170 Pa. 84 | Pa. | 1895
Opinion by
We agree with the learned counsel for the appellants in much of his criticism upon the manner in which this case was tried in the court below. The right of Mrs. Bollinger to recover did not depend in any sense upon the weakness of the title of the defendants, but upon the legal sufficiency of her own. It was evident from her case in chief that she was a married woman, claiming property that had belonged to her husband, and that her contest was with her husband’s execution creditors. It was indispensably necessary for her to show a purchase of the property by herself, valid in character, made exclusively
The other was a question of law for the court, viz, how could Mrs. Bollinger, a married woman, acquire a valid title to property as against her husband’s creditors under the laws of Maryland, the state in which she was living when the alleged acquisition took place ?
The second question was answered in the language of sec. 19 of the Code of Maryland, 1878. A married woman may acquire a valid title by purchase, and when the purchase has been made in good faith with her own separate monej’-, or upon her own credit, she may hold the property so purchased for her separate use. The case then went to the jury upon the question of fact stated above. The title set up was by purchase. The purchase was made by the plaintiff upon credit. The question of fact narrowed itself therefore to whether the credit was given to Mrs. Bollinger and her sureties, or was in part at least given to her husband. The security given was a note. The husband’s name appeared on this note and, unexplained, justified the conclusion that his credit entered into the transaction. It became necessary therefore to account for the fact that his name appeared upon the note, which it is alleged was accepted as payment wholly upon the credit of Mrs. Bollinger and her sureties. For this purpose evidence was given by the testimony
Upon this evidence the learned judge said to the jury that if it was belieyed, and the jury should find from it that the credit was given to Mrs. Bollinger by the vendees of the property, and by the sureties who became liable for the payment of the note, and not to her husband, “ then under all the decisions and under a true and proper interpretation of the statute law of Maryland which I read to you, she acquired by the purchase, on credit though it was, and on a note joined in by her husband though it was ; still if it was her credit that induced these sureties to become sureties, and not her husband’s credit to any degree, then she acquired a title to the property that she can hold against her husband’s contemporary creditors. And that is a question for you to determine.” We.think this was a correct submission of the question on which the case turned. It is true the learned judge told the jury that the joining of the husband was necessary in order to make the note of his wife a binding obligation upon her. It is also true that no authority in the way of express enactment, or exposition of the Code of 1878 by the Maryland courts, is cited by the learned judge or brought to our attention by the counsel for the appellee that lays down the rule upon this subject in the terms in which it was stated by the court below.
But the jury was not directed to disregard the joinder of the husband because the law required it of him in aid of his wife’s separate undertaking, but the purpose and effect of his joinder were left for the jury to determine under the evidence relating to the transaction; with the direction that if they believed this was not a good faith purchase by the wife upon her separate credit but a plan to cover up the property and keep it from the husband’s creditors then “ this statute which was enacted for the
One other subject requires attention. It is brought to our notice by the eleventh assignment of error. Millard F. Taylor, a member of the Baltimore bar, was called as a witness and testified that he was familiar with the law of Maryland relating to husband and wife. He was not then examined as to what the law was held to be by the courts of that state on any subject relating to husband and wife, but was informed by counsel that it was his purpose to put a hypothetical question to him. Before this question was framed an offer was required and it was accordingly reduced to form thus: “ Defendants propose to prove by the witness that if a wife of an insolvent debtor in Maryland who purchased property while the husband was in insolvent circumstances, giving in payment therefor her promissory note signed by herself and her husband as joint makers, and two sureties, such a purchase would not be so exclusively on the wife’s credit as to give title to the property as against the husband’s creditors under the Maryland law.”
It should be noticed that this is not an offer to prove what the law of Maryland is as held by its courts, but an offer to show by the witness what, upon the facts assumed in the hypothetical question, his own conclusion is as to what would be held by the courts of that state. The question reached after the opinion of the witness as to what the courts would hold, not after his knowledge of what they had held. The statutes of another state or country may be proved by a properly authenticated copy. The unwritten law of such state or country may be shown by the decisions of the oourts or by the testimony of a witness who is familiar with it: 1 Greenleaf on Ev. 488; Chesapeake Ins. Co. v. Starke, 6 Cranch, 273; but such evidence is to the court, and for its information. The jury must take the law from the court. The law of another state upon a subject coming under notice in the trial of a cause will be presumed to be the same as the law of this state upon the same subject. It is incum
Upon a consideration of the whole case the assignments of error are overruled and the judgment is affirmed.