Sheldon v. Clancy & Callahan

61 Barb. 475, 42 How. Pr. 186, 1871 N.Y. App. Div. LEXIS 149

• Court: New York Supreme Court
• Decided: November 13, 1871
• Status: Published

Opinion

By the Court, Johnson, J.

The action was upon a promissory note, given by the defendants to Charles W. Smith or bearer, payable six months After date.

The only question in the case relied upon as of any importance is, whether the plaintiff had any valid title to the note. It was transferred to him by his wife, who had a separate estate, and who held this note as part thereof, before'the transfer by her to her husband, the plaintiff. The decision of the Appeals Commission, in the case of Savage v. O’Neill, (44 N Y. 298,) and also the decision of this court, in the case of Salter v. Sutherland, at the last September term, (Albany Law Jour., vol. 4, p. 252,) disposes óf this question in favor of the plaintiff. It is now settled that a married woman can purchase property of her husband, and acquire a valid title thereto, when such purchase is in good faith, and from her own separate estate, or with funds belonging thereto, and is made on account of such estate: The wife, in respect to all transactions on account of her separate estate, is, in law, regarded as a feme sole. Consequently, as to such property, she can sell to her husband, as well as purchase of him, the same precisely as though they had never contracted marriage.

[Fourth Department, General Term, at Syracuse, November 13, 1871.

The judgment must, therefore, be affirmed.

Mullin, P. J., and Johnson and Talcott, Justices.]