The opinion of the court was delivered by
Valentine, J.:*4441. Irrelevant instructions. *4452. Married women. Power to make purchases, and to carry on *443The plaintiff in error, Thomas W. Tail-man, who was defendant below, was sheriff of Bourbon county. He levied an execution on a stock of goods, and sold the same as the property of Edward Jones. Afterward Emeline M. Jones, the defendant in error, plaintiff below, and wife of said Edward Jones, sued said Tallman for the value of said goods. The real question litigated was, who *444did said goods belong to — to Edward Jones, or to his wife Emeline M. Jones? The sheriff found the goods in the possession of Edwai’d Jones, but Emeline M. Jones claimed the same as her property. She claimed that they were in the possession of Edward Jones merely as her agent, and therefore that his possession was in fact her possession. The court below instructed the jury that “the exclusive, peaceable possession of goods and chattels, under a claim of ownership, is prima facie evidence of ownership, and a person in such possession may maintain an action against a mere trespasser, and recover the full value of such goods.” This is good law in the abstract, although we do not see that the instruction has any application to this case. Mrs. Jones did not have possession of the property at all, except through her agent, Mr. Jones; and Mr. Jones who had actual possession of the property never claimed to own the same. As against every person except Mr. Jones, or some other person claiming under him, Mrs. Jones had constructively the legal possession of the property; for as against such persons the possession of Mr. Jones was merely the possession of Mrs. Jones. But as against Mr. Jones, or some person claiming under him, Mrs. Jones did not have possession of the property at all, or at most she did not have that kind of possession which proves ownership. In the present case the sheriff claims under Mr. Jones by virtue of said execution and levy, and therefore has a right to rely upon Mr. Jones’ actual possession of the property; and hence we think the instruction is inapplicable to the present case. Actual possession and ownership were not united in the same person, as they should be in order to prove a prima facie case of ownership. But the instruction is merely inapplicable. We cannot see how it could have misled the jury, or in any other manner have prejudiced the rights of the plaintiff in error. The court below did not give the slightest intimation as to who had the possession of said property. The court did not even intimate that the possession of Mr. Jones could under any circumstances be construed to be the possession of Mrs. Jones. *445Besides, there was ample evidence besides possession, and even against the possession, of Mr. Jones, to prove prima fade that Mrs. Jones was the owner of the goods, and there was nothing shorn to rehut this prima fade ease. The evidence clearly shows that Mrs. Jones purchased said goods herself, and for herself, and that she purchased them from a person not her husband, and that her husband did not and was not to pay for them. She was to pay for them. She purchased them, however, on credit; and she and her husband gave their promissory notes, and a mortgage on the goods and on a certain piece of real estate to secure the deferred payment for the goods. And prior to the purchase of said goods Mrs. Jones had no separate estate of her own. In whom the title to said real estate was vested, however, is not shown. Mrs. Jones expected to pay for said goods from sales made thereof, and it was not intended or expected that Mr. Jones should pay any portion thereof. Section 4 of the married woman’s act reads as follows:
“Sec. 4. Any married woman may carry on any trade or business, and perform any labor or services, on her sole and separate account; and the earnings of any married woman, from her trade, business, labor or services, shall be her sole and separate property, and may be used and invested by her in her own name.” (Gen. Stat., 563.)
And under the facts of this case and the foregoing statute the only questions to be considered are as follows: First, is said §4 confined in its application to such married women only as have separate estates, or may it apply to “any married woman” who “may carry on any trade or business on her sole and separate account?!” Second, if said section may apply to any married woman, then may a married woman who has no separate estate prior to her entering into 'trade or business, purchase property to carry on such trade or business, and make that property as well as her subsequent earnings from such trade or business her sole and separate property? We must answer both these questions in the affirmative. The statute provides that “any married woman” (and this in-*446eludes all married women,) “ may carry on any trade or business,” etc.; and if “any married woman may carry on any trade or business,” then by necessary and unavoidable implication she must be allowed to possess and own everything necessary to carry on that trade or business. Other portions of the married woman’s act provide for a married woman owning other property, separate and apart from her husband. For instance, § 1 of said act provides that all property owned by a woman prior to her marriage, and the rents, issues, profits and proceeds thereof, and all property which may come to her by descent, devise, bequest, or the gift of any person except her husband, shall be and remain her sole and separate property. The latter part of said § 4 provides that “the earnings of any married woman from her trade, business, labor or services shall be her sole and separate property.” While the first part of said § 4 provides, as we have before said, by necessary and unavoidable implication that all property necessary to cany on the trade or business of a married woman may be owned by her and be her sole and separate property, she may never before have owned any property, and although she may have had to purchase such property on credit. Any other construction of the statute would be virtually saying that no married woman except such as previously have a separate estate of their own can engage in any kind of trade or business.
3.Trespass* damages. The mere fact that Mrs. Jones mortgaged said goods does not authorize any person except her mortgagee, or some person pla-imixig under him, to take the property from her, and if any such person other than the mortgagee or some person claiming under him does so take said property, he is liable for more than merely nominal damages.
Counsel for plaintiffs in error say in their brief as follows: “This court will take judicial notice that M. V. Voss is judge of this district, and not C. W. Blair.” What is meant by this language it is difficult to understand. There is nothing in the record except a certain bill of exceptions that *447shows that the case was tried or judgment rendered by any person except the regular judge of the district court of Bourbon county. ■ On the contrary, the record with the exception of said bill of exceptions, would seem to show that the case was regularly tried and judgment rendered by the regular judge of said court. It is true, said bill of exceptions shows that the case was tried and judgment rendered by C. W. Blair, judge pro tem. of said court; but the bill of exceptions was allowed and signed by C. W-. Blair, judge pro tem. Now, if C. W. Blair was not regularly selected as judge pro tem., or if he had no authority in the case, then he could not allow and sign said bill of exceptions, and the same should be stricken from the record; and if said bill of exceptions were stricken from the record, then the plaintiff in error would not have the shadow of a foundation upon which to allege error. The whole case of the plaintiff in error in this court is founded upon said bill of exceptions.
The judgment of the court below must be affirmed.
All the Justices concurring.