
    Mary E. Shaeffer v. Fithian, Jones & Co.
    An insolvent debtor purchased real estate for his wife, talcing the title in her name, and as a gift to her advanced and paid $2,460 of the purchase money 'and cost of the property, the wife paying the balance, which was $4,000. On a bill filed by a creditor of the husband, to subject the property to the payment of a debt of less than 532,460, the court ordered the property to be sold, and that twenty-four hundred and sixty sixty-four hundred and sixtieths of the proceeds of sale be applied in payment of the debt. Held, that this decree was not erroneons to the prejudice of the wife, and that she was not entitled to be first paid her $4,000 out of the proceeds.
    
      Motion for leave to file a petition in error.
    In the action below, Eithian, Jones & Co. sought to subject to the payment of a judgment of $1,132.85, which they held against Valentine Shaeffer, certain real estate, the title to which was vested in Shaeffer’s wife, on the ground that the same had been purchased by the husband, and the conveyance made to the wife to defraud creditors, the husband being at the time insolvent. Issue was taken on the case made in the petition, and on the hearing the court found that the husband negotiated the purchasé of the property while insolvent, and caused the title to be taken in his wife’s name; that the purchase was made in good faith, for the benefit of the wife, and without any actual intention to defraud creditors; that $4,000 of the purchase-money for the property was paid by the wife, out of her own money; that ¡$2,460 (including $460 paid for taxes) was paid by the husband ; and that said sum of $2,460, paid by the husband, was intended as a gift to his wife, he being at the time indebted to Eithian, Jones & Co. in said sum of $1,132.85. Upon this finding, the court decreed that the property should be sold, and that, after paying prior liens upon it, f Í'um the remaining proceeds of the sale should be applied in payment of said judgment of Eithian, Jones & Co.
    Leave is now asked to file a petition in error to reverse this decree, on the ground, among others, that the court should have ordered $4,000 of such remaining proceeds to-be paid to the wife, and only have applied the remainder in satisfaction of the judgment, thus throwing any loss arising from depreciation of the property upon the creditors, and not upon the wife.
    
      A. V. Schaeffer, for the motion.
    
      J. A., Jordan, contra.
   "Welch, C. J..

"We see no error in this decree to the prejudice of the wife. She might well have been regarded as •the sole owner of the property, and the quasi debtor of her husband. As such, she would be bound to bear the whole loss arising from depreciation of the property. The court below seems, however, to have considered the husband’s interest as a kind of resulting trust in the property, making him in equity a tenant in common. This was certainly the most favorable view in behalf of the wife that could have been taken of the case. It results in saddling the loss arising from depreciation pro rata upon both parties. Of this, we think, the wife has no right to complain.

Motion overruled.

White, Rex, Gilmore, and MoIlvainb, JX, concurred.  