The opinion of the court was delivered by
Vredenburgh, J.
This ejectment is brought to recover possession of 24 lots in the City of Elizabeth. The plaintiff claims title, by virtue of a judgment, on a cause of action arising before the deed to Mrs. Fulton, herein after mentioned, against the husband, and a deed under such judgment, dated the 31st of August, 1860. This (the defendants being in possession), prima facie, entitles the plaintiff to recover.
The Avife sets up, by Avay of defence, a deed to her from the former OAvner, dated the 26th of September, 1853, for a term of thirty years. But at the common law this would vest in the husband during their joint lives, and thus far be liable for his debts. Claneey’s Husb. and Wife 9, 10.
■ But the wife, in further defence, sets up the act of the legislature, passed on the 25th of March, 1852, Nix. Dig. 503.* The deed to the wife is dated a year after this act went into effect, and Avhile she Avas a married woman. It is therefore affected by its provisions. The 3d section of this act provides, “ that it shall be laAvful for any married female to receive, by gift, grant, devise, or bequest, and hold to . her [436] sole and separate use, as if she Avere a single female, real and personal property, and the rents, issues, and profits thereof; and the same shall not be subject to the disposal of her husband, nor be liable for his debts.”
It was decided by this court, in the case of Ross v. Adams, 4 Dutcher 160, that the term grant, in the act, included this-species of conveyance. This case, then, is that of a married, woman receiving a term of years by grant, and the statute says, in terms, that it shall not be liable for- her husband’s debts.
This, therefore, is a complete defence, unless the plaintiff can show that it is outside of the provisions of this statute. The plaintiff attempts to do so, by alleging that this term of years Avas paid for with the husband’s money, and that on that account the statute does not operate on the grant, and that the title passes through the Avife to the husband the same-as it would at common laAv, and as if this statute had neAmr been passed.
In the first place — suppose the Avife did pay for this land with the money of her husband, so as to defraud his creditors, hoAV does it affect the question at laAv ? Can the plaintiff maintain ejectment, or is his remedy in a court of equity ? By the common laAv, the title flows from the vendor to theAvife, and through her to her husband. The husband gets-no title from the vendor. All the title he gets is Avhat floAvs through the wife to him.
The statute does not prevent the title passing from the-vendor to the Avife: the Avhole title passes out of the vendoiinto the wife, the same as if no statute had been passed. The statute only operates on the title Avhen it reaches the wife. It then immediately attaches to the title in the wife’s-hands, and stops its further passage. The channel by which it passed at common law from the wife to the husband is-hermetically sealed by the statute. The statute says the-wife may receive and hold it to her separate use as a single-female ; and that it shall not be subject to the disposal of her husband, nor be liable for his debts. The channel [437] through which, therefore, the plaintiff claims that the husband got his title, is blocked up by the statute. It could get no-further than the wife.
The common law, under which a joint estate for life in-chattels real of the wife were vested in the husband, was repealed by the statute. The title therefore passed from the-vendor to the wife by virtue of the deed, and the statute prevents it going any further.
Nor can the fact of the wife’s paying for the land with the funds of her husband make any difference as to the legal title. The only remedy of the creditors is in equity. At most they can hold only an equitable title. We have been referred to some cases in Pennsylvania, where ejectments have been sustained for chattels real bought by the wife with the husband’s money; but these were under their local practice — they having no Court of Chancery; and ejectment is there used in the nature of a bill in equity to execute a trust.
But suppose we are wrong in this, it remains to be considered whether the case here shows that this term of years was in point of fact bought with the husband’s money. Upon the face of the deed it appears to have been bought with the money of the wife, and not of the husband.
It is said, in reply, that at law, when a deed is made to a married woman, the presumption, prima fade, is .that it was bought with the funds of the husband. This doctrine would disturb a great deal of property in New Jersey. It is the constant habit to make deeds aud all kinds of securities to married women, paid for by funds they have earned or received from kindred, and which have remained thus in their own names all the rest of their lives. In all such cases can a creditor sell under a judgment against the husband, bring ejectment against the wife’s heirs, and say that the presumption is that the lands were bought with the husband’s-money, and put them to the proof, in the" first instance, that it was not, or turn them out of possession by ejectment ?
We are referred to several cases in Pennsylvania where the court use very strong and general words to that effect. [438] Such are the cases of Keeney v. Good, 9 Harris 354; Bradford’s appeal, 5 Casey 513; Gamber v. Gamber, 6 Harris 366; Toply v. Toply, 7 Casey 328 ; and of Aubles v. Mason, 11 Casey 261. But these are all cases where the other facts in evidence show very plainly, that the funds were in fact the husband’s, and not the wife’s, and the .expressions of the court should be read in the light of all the facts appearing in each case.
