The opinion of the court was delivered,
by
A&new, J.
This mechanics’ claim was filed against Byron Woodward as the owner, and Thomas S. Foulkrod as the contractor, for the erection of a building upon ground alleged to belong to Byron Woodward. He has filed an affidavit of defence to the scire facias on this claim that the title of the ground is in his wife, and that he contracted for the building for his own benefit, and -not for the benefit of his wife, or at her instance or *211in her behalf. Is this a good defence to a claim against himself as owner? We have held in Finley’s Appeal, 17 P. F. Smith 453, that such a claim is no lien upon the estate of the wife, and that her title cannot be sold upon it. Even the curtesy interest of the husband in her estate of inheritance cannot be levied and sold upon the levari facias since the Act of 1st April 1863, § 1: Brightly’s Dig. 1306, pi. 1. And even before the Act of 1863 the curtesy interest of the husband was not liable to sale during the lifetime of the wife: Act 22d April 1850, § 11; Brightly’s Dig. 700, pi. 16. It is evident, therefore, that the only interest liable to the lien of the mechanic in this case is an estate of Byron Woodward, held in his own right and upon his own independent title. Now if the creditor alleges that the property is his and not that of his wife, on what principle can her title be set up as a defence in the scire facias ? It is nothing to her whether judgment goes against her husband in this proceeding, for it is wholly inoperative as to her estate, or as to the estate of the husband derived by the curtesy from her. She is no party to the proceeding, and cannot intervene to prevent the creditor from having his remedy against the proper and independent title of her husband. Much less can the latter set up her title in Ms own defence. A judgment against him can be levied only of his own estate or title. To that he sets up no defence. If the title be that of the wife or of the husband by curtesy only, neither she nor he can be dispossessed. The purpose of the Act of 1850, and still more of the Act of 1863, was to prevent the wife from being deprived of the benefit of her estate through the derivative interest of her husband; for to drive him from the possession is effectually to deprive her of the enjoyment of her own property. But to the creditor who asserts that the property is her husband’s and not hers — that the deed to her is but a trust, the property being bought and paid for by him — the right to judgment on the claim is essential. Without it he cannot sell the title of the husband, and place himself or another as a purchaser at sheriff’s sale in a position to contest her claim to the property by ejectment. To allow the husband to set up a title in his wife in defence to a claim against his own title, would shut the door against the proof of the fraud, or else compel the purchaser at sheriff’s sale to fight over the battle waged upon the scire facias; for Mrs. Woodward would not be concluded by the verdict without being brought in and made a party to the scire facias and the trial. We think the . affidavit of defence was therefore insufficient.
Judgment affirmed.