[71]*71Opinion by
Chief Justice Hobson
Affirming.
In the year 1897 the trustees of the Fordsville Graded Common School District issued bonds to the amount of $4,000 on behalf of the district for the purpose of providing it with a lot, schoolhouse and suitable furniture. The bonds were sold, and the trustees used the proceeds of the sale in buying a lot, building a schoolhouse, and furnishing it. But no vote of the legal voters of the district was taken before the issual of the bonds, and they were adjudged void under sec. 157 of the State Constitution: “No county, city, town, taxing district or other municipality shall be authorized or permitted to become indebted in any manner or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void. Nor shall such contract be enforceable by the persons with whom made; nor shall such municipality ever be authorized to assume the same. ’ ’
The holders of the bonds, being in part the original purchasers and in part persons who had bought the bonds from them, instituted this action in equity, asking that the lot, house and furniture which was purchased with the proceeds of the bonds be transferred to them; and the court having adjudged them the relief sought the school district appeals.
Appellant relies on Grady v. Pruitt, 111 Ky., 100; 23 Ky. Law Rep., 506, 63 S. W., 283, and Grady v. Landram, Id., 284. Tn these cases the contractor who had built the schoolhouse, and to whom a balance of $604 was due, sought in the first case to hold the trustees personally liable, and in the second to remove [72]*72the house or such part of it as would be of value $604, or place the house in the hands of the receiver. The district had paid him $2,173 on the contract. It was held in the first case that the trustees were not personally liable, and in the second that, the building being a single structure, a part of it could not be removed without injury to the remainder, and, the district having paid $2,173 on the building, the chancellor could not destroy $2,173 worth of property belonging to the district to give the contractor $604. It was also held in these cases that the contract being void under the Constitution, could not be enforced, directly or indirectly, and therefore that the property could not be placed in the hands of a receiver. To the same effect is the opinion of the Supreme Court of the United States in Litchfield v. Ballou, 114 U. S., 190, 5 Sup. Ct., 820, 29 L. Ed., 132. In that case the city of Litchfield had issued bonds which were void under the Constitution, and with a part of the proceeds of the bonds and other funds had constructed a system of waterworks for the city. The land on which the works were constructed was bought before the bonds were issued. The streets through which the pipes were laid were public property then owned by the city, and much of the expense of the construction of the waterworks was paid by taxation or other resources of the city. The plaintiffs were unable to identify the property which represented the money they had paid, so that it could be reclaimed and delivered without taking other property or injuring other persons or interfering with their rights. The bill was dismissed.
The case before us is distinguishable from these oases. The money which the plaintiffs paid is distinctly traced into the schoolhouse, the lot and. furniture, and no other money went into them. This prop[73]*73erLy can be reclaimed, without taking any other property with it or injuring any other person or interfering with his rights.
In Chapman v. Douglas County, 107 U. S., 348, 2 Sup. Ct., 62, 27 L. Ed., 378, land was conveyed to a county for a poorhouse. The county had no authority under the law to buy the land. It was held that the county must give up the land to the vendor, when it failed to comply with its. contract; in other words, that it could not keep the land which it had received under the illegal contract.
In Geer v. School District, 111 Fed., 682, 49 C. C. A., 539, it was held by the Circuit Court of Appeals of the United States of the Eighth Circuit, that where a school district issued bonds without authority and used the proceeds to pay a debt which it owed, the bondholders were entitled to be subrogated to the rights of the creditors whose debts their money had paid, the bonds being void. The same principle was followed by the same court in Kearny County v. Irvine, 126 Fed., 689, 61 C. C. A., 607, where a county issued bonds and used the proceeds to pay off the outstanding county warrants which it was authorized to issue. The bonds being void under a constitutional provision similar to ours, it was held that the bondholders were entitled by subrogation to the rights of the holders of the county warrants which had been paid off with the proceeds of the bonds.
