Savage v. O'Neil

42 Barb. 374, 1864 N.Y. App. Div. LEXIS 112

Opinion

By the Court,

B. Daewin Smith, J.

Whatever may have been the rights of the plaintiff in respect to the money which she testifies she received from her mother, I think the questions presented for our decision in these exceptions do not necessarily involve a decision of that question. The plaintiff was a married woman, and was married in the year 1847, and before the passage of the acts in this state enlarging the rights of married women in respect to the holding of separate property,

(a) The-plaintiff testified that she was married sixteen years before the trial, which was in October, 1863, and that she received the money in question from her mother, in Russia. That she left Russia six years before, and received the money when she was twenty-one years of age. What her age was at the time of her marriage, or at the time of the trial, does not appear. If the plaintiff is to be deemed, upon this evidence, to have been a subject of the Russian empire at the time of her birth or marriage, I do not see any ground upon which she could have the benefit of our statutes for the more effectual protection of the rights of married women, passed in, 1848 and 1849. I think we must presume that the same laws exist in relation to husband and wife and their relative rights, throughout the civilized world, that existed here at common law, before the passage of these acts. A married woman, claiming the benefit of these acts, must show that she was a resident of this state at a time and under circumstances to entitle her to such benefit. The plaintiff testified that she left Bussia six years ago. If she then came to this state, and has since resided here, she is entitled to the full benefit of all our local statutes governing the rights of citizens. Conceding to her such rights, as if she were a resident of this state at the time of her marriage, in 1847—which is certainly the most favorable view of her rights that can be.taken—I do not see how, she can recover in this action.^ At that time, by the common law which prevailed in this state, the husband, upon marriage, became entitled to all the personal property of the wife, however acquired, or all she might thereafter acquire. (Ryder v. Hulse, 24 N. Y. Rep. 372.) The acts of 1848 and 1849 did not and could not take away the right of the husband in his wife's personal property and dioses in action. (Westervelt v. Gregg, 2 Kernan, 202.) If it were distinctly proved that this money came to the wife since the passage of those acts, the case would be otherwise. But this does not appear, and I think is not to be implied. A party claiming the benefit of these acts must bring herself within them by proper proof. But this question does not dispose of the action. Whatever may have been the rights of the plaintiff to the money received of her mother, she could not acquire title to the property for which this action was brought, from her husband. The disability of coverture which existed at common law, which precluded husband and wife from contracting with each other, was not taken away by those statutes, and still exists. It was impossible, at common law, and still is, for husband and wife to make any valid contract with each other. The maxim of the common law is that husband and wife are one person. They can no more make a valid contract with each other than a man can contract -with himself. This rule can only be evaded by the intervention of a trustee, to sustain any conveyance or transfer from one to the other. This question has recently been very carefully considered in the court of appeals, in the case of White v. Wager, (25 N. Y. Rep. 330,) where the doctrine is fully asserted in respect to a conveyance of land, that husband and wife cannot convey to each other,'and that the statutes of 1848 and 1849, above mentioned, have not varied the law or affected the question. At common law, if the wife acquired personal property after marriage, we have seen the title immediately vested in her husband; and this could only be prevented by a settlement to her sole and separate use. The statutes of 1848 and 1849 do change this rule of the common law, and enable a married woman to take property, real and personal, by gift, grant, devise, or bequest, from any person other than her husband. This exception or qualification, leaves the common law rule in full force; and unaffected, so far as it relates to grants, conveyances, gifts or transfers from husband and wife. In respect to all such transfers, the rule remains as at common law. All such transfers of real or personal property are absolutely void. It follows from this rule of law, that the pretended.sale by the plaintiff’s husband to her, of the personal property in controversy in this suit, was null and void; that no title passed from the husband to the plaintiff; and the property being confessedly his, before such pretended sale, remained his; and the same might lawfully be levied upon by the defendant, on execution. I can see no.escape from this conclusion, and consider that the judge erred in holding otherwise at the circuit; and for this error there must be a new trial.

[Mohece Geseeab Teem, September 5, 1864.

¡New trial granted.

Welles, J. C. Smith and E, Darwin Smith, Justices.]

Laws of 1848, p. 307; Laws of 1849, p. 628,