Plaintiff was an execution creditor of defendant Hines, residing in Holt county. Under the execution, the clerk of a public sale of personal property advertised and sold as that of Plines, was garnished by the sheriff. Defendant’s wife claimed that among the property thus sold as that of her husband, was a cow belonging to her, and that the money arising from a sale of the animal was hers. On the answer of the garnishee showing the conflicting claims to this money, in which he asked that he be allowed to pay the money into court and that the parties inter-plead, it was so ordered, no objection appearing. On a trial of the wife’s interplea, the judgment in the trial court was in her favor and the plaintiff in the execution appealed.
The evidence is short. It showed that Mrs. Hines’ father gave her a cow at her marriage, about fifteen years before the trial. She kept her several years when her husband (the defendant) sold her. In about five
It was further shown by the evidence that her husband and she were about to remove from the State and her husband arranged for a public sale of his personal property. It seems that the property of some neighbors was, at their request, included in the advertisement and sale, and so was Mrs. Hines’ cow, though this did not appear in the advertisement;. that is to say, so far as the advertisement and sale were concerned, the property appeared to be defendant’s.
Plaintiff asked a demurrer to the evidence, which was refused. He then asked an instruction to the effect that although the cow was Mrs. Hines’ property at the time of the sale, yet if she permitted it to he sold as that of her husband, then she is estopped from claiming the proceeds of the sale. Both these declarations were refused; and we think rightfully.
The mere fact that the wife as an owner of property permits her husband to include it in a public sale of his property, will not, as a matter of law, make the property the husband’s on the claim of an execution creditor. To have that effect there must be some element of estoppel in it; and of that there was no evidence. The case is wholly unlike that of Riley v. Vaughan, 116 Mo. 169, cited by plaintiff. The instruction does not submit the hypothesis of the advertisement of the cow leading plaintiff into the expenditure of money, or that it even caused him to make the levy, or that it caused him to alter his position to his detriment. It stops short at the mere permission by the wife that the cow be sold and declares that act, which, standing alone is harmless, to be an estoppel as a matter of law.
The judgment is affirmed.