(dissenting). I cannot concur in the result reached by my brethren in this case. I think the judgment should be affirmed. There can be no doubt, it seems to me from a perusal of the testimony, but that the defendants had full knowledge of the situation of all the parties, and the true relation each sustained to the property, and, while it is a little difficult to classify the interest of the plaintiff, its true character is apparent, and it is clearly manifest that justice and equity require that the judgment should be affirmed. Otherwise the evident intention of the husband of plaintiff, by the aid of the defendants, to cheat the plaintiff out of her debt will be accomplished, and this should not be permitted. It will not help the plaintiff's case to say, “we will allow you to take a better writ if we do send you out of court,” for the costs and expenses of the litigation will soon exhaust her claim, even if she is successful. But why should she now not have her money in the suit she has brought? The-conversion of the property in which she held the interest was complete under our own authorities. She was neither joint tenant nor tenant in common of the property in which her interest existed. She was the owner until her debt was satisfied, and should be so treated. No other course will preserve her rights; and, *664when so considered, there can be no question but that the present action is correct, even in form.
There is nothing in the learning or teachings of the law requiring a person’s property to be sacrificed in his or her attempt to enforce a just claim, in order that the nature or character of a claim may be classified, and the practice and form of action adopted and usually resorted to in such cases applied thereto. Litigation, as at present conducted is- too expensive, under our system of practice, to allow such a course to be pursued. In this case I think the record shows a fair trial has been had upon the merits. The jury have passed upon the facts, and the spirit of the law is with the plaintiff, and the judgment at the circuit ought not to be disturbed. Under the facts stated in the record, the rights of the plaintiff are in their nature equitable as well as legal, and, in my judgment, assumpsit is peculiarly an appropriate remedy in her case, and it is a reproach to the administration of the law which fails to secure such rights to her when she comes into court and asks its protection against the unwarrantable course pursued by these defendants.
The judgment should be affirmed, with costs.