Montgomery and Wife v. Sprankle and Another. A motion for a new trial was overruled. The evidence is made a part of the record by a bill of exceptions. The complaint, as well as the testimony, shows that the appellant Emily J. Montgomey was, during all these transactions, the wife of the appellant James Montgomery. The proof shows that the real estate described in the complaint was the property of the wife, conveyed to her long before these transactions with the appellees, and that no part of the purchase money had been paid out of the means of the husband. The only grounds on which the court below could have based its decree against the property of Emily J. Montgomery were, that she held herself out as the partner of her husband, and that her property gave credit to the pretended firm. It is clear that a married woman cannot bind herself as a partner with her husband. Her contracts during coverture are void. The appellees were bound to know the law. They knew when they were dealing with Montgomery & Co. that Emily J. was a married woman, and they were legally bound to know that her contracts were void. How can it be said, then, that her property gave credit to the pretended firm? It is claimed, however, that a married woman may charge her real estate by contracting debts. This record does not present a case in which equity would give relief by charging the wife's separate estate. We shall therefore not enter upon that question. The court erred in overruling the motion for a new trial as to Emily J. Montgomery. The judgment is réversed as to Emily J. Montgomery, with costs, and affirmed as to James Montgomery, with costs; and the cause is remanded, with direction to grant a new trial as to Emily J. Montgomery, and for further proceedings. J. E. McDonald, A. L. Roache, and D. Sheeks, for appellants. W. March and W. Brotherton, for appellees. Bellows and Others v. Rosenthal. COPELAND . CUNNINGHAM and Wife. MARRIED WOMAN.-Separate Property.-Rents and Profits.-The ruling in Kantrowitz v. Prather, page 92, ante, adhered to. APPEAL from the Marion Civil Circuit Court. ELLIOTT, C. J.-This was a suit to subject the rents and profits of the real estate of the wife, Maria Cunningham, to the payment of a debt contracted by her during coverture, for a stock of milliner's goods purchased by her for her daughter. The court sustained a demurrer to the complaint. The correctness of that ruling is the question presented in this court. The contract had no connection with the real estate of the wife. The debt was not contracted for its repairs or improvement, or to secure to her its use and enjoyment. Nor does it appear that she intended thereby to charge the rents and profits of her estate. The contract was void at law, and, under the ruling in Kantrowitz v. Prather, at this term, is not such an one as equity will enforce against the rents and profits of the wife's separate estate. It follows, that there is no error in the ruling of the Circuit Court on the demurrer. Judgment affirmed, with costs. J. L. Ketcham and J. L. Mitchell, for appellant. BELLOWS and Others v. ROSENTHAL. MARRIED WOMAN.-Separate Property.-Husband's Debts.-Evidence.--A married woman carried on the business of a clothing merchant in her own Bellows and Others v. Rosenthal. name, employing her husband as a clerk, the money invested in the business having been received by her during coverture, through a trustee, as a gift from her brother, to be invested in such business, and when so invested to be under her sole control, the business to be carried on in her name and for her sole use and benefit, and in the event of her death the money to go to her children by her said husband. Ield, that personal property purchased by her with the proceeds of said business was not subject to the debts of her husband. Held, also, in a suit by such married woman to recover such personal property levied upon under an execution issued on a judgment against her said busband, that there was no error in admitting in evidence a written agreement between her said brother and said trustee, under which the money was advanced to her, its excction having been proved. APPEAL from the Clark Circuit Court. GREGORY, J.