The presumption upon the face of the deed is, that the term of years was bought with the funds of the wife, and the burthen of overcoming this presumption is upon the plaintiff.
The question before us therefore is, whether the plaintiff has shown,, by his case, that this money was her husband’s. He has shown us, in the state of the case, the facts connected with these funds, and insists that, in point of law, they were the husband’s. These facts are, that the consideration of the deed to the wife was $150; that this $150 was the proceeds of the labor and industry of his wife and minor daughters in manufacturing vests, and that his only connection with the business was in going to and from New York, bringing out and returning the work manufactured by his wife and daughters. Now does this statement show that the consideration of this deed to the wife was the property of the husband ? It appears to me, so far from doing so, that it shows the reverse, and that this consideration was the property of the wife, or of the wife and daughters jointly.
The plaintiff contends that these facts show that the proceeds of this labor of the wife and daughters were the property of the husband. This raises two questions.
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The opinion of the court was delivered by
Vredenburgh, J.
This ejectment is brought to recover possession of 24 lots in the City of Elizabeth. The plaintiff claims title, by virtue of a judgment, on a cause of action arising before the deed to Mrs. Fulton, herein after mentioned, against the husband, and a deed under such judgment, dated the 31st of August, 1860. This (the defendants being in possession), prima facie, entitles the plaintiff to recover.
The Avife sets up, by Avay of defence, a deed to her from the former OAvner, dated the 26th of September, 1853, for a term of thirty years. But at the common law this would vest in the husband during their joint lives, and thus far be liable for his debts. Claneey’s Husb. and Wife 9, 10.
■ But the wife, in further defence, sets up the act of the legislature, passed on the 25th of March, 1852, Nix. Dig. 503.* The deed to the wife is dated a year after this act went into effect, and Avhile she Avas a married woman. It is therefore affected by its provisions. The 3d section of this act provides, “ that it shall be laAvful for any married female to receive, by gift, grant, devise, or bequest, and hold to . her [436] sole and separate use, as if she Avere a single female, real and personal property, and the rents, issues, and profits thereof; and the same shall not be subject to the disposal of her husband, nor be liable for his debts.”
It was decided by this court, in the case of Ross v. Adams, 4 Dutcher 160, that the term grant, in the act, included this-species of conveyance. This case, then, is that of a married, woman receiving a term of years by grant, and the statute says, in terms, that it shall not be liable for- her husband’s debts.
This, therefore, is a complete defence, unless the plaintiff can show that it is outside of the provisions of this statute. The plaintiff attempts to do so, by alleging that this term of years Avas paid for with the husband’s money, and that on that account the statute does not operate on the grant, and that the title passes through the Avife to the husband the same-as it would at common laAv, and as if this statute had neAmr been passed.
In the first place — suppose the Avife did pay for this land with the money of her husband, so as to defraud his creditors, hoAV does it affect the question at laAv ? Can the plaintiff maintain ejectment, or is his remedy in a court of equity ? By the common laAv, the title flows from the vendor to theAvife, and through her to her husband. The husband gets-no title from the vendor. All the title he gets is Avhat floAvs through the wife to him.
The statute does not prevent the title passing from the-vendor to the Avife: the Avhole title passes out of the vendoiinto the wife, the same as if no statute had been passed. The statute only operates on the title Avhen it reaches the wife. It then immediately attaches to the title in the wife’s-hands, and stops its further passage. The channel by which it passed at common law from the wife to the husband is-hermetically sealed by the statute. The statute says the-wife may receive and hold it to her separate use as a single-female ; and that it shall not be subject to the disposal of her husband, nor be liable for his debts. The channel [437] through which, therefore, the plaintiff claims that the husband got his title, is blocked up by the statute. It could get no-further than the wife.
The common law, under which a joint estate for life in-chattels real of the wife were vested in the husband, was repealed by the statute. The title therefore passed from the-vendor to the wife by virtue of the deed, and the statute prevents it going any further.
Nor can the fact of the wife’s paying for the land with the funds of her husband make any difference as to the legal title. The only remedy of the creditors is in equity. At most they can hold only an equitable title. We have been referred to some cases in Pennsylvania, where ejectments have been sustained for chattels real bought by the wife with the husband’s money; but these were under their local practice — they having no Court of Chancery; and ejectment is there used in the nature of a bill in equity to execute a trust.
But suppose we are wrong in this, it remains to be considered whether the case here shows that this term of years was in point of fact bought with the husband’s money. Upon the face of the deed it appears to have been bought with the money of the wife, and not of the husband.
