#### Wm. McGowan, &c. *v.*Wm. Burton.

Husband and Wife — Sale of Property — Vendor and Purchaser.

A husband cannot divest his wife of her interest in lands, by transferring • a note given her for the purchase price thereof; in' exchange for another .note, the latter of which became worthless by reason of the bankruptcy of the maker of the last note. .

Same.

The husband cannot, without the consent of his wife, evidenced as prescribed by law, pass her title to realty, nor destroy her fight of' retainer she holds upon the legal title to her land, to secure the payment of the purchase price.

APPEAL PROM HENRY CIRCUIT COURT.

October 8, 1870.

Opinion- op the' Court by

Judge Lindsay :

Sallie E, Burton, now McGowan, was tbe owner of one-tbird .of a tract of .land containing about 112 acres situated in Henry county. In tbe year 1865, sbe (being then unmarried) sold ber interest in said lands to ber uncle,."William Burton, for five hundred and sixty dollárs, to be due and payable on the 1st of' March, 1866. Sbe shortly afterwards intermarried with appellant, William McGowan, who was an infant and who did not attain his majority until tbe 27th of March, 1867.

Some time during tbe year 1866, Wm. Burton induced McGowan, who was still an infant, to surrender to him tbe notes be bad executed to bis wife for the purchase price of ber land, and to accept in lieu.of a balance due thereon, tbe joint note of bis son, G. W. Burton, and one Adams, who were partners in the mercantile business.

On the 28th day of March, 1867, tbe day after McGowan became of age, Burton and Adams induced him to surrender to them tbe joint note given by them, and in lieu of tbe same executed to him a new note due one day after date for tbe sum of $177.65. Shortly after tbe execution of tbe note, Burton and Adams became insolvent and William Burton. filed bis petition in bankruptcy.

*408
      *Pryor, for appellants.*

On the *27th*of July, 1867, Sallie E. McGowan and her husband brought suit in the Henry Circuit Court setting up these facts, and ashing that the land sold to William Burton be subjected to the payment of the balance due on the same as evidenced by the note of Burton and Aclaras, at the same time rendering to said William Burton their deed of conveyance to the land. Hpon the trial of this action the court dismissed their petition and adjudged a conveyance of the land to Burton, and from that judgment they appeal.

Whether the sale to William Burton was in writing or parol, the legal title to the land remained in Mrs. McGowan, and she could only be compelled to convey when it was shown that she had received the full amount of the purchase money as agreed upon by her. Her husband, it is true, could collect or dispose of her choses in action, but he could not without her consent evidenced as prescribed by law, pass her title to realty, nor destroy the right of retainer she held upon the legal title to her land to secure the payment of the purchase price.

It is clear that the note of Burton and Adams for $177.65 is for a balance due her on the sale of her land. It has not been paid, and the Circuit Court should have subjected the land to the payment of the same, before decreeing a conveyance to William Burton. The judgment is reversed and the cause remanded for further proceedings- consistent herewith.