Wheeler,*128 *Mo.*84; *Kemp*v. *Folson,*14 Wash. 16, and others that actual bad faith or fraudlent intent are unnecessary, *Hopkins*v. *Joyce,*78 Wis. 443; *Pierce*v. *Hower,*142 Ind. 626, yet all agree that it must appear that credit was extended to the husband on the faith of his apparent ownership. Plaintiff’s case is entirely defective in this respect. The decree is affirmed.

*Affirmed.*