Olsen v. Kern , 1882 Ill. App. LEXIS 267 ( 1882 )

Wilson, P. J.

The instruction of the court was clearly unwarranted. It is undisputed that Olsen and Anderson obtained a good title to the goods purchased by them at the sheriff’s sale on the Standish execution. By that sale so much of Halvorson’s property went to satisfy the claim of a creditor, judicially ascertained and fixed, and by the purchase Olsen and Anderson became the absolute owners of the goods, freed from any and all claims of Halvorson’s creditors. They could thenceforth make any disposition of the goods they saw fit. The sale was open and public, and other bidders were present. There is no evidence of any collusion or improper conduct on their part in respect to it; on the contrary, being.guarantors on the note upon which the judgment and execution were based, it was their right, and was only an act of common prudence to attend and bid if necessary, in order to prevent the property from being sacrificed and to protect themselves from liability for any deficit.

Having thus become the absolute and undisputed owners of the property, if they saw fit to convey it to Mrs. Halvorson, either for, or without, a consideration, or even with the express and avowed purpose of placing it beyond the reach of her husband’s creditors, they had the undoubted right to do so, and such conveyance could not be called in question by his creditors. If the goods in the hands of Olsen and Anderson, as purchasers at the sheriff’s sale, were beyond the reach of Halverson’s creditors, upon what principle will it be claimed they are less so in the hands of any third person other than Halvorson, to whom they have transferred them? The case is too plain for argument.

It needs the citation of no authorities to show that a wife may, from means obtained from a source other than her husband, employ her husband to act as her agent in the control and management of the same, without thereby losing her right of property as against the husband’s creditors. Here there was no evidence that Mrs. Halvorson purchased the goods in question from means furnished by her husband; on the contrary, it appears affirmatively that the means came from her own separate estate.

From these considerations it is manifest that the assumption contained in the instruction, that there was no evidence tending to sustain the plaintiff’s case was unwarranted. Indeed it is difficult to perceive why the evidence did not show a valid title in the plaintiff’s intestate, at least as to such portion of the goods seized on the Ellison execution- as were conveyed to her by Olsen and Anderson. And as to the goods subsequently purchased and added to the stock, if any remained on hand at the time of the seizure, it was a question of fact whether they were the property of Mrs. Halvorson or her husband, which should have been submitted to the jury.

The judgment is reversed and the cause remanded to the court below for a new trial.

[Reversed and remanded.