
    Charles Pierson, Assignee, etc. v. Elizabeth Smith, by Next Friend, etc.
    Where the separate property of a wife, which is protected by statute against the claims of her husband’s creditors, is lost or destroyed by the wrongful act of a third party, the same protection is to be extended, for her benefit, to any judgment which she may recover against the wrong-doer for the value of the property so lost or destroyed.
    
      The fact that such judgment has been obtained in the name of the husband is not conclusive evidence of a reduction to possession by the husband. The presumption arising therefrom may be rebutted by proof that the action was prosecuted at the instance of the wife, and for her sole benefit; the name of the husband having been used merely as that of trustee, holding the legal title for the benefit of his wife, without any intention on his part to appropriate the chose in action to his own use.
    A controlling effect will be given, in such cases, to the clear intention of the parties.
    Error to the Superior Court of Cincinnati.
    The plaintiff in error brought suit in the Superior Court of Cincinnati, against one T. K. Smith, the husband of defendant in error, on an account for merchandize sold; *and, as auxilliary to. his action, sued out process of attachment, seeking to subject to the satisfaction of his claim a judgment previously rendered, and then remaining unsatisfied, in favor of said T. K. Smith, against the Cincinnati, Hamilton and Dayton R. R. Co., for baggage of his wife (the defendant in error), lost while she was a passenger on said company’s road.
    The main action proceeded to judgment in favor of the plaintiff in error. But, in regard to the attachment, the defendant in error came in and claimed (by an answer, which was received and treated as a petition) that the judgment attached was her separate property, and not liable to be attached for her husband’s debts, and praying for a dismissal of the attachment, for injunction, etc.
    To this petition of the wife the plaintiff in error answered, denying the allegations of her petition.
    The issue, thus raised, was tried by the court, and found in favor of the wife, whereupon the attachment was dismissed, and an injunction ordered, as prayed for by her.
    This judgment on the case presented by the petition of the defendant in error, is now sought to be reversed on the grounds : 1. That the court erred in finding that the contents of the trunk lost by the railroad company were the separate property of the wife, and not the property of the husband ; and, 2. That the court erred i n finding that the judgment against the railroad company for the value of the lost trunk and contents, though rendered nominally in favor of the husband, in an action prosecuted in his name, might still be, and, under the evidence in this case, was, in fact, the separate property of the wife,' and as such, was not liable to be attached for the payment of his debts.
    The evidence in the case shows that the contents of the trunk, when lost, consisted of articles constituting the personal wardrobe of the defendant in error, together with articles of plate and jewelry, which were exclusively her property, a portion thereof being heir-looms, and the ^residue being presents to her from friends and relatives of her family ; and that owing to the embarrassed circumstances of her husband, she had been mainly supported and clothed by her grandfather and other relatives.
    It further appears from the evidence that suit for the recovery of the value of the trunk and contents, was originally brought at the solo instance of the defendant in error, who, by letter, employed an attorney for that purpose; that the attorney, in the exercise of his judgment, commenced the action in the joint names of Thomas K. Smith and Elizabeth his wife; and that, upon demurrer to the petition, he amended by dropping the name of Elizabeth Smith as a party plaintiff, in order to avoid a question of technicality, and proceeded to judgment in the name of Thomas K. Smith alone.
    
      Collins & Herron, for plaintiff in error, cited Dixon’s Adm’r v. Dixon et al., 18 Ohio, 113.
    
      Piatt, for defendant in error.
   Scott, J.

The act of February 28, 1846, “ in relation to the interest of husbands in the estate of their wives ” (Swan’s Stat. 712, 713), provides as follows:

Sec. 3. No interest of. a husband in any chose in action, demand, legacy, or bequest of his wife, shall be liable to be taken, by any process of law or chancery, for the payment of his debt, unless such husband shall have reduced the same to possession; so as, by the rules of law, to have become the owner thereof in his marital rights,” etc.

“ Sec. 4. All articles of furniture and household goods, which a wife shall have brought with her at marriage, or shall have come to her by bequest, gift, or which shall have been, after marriage, purchased with her separate money or other property, shall be exempt from liability for the debts of her husband, during the life of the wife, and during the life of any heir of her body.”

*We think there is no room for doubt, in this case, that the trunk, with tho wearing apparel and other articles, which it contained, were the separate property of Mrs. Smith, and that, under a fair and reasonable construction of the section last cited, according to the manifest spirit and policy of the act, all these articles were exempt from liability for her husband’s debts.

But the defendant in error, against her will, has been deprived of these articles of property, by the wrongful act of a third party, against whom a judgment has been recovered, in the name of her husband, for their value. And it is now claimed that the fund into which her property has thus been converted, has, by means of the premises, been reduced to the possession of the husband, so as to become liable for his debts. Is thi3 so?

That a husband may reduce to possession a choso in action of the wife by recovering a judgment thereon, in his own name, during coverture, is unquestionably true. Dixon’s Adm’r v. Dixon, 18 Ohio, 113. But will the law conclusively give this effect to the recovery of such a judgment, without regard to the intention of the parties ? •

To effect a reduction to possession of a chose in action, there must bo some act done by the husband, evincing an intention to appropriate it to his own use. A recovery of judgment thereon, in his own name, is certainly prima facie evidence of such intention. Such recovery of judgment, if obtained in the assertion of his marital rights, would be a conclusive act of appropriation. But the presumption of an intention to appropriate the chose in action to his own use, which arises from the mere use of his name in a suit prosecuted and judgment rendered thereon, may, we think, be rebutted by circumstances. Even the reception of payment by the husband, would not constitute a reducing to possession, if, in the transaction, lie acted merely as the agent of his wife, and not in the exercise of his marital rights. And we think the circumstances shown by the evidence in this case, clearly disprove *any intention, on the part of T. K. Smith, to appropriate his wife’s property to his own use. He may perhaps have acquiesced in the use of his name by his wife, in a suit brought at her instance, to recover tho value of her own property lost by the wrongful act of a third party. But in this, it is fairly to be inferred that he acted merely as a trustee, holding the legal title for the benefit of his wife. Being unable to repair her loss from his own means, he had no equitable or moral right to do or intend otherwise, to her preju-dice; and there is no evidence of any such inequitable purpose on his part.

It is very clear that the defendant in error has never intended to part with her interest in the property; and the husband having anade no intentional appropriation of it to his own use, wo think the debt sought to be attached by the plaintiff in error is, in equity, atill the property of the wife, and as such, is protected by the statute as against the creditors of her husband.

Judgment of Superior Court affirmed.

Brinkerhoff, O. J., and Sutlief, Peck, and Gtiolson, JJ., concurred.  