
    Charles Fleckham v. Samuel Black.
    [Kentucky Law Reporter, Vol. 1 — 164.]
    Purchase of Store by Married Woman.
    The creditors of a husband are not injured by the wife’s purchasing' a store with money that cannot be subjected to the payment of the husband’s debts. A married woman may invest the proceeds of the homestead for her separate use with the consent of the husband, and with an action then pending enabling her to trade as a feme sole.
    
      APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.
    June 16, 1880.
   Opinion by

Judge Pryor:

If the notice for judgment on the bond was defective, the subsequent proceedings of the appellant cure any defect that existed. The execution levied on the property is conceded, and the only question raised by the plea to the merits is that the property was owned by the appellant, and not by the execution debtor. The execution of the claimant’s bond prevented the sale, and whether given before or after the return of the execution is immaterial. The levy was certainly made, and appellant asserted his claim of ownership; that question was tried and decided adversely to him. The testimony, we think, shows a sale of the goods to the wife of the debtor. The parties were placed in the possession. No account was kept after the appellant surrendered the possession, indicating that he was the owner; but, on the contrary, the purchaser from him sold the goods, received the money, and even replenished the stock, all on the idea that Mrs. Kesel was the owner of the property. Conceding, however, that Mrs. Kesel was the owner, and this is a fact that cannot be questioned, the proof further shows that the goods were to be held liable for the purchase money, and that the appellant was holding the possession in conjunction with the wife of . the debtor to satisfy the lien. That such was the agreement of the parties is clearly established, but it is maintained that such an agreement cannot affect the rights of the creditors.

It certainly could not if Kesel were the purchaser, but in this case the wife was the purchaser, and with means that the creditor could not have subjected to the payment of his debt. This money the wife was entitled to, at least, by the agreement made with the husband, and a suit was then pending to enable her to act as a feme sole, and when determined, this money that belonged to the wife, atid which could not have been subjected by the creditor, was to be paid over to the appellant.

After the judgment was obtained authorizing the wife to act as a feme sole, the money, or part of it, was paid over to appellant!, leaving a balance due him. Such a sale to the wife never vested the husband with title, and particularly when the vendor was in the occupancy, or had the possession jointly with the wife until his money was paid. In what manner is the creditor injured when a purchase is made by the wife with money that cannot be subjected to the payment of this debt, and for enabling her to hold it as a feme sole? Facts may exist evidencing fraud, but here the proceeds of the homestead were invested by the wife for her separate use, with the consent of the husband, and with an action then pending enabling her to trade as a feme sole.

Harrison & McGraw, for appellant.

Jas. P. Burton, Kohn & Barker, for appellee.

The vendor of the wife held the goods by continuance with her as a partner until his debt was paid. If so, her goods "cannot be taken until his debt is satisfied, or the appellees must pay him the balance due. The wife is not complaining. The judgment as to appellant is reversed, and cause is remanded for further proceedings. This case should go to equity if the lien of appellant is not conceded.  