No liability, direct or indirect, may be imposed upon the school district under the bonds in question. It is not liable on the bonds, nor can it be made liable by indirection in any way. But, if we ignore the bond transaction altogether, what have we? The district received $4,000 from the bondholders. The bonds being void, the district- should have returned the money to the bondholders. If the bondholders [74]*74had learned of the invalidity of the bonds while the district still had the $4,000 in its treasury which they had paid to it, manifestly a court of equity would have required the district to pay back their money to them. It was money obtained by a mutual mistake. While under the Constitution no liability would attach to the district for the money if it had lost it or if it had spent it and the fund could not be identified and followed, where it may be followed and identified, there is no more reason why property which represents the fund should not be returned than there would be for not returning the money, if it Had been placed in a bag and the district had the bag locked up in its safe. The purpose of the Constitution is not to enrich municipalities at the expense of innocent people who deal with them, and when they repudiate their bonds they must act honestly. A loss must not be placed upon the district; but, when justice may be done without inflicting any loss upon the district, equity will lay hold of the conscience of the parties and make them do what is just and right. To illustrate: If, while the common law disability of coverture was in force, a married woman had borrowed $400 and given her note for it,- and, when sued on the note, had pleaded her coverture, if she still had the $400 in bank, equity would have required her to surrender the money, or if she had invested the $400 in a horse, and the fund could be clearly identified, equity would compel her to surrender the horse. In other words, as has been held, coverture is a shield, not a sword, and a married woman is never allowed to use her coverture to enrich herself at the expense of others. (Chilton v. Braiden, 2 Black, 458, 17 L. Ed., 304.) The same rule has been applied in the case of in[75]*75fants. (Ison v. Cornett, 116 Ky., 92, 75 S. W., 204, 25 Ky. Law Rep., 366, and cases cited.)
Sec. 2353, Ky. Stats.
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[71]*71Opinion by
Chief Justice Hobson
Affirming.
In the year 1897 the trustees of the Fordsville Graded Common School District issued bonds to the amount of $4,000 on behalf of the district for the purpose of providing it with a lot, schoolhouse and suitable furniture. The bonds were sold, and the trustees used the proceeds of the sale in buying a lot, building a schoolhouse, and furnishing it. But no vote of the legal voters of the district was taken before the issual of the bonds, and they were adjudged void under sec. 157 of the State Constitution: “No county, city, town, taxing district or other municipality shall be authorized or permitted to become indebted in any manner or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void. Nor shall such contract be enforceable by the persons with whom made; nor shall such municipality ever be authorized to assume the same. ’ ’
The holders of the bonds, being in part the original purchasers and in part persons who had bought the bonds from them, instituted this action in equity, asking that the lot, house and furniture which was purchased with the proceeds of the bonds be transferred to them; and the court having adjudged them the relief sought the school district appeals.
Appellant relies on Grady v. Pruitt, 111 Ky., 100; 23 Ky. Law Rep., 506, 63 S. W., 283, and Grady v. Landram, Id., 284. Tn these cases the contractor who had built the schoolhouse, and to whom a balance of $604 was due, sought in the first case to hold the trustees personally liable, and in the second to remove [72]*72the house or such part of it as would be of value $604, or place the house in the hands of the receiver. The district had paid him $2,173 on the contract. It was held in the first case that the trustees were not personally liable, and in the second that, the building being a single structure, a part of it could not be removed without injury to the remainder, and, the district having paid $2,173 on the building, the chancellor could not destroy $2,173 worth of property belonging to the district to give the contractor $604. It was also held in these cases that the contract being void under the Constitution, could not be enforced, directly or indirectly, and therefore that the property could not be placed in the hands of a receiver. To the same effect is the opinion of the Supreme Court of the United States in Litchfield v. Ballou, 114 U. S., 190, 5 Sup. Ct., 820, 29 L. Ed., 132. In that case the city of Litchfield had issued bonds which were void under the Constitution, and with a part of the proceeds of the bonds and other funds had constructed a system of waterworks for the city. The land on which the works were constructed was bought before the bonds were issued. The streets through which the pipes were laid were public property then owned by the city, and much of the expense of the construction of the waterworks was paid by taxation or other resources of the city. The plaintiffs were unable to identify the property which represented the money they had paid, so that it could be reclaimed and delivered without taking other property or injuring other persons or interfering with their rights. The bill was dismissed.
The case before us is distinguishable from these oases. The money which the plaintiffs paid is distinctly traced into the schoolhouse, the lot and. furniture, and no other money went into them. This prop[73]*73erLy can be reclaimed, without taking any other property with it or injuring any other person or interfering with his rights.