-This was an action for the possession of personal property, by the appellee against the appellants. The court below on a trial of the issue of fact found for the plaintiff, and overruled a motion for a new trial. The appellee is the wife of Bernard Rosenthal,and has been for some twenty years. Some fourteen years ago the husband failed in business at Louisville, Kentucky. On the 1st of August, 1860, one Schlaughter, a brother of the appellee, advanced the sum of three thousand dollars under a written instrument signed by himself and one Silberman, the trustee of Mrs. Rosenthal. That writing is as follows: "I, Joseph Schlaughter, &c., have this day appointed Levi Silberman of &c., trustee for the purposes hereinafter named. Whereas I have this day delivered to Levi Silberman the sum of three thousand dollars, to be held by said Silberman for the sole use and benefit of my sister-in-law, Mrs. Barbette Rosenthal, wife of Bernard Rosenthal, which sum of money is to be invested in a general clothing business by said Silberman, for the use of Mrs. Barbette Rosenthal solely, said Silberman is hereby authorized to hand over to Mrs. Barbette Rosenthal, or to any person she may select, said sum of three thousand dollars, to be invested as above; and said sum when so invested is to be under the sole control of said Barbette Rosenthal, the business to be carried on in her name and for her sole use and benefit; and when so in Bellows and Others v. Rosenthal. vested said Barbette Rosenthal is to be solely liable for all debts and demands that may arise or be contracted during the prosecution of the business; and said Joseph Schlaughter and Levi Silberman are not to be held liable for any debts or demands whatever that may accrue during the prosecution of said clothing business. Said Silberman hereby assumes the trust herein created; and in the event of the death of said Silberman or said Schlaughter, then said sum of three thousand dollars is to be vested fully in said Barbette Rosenthal and subject wholly to her control; and in the event of the death of said Barbette Rosenthal, then said sum of three thousand dollars is to be vested in her husband, Bernard Rosenthal, for the sole use and benefit of the children of said Barbette and Bernard Rosenthal. Whenever said Levi Silberman shall file with said Schlaughter the receipt of said Mrs. Barbette Rosenthal jointly with her husband, Bernard Rosenthal, said Silberman shall be discharged fully from the obligations of this trust, said receipt specifying when and to whom said sum of three thousand dollars had been paid." With this money the appellee engaged in the clothing business in Jeffersonville, in this State, in her own name, employing her husband as a clerk. The property in controversy was purchased by the appellee with a part of the proceeds of this business. Mrs. Rosenthal, on her cross examination, states that the money was borrowed; and another witness says, "I think she was to pay the money back." There is no evidence. that the husband ever joined with his wife in a promise to pay back the money. It is possible from the evidence that the court below might have found that Mrs. Rosenthal promised to return the money to Schlaughter. But we have a right to assume that the court did not so find. And such a finding would have been in face of the written instrument under which the money was advanced. By that instrument the money was a gift to the appellee, and in case of her death, to go to her children by her present husband. Richardson v. Hittle. And, moreover, a promise by the appellee to return the money would have been void, as she was laboring under the disability of coverture. We think the court below was warranted in finding that the money came to the appellee during coverture, by gift, and that under the statute (1 G. & H. 295) it was the separate property of the wife, and the proceeds thereof are not subject to the debts of the husband. The appellants claim the property under a levy on an execution issued on a judgment against the husband. The court below committed no error in admitting in evidence the written instrument under which the money was advanced, its execution having been proved. Judgment affirmed, with costs. J. H. Stotsenburg, T. M. Brown, and J. Reid, for appellants. G. V. Howk, R. M. Weir, J. G. Howard, and J. F. Read, for appellee. RICHARDSON v. HITTLE. DURESS.-Pleading.-An answer setting up coercion must aver the facts constituting it. SAME.-Husband and Wife.-Much less force or putting in fear by a husband will amount to coercion which will avoid the deed of his wife than would be necessary coming from a stranger. SAME.-Wife's Separate Property.-Mortgage.-Suit upon a note payable in bank and a mortgage to secure the same, executed by husband and wife and assigned to the plaintiff. Answer by the wife, showing that the note and mortgage were given for the debt of the husband, and that the land mortgaged was the separate property of the wife, and averring, "that she was induced by the persuasions of said payee and the coercion of her said husband to execute said note and mortgage." Held, that the answer was bad on demurrer. APPEAL from the Decatur Common Pleas. GREGORY, J.—Suit by Hittle against the appellant, Mary |