Thompson's Appeal

Chief Justice Mercir,

delivered the opinion of the Court, January 5th, 1885.

If is well settled law that when a wife has a separate estate, and buys property on the credit of that separate estate, she may hold it against the creditors of her husband : Silveus’s Ex’rs v. Porter, 24 P. F. S. 448; Seeds v. Kahler, 26 Id. 262; Sixbee v. Bowen, 10 Norris 149; Lochman v. Brobst, 6 Out. 481.

The facts found show that the land referred to in this bill was purchased by Mrs. McElroy, and paid for out of her separate estate, and that no part of the consideration which she paid therefor came to her from her husband. It was therefore not liable for his debts, and the sale on an execution against him passed no title to the appellant. The facts stated were well known to the latter before this bill was filed. He had brought two actions of ejectment for the land based on his purchase as the property of her husband. Each case was brought to'trial. Both parties gave all their evidence. After counsel had addressed, and the court had charged the jury, the appellant (then plaintiff) took a voluntary nonsuit in each case. There is no after discovered, or additional evidence tending to impair the validity of the title of the appellee. Nevertheless with this full knowledge that his pretended title is worthless, the appellant intended, and threatened, to bring another action of ejectment against the appellee, for the same land, and on his same pretended title. These acts and declarations of the appellant have cast a cloud on the title of the appellee. The Master also found that the appellant has not maintained his claim to the land in good faith, but that he continues to harass the appellee and demand money as the price of peace under the cloak of purchasing his title, which constitutes such a fraud as to give her a right to seek aid from a court of equity: Lyon’s Appeal, 11 P. F. S. 15.

The Act of 11th April, 1848, declares the property of a married woman shall not be subject to levy and execution for the debts or liabilities of her husband. As therefore it is contrary to both law and equity to thus sell it, a court of equity will enjoin against the sale: Hunter’s Appeal, 4 Wright 196; Lyon’s Appeal, 11 P. F. S. 15.

The case is therefore within the jurisdiction of a court of equity. The sale, under the facts clearly proved, was contrary to law, and the continued threat of annoyance is prejudicial to the interests of the community and the rights of the appellee. Equity is part of the law of this state. The rules of equity are as binding as those of law: Hawthorn v. Bronson, 16 S. & R. 269. The appellee has no adequate remedy at law. She is in possession of the property. She cannot therefore bring ejectment. Twice has the appellant practically admitted that he has no claim to the land. His pretended claim has become a fraud upon the appellee, and should be extinguished: Story on Eq. Juris. §711; High on Injunctions § 872. The able report of the Master, affirmed by the court, fully sustains the decree.

Decree affirmed and appeal dismissed at the costs of the appellant.