Page:History of Woman Suffrage Volume 3.djvu/1059

964 "This act protects the wife's interest in her separate property both as to title and possession," but "does not empower her to convey her real estate by a deed in which her husband has not joined," nor "create a lease without his concurrence," nor "execute an obligation for the payment of money or the performance of any other act," nor in any way dispose of her property save by gift or loan to him; she may bind her separate estate for his debts, and in security for the loan she may take a judgment or mortgage against the estate of the husband in the name of a third person, who shall act as her trustee (18 Penn. St. R., 506, 582; 21, 402; I Gr., 402; 6 Phila., 531; Pur. Dig., 1,007, 21).

The husband is the natural guardian or trustee of the property of the wife; but by application "to the Court of Common Pleas of the county where she was domiciled at the time of her marriage," the court will appoint a trustee (not her husband) to take charge of the property secured to her by the act of 1848. This act, however, does not authorize the appointment of a trustee, to the exclusion of her husband, of property owned by her prior to the passage of the act, nor was it intended to affect vested rights of husbands and does not protect them for the wife's benefit against the claims of creditors (10 Penn. St. Rep., 398 and 505; 18, 392 and 509; 21, 260; I Jones, 272).

In a clear case the wife's real estate cannot be levied upon and sold by a creditor of the husband, but the burden of proof is upon her to show by evidence "which does not admit of a reasonable doubt," that she owned the property before marriage or acquired it subsequently by gift, bequest, or paid for it with funds not furnished by her husband nor the result of their joint earnings. The wife's possession of money is no evidence of her title to it (18 Penn. St. Rep., 366; 7 Phila., 118).

If no property, or not sufficient property, of the husband can be found, the separate property and goods of the wife may be levied upon and sold for rent or for debts incurred for the support of the family (Purd. Dig., 1,006, 15; 38 Penn. St. Rep., 344).

A married woman's bond and warrant of attorney are absolutely void, nor can she make a valid contract except for a sewing-machine or for the improvement of her separate property, and her bond given or a judgment confessed by her for such debt is void (24 Penn. St. Rep., 80; Act of 1872, Pur. Dig., 1,010).

She may sell and transfer shares of the capital stock of any railroad company, but cannot herself or by attorney transfer certificates of city loan (28 Leg. Int., 116; Act June 2, 1871).

A married woman cannot enforce her rights against third persons, either for the performance of a contract or the recovery of her property, without her husband join in the suit, although the party contracting with her is liable to an action (1 Gr., 21; Act of 1850 and 1839; 6 Phila., 223).

If divorced or separated from her husband by his neglect or desertion, she may protect her reputation by an action for slander and libel; but if her husband is the defendant, this suit, as also for alimony and divorce, must be in the name of a "next friend." She is entitled to a writ of habeas corpus if unlawfully restrained of her liberty (Purd. Dig., 510, 12; 513, 24; 754, 1).

The wife of a drunkard or profligate man by petitioning the Court of Common Pleas, setting forth these facts and his desertion of her and neglect to provide for her and their children, may be entitled to the custody of her children, and, as a "feme sole trader," empowered to transact business and acquire a separate property, which shall be subject to her own disposal during life, and liable for the maintenance and education of her children. Her testimony must be sustained "by two respectable witnesses" (Pur. Dig., 692, 5; Act of 1855, 2; 2 Roper, Husband and Wife, 171, 173).

By act of April, 1872, any married woman having first petitioned the court, stating under oath or affirmation her intention of claiming her separate earnings, is entitled to acquire by her labor a separate property which shall not be subject to any legal claim of her husband or of his creditors, she, however, being compelled "to show title and ownership in the same." The husband's possession of property is evidence of his title to it; not so with the wife (Purd. Dig., 1,010, 38, 39; 4 Lansing, 164; 61 Barb., 145).