In Chapman v. Douglas County, 107 U. S., 348, 2 Sup. Ct., 62, 27 L. Ed., 378, land was conveyed to a county for a poorhouse. The county had no authority under the law to buy the land. It was held that the county must give up the land to the vendor, when it failed to comply with its. contract; in other words, that it could not keep the land which it had received under the illegal contract.
In Geer v. School District, 111 Fed., 682, 49 C. C. A., 539, it was held by the Circuit Court of Appeals of the United States of the Eighth Circuit, that where a school district issued bonds without authority and used the proceeds to pay a debt which it owed, the bondholders were entitled to be subrogated to the rights of the creditors whose debts their money had paid, the bonds being void. The same principle was followed by the same court in Kearny County v. Irvine, 126 Fed., 689, 61 C. C. A., 607, where a county issued bonds and used the proceeds to pay off the outstanding county warrants which it was authorized to issue. The bonds being void under a constitutional provision similar to ours, it was held that the bondholders were entitled by subrogation to the rights of the holders of the county warrants which had been paid off with the proceeds of the bonds.
No liability, direct or indirect, may be imposed upon the school district under the bonds in question. It is not liable on the bonds, nor can it be made liable by indirection in any way. But, if we ignore the bond transaction altogether, what have we? The district received $4,000 from the bondholders. The bonds being void, the district- should have returned the money to the bondholders. If the bondholders [74]*74had learned of the invalidity of the bonds while the district still had the $4,000 in its treasury which they had paid to it, manifestly a court of equity would have required the district to pay back their money to them. It was money obtained by a mutual mistake. While under the Constitution no liability would attach to the district for the money if it had lost it or if it had spent it and the fund could not be identified and followed, where it may be followed and identified, there is no more reason why property which represents the fund should not be returned than there would be for not returning the money, if it Had been placed in a bag and the district had the bag locked up in its safe. The purpose of the Constitution is not to enrich municipalities at the expense of innocent people who deal with them, and when they repudiate their bonds they must act honestly. A loss must not be placed upon the district; but, when justice may be done without inflicting any loss upon the district, equity will lay hold of the conscience of the parties and make them do what is just and right. To illustrate: If, while the common law disability of coverture was in force, a married woman had borrowed $400 and given her note for it,- and, when sued on the note, had pleaded her coverture, if she still had the $400 in bank, equity would have required her to surrender the money, or if she had invested the $400 in a horse, and the fund could be clearly identified, equity would compel her to surrender the horse. In other words, as has been held, coverture is a shield, not a sword, and a married woman is never allowed to use her coverture to enrich herself at the expense of others. (Chilton v. Braiden, 2 Black, 458, 17 L. Ed., 304.) The same rule has been applied in the case of in[75]*75fants. (Ison v. Cornett, 116 Ky., 92, 75 S. W., 204, 25 Ky. Law Rep., 366, and cases cited.)
Sec. 2353, Ky. Stats. 1903, is relied on for appellants: “When a deed shall be made to one person, and the consideration shall be paid by another, no use or trust shall result in favor of the latter, but this shall not extend to any case in which the grantee shall have taken a deed in his own name without the consent of the person paying the consideration, or where the grantee, in violation of some trust, shall have purchased the lands deeded with the effects of another person. ’ ’
This statute was not intended to affect the equitable doctrine that equity would follow a fund and compel restitution as long as it could be identified and followed. It was not the aim of the statute to enable one person to keep the money of another, and thus be enriched at his expense, simply because, instead of holding the money in specie-, he has invested it in a tract of land. The true owner of a fund may in equity pursue it, where it is clearly identified, equally whether it has been transmuted by the holder into personalty or realty. Properly, under the statute, he should not be adjudged the land, but a sale of it to satisfy his claim. But in this case appellants are not prejudiced by the form of the judgment, as the property is not of value more than the fund. We see no reason why the right to follow a fund should not be applied against municipalities under the clause of the Constitution above quoted, just as it is against other persons obtaining the property of another under a void contract, where the fund may be identified and is separated from other property of the municipality. The present holders of the bonds stand by subrogation in the shoes of the original purchasers from whom they bought, and under the Code the ac[76]*76tion may be maintained in the name of the real party in interest. The judgment complained of does justice between the parties, and we see no reason for disturbing it.
Judgment affirmed.