It is said, in reply, that at law, when a deed is made to a married woman, the presumption, prima fade, is .that it was bought with the funds of the husband. This doctrine would disturb a great deal of property in New Jersey. It is the constant habit to make deeds aud all kinds of securities to married women, paid for by funds they have earned or received from kindred, and which have remained thus in their own names all the rest of their lives. In all such cases can a creditor sell under a judgment against the husband, bring ejectment against the wife’s heirs, and say that the presumption is that the lands were bought with the husband’s-money, and put them to the proof, in the" first instance, that it was not, or turn them out of possession by ejectment ?
We are referred to several cases in Pennsylvania where the court use very strong and general words to that effect. [438] Such are the cases of Keeney v. Good, 9 Harris 354; Bradford’s appeal, 5 Casey 513; Gamber v. Gamber, 6 Harris 366; Toply v. Toply, 7 Casey 328 ; and of Aubles v. Mason, 11 Casey 261. But these are all cases where the other facts in evidence show very plainly, that the funds were in fact the husband’s, and not the wife’s, and the .expressions of the court should be read in the light of all the facts appearing in each case.
The presumption upon the face of the deed is, that the term of years was bought with the funds of the wife, and the burthen of overcoming this presumption is upon the plaintiff.
The question before us therefore is, whether the plaintiff has shown,, by his case, that this money was her husband’s. He has shown us, in the state of the case, the facts connected with these funds, and insists that, in point of law, they were the husband’s. These facts are, that the consideration of the deed to the wife was $150; that this $150 was the proceeds of the labor and industry of his wife and minor daughters in manufacturing vests, and that his only connection with the business was in going to and from New York, bringing out and returning the work manufactured by his wife and daughters. Now does this statement show that the consideration of this deed to the wife was the property of the husband ? It appears to me, so far from doing so, that it shows the reverse, and that this consideration was the property of the wife, or of the wife and daughters jointly.
The plaintiff contends that these facts show that the proceeds of this labor of the wife and daughters were the property of the husband. This raises two questions.
First. To whom were the promises made to pay for this work ? Hid those in New York, for whom these vests were made, promise to pay the husband or the wife for it? If they promised to pay the wife, whose property were the earnings — the husband’s or the wife’s ?
It appears, by the case, that the labor done by the wife .and daughters was the making up of vests for people in New York, from stuff sent by them to the wife and daughters in [439] Elizabeth. The persons who owned the stuff must have agreed to pay somebody for the work; they must have agreed to pay either the husband or the wife. In the absence of all proof, the presumption of law would probably be that they agreed to pay the husband. But here is a case. Whom does the case show they must have agreed to pay? The case says, that the work was done by the wife and daughters for the persons who owned the materials in New York. It further says, that the husband had no connection with the business, except in going to and from New York, bringing out and returning the work manufactured by his wife and daughters. The case therefore shows upon its face expressly, that the husband had nothing to do with the agreement to pay for the labor, express or implied; that no promise was made by those who got the work done to pay him. This the ■case could not have said if the promise had been, either express or implied, to pay the husband. His going to and from New York with the articles manufactured, no more implies a promise to pay him, than it does to pay the baggage wagon or the railroad car in which they are carried. The case therefore negatives any promise, express or implied, to pay the husband. We must necessarily imply, from the case, that the owners of the raw material expressly promised to pay those' who did the work, viz. the wife and •daughters. We can therefore only understand the case as averring, that those who got these vests made undertook expressly to pay the wife and daughters for them.
This brings us to the second question, viz. If the promises of the owners of the raw material were to pay the wife and daughters for this work, vdiose property were these earnings at the date of the deed? Were they the husband’s or the wife’s ?
The plaintiff contends that they were the husband’s and refers us for authority to the general principle laid down in Clancefs Husband and Wife, p. 3, “ that the husband is entitled to all sums of money which the wife earns by her skill and labor absolutely and in his own right.” But the author [440] is here speaking only of those earnings which have been made-upon express or implied assumpsits to the husband, and is not speaking of express assumpsits to the wife. This author himself, on the following pages, most emphatically negatives any such conclusion to be drawn from his general language, and states clearly, as the result of the authorities, that the-right of the husband to the earnings of the wife, upon express assumpsits to pay her, are only conditional, and that they belong to the wife until the husband reduces them into-possession, and if he dies first, that they survive to the wife.
It is a principle of the common law, established in the earliest times, and kept up by a uniform current of decisions to the present, and recognized in all the elementary writers, that the right of the husband in the earnings of the wife, upon express assumpsit to pay her, is only conditional, and the right to such earnings remains in the wife until the husband reduces them actually into possession; that the earnings of the wife, after express promises to pay her, are choses in action — as much so as a bond or note of hand given to her during her coverture, and her property until reduced into the possession of the husband. Why not? They are the proceeds of the sweat of her own brow, and hers by a more sacred law than what descends from father or mother. Why not hers ? As each day’s toil is over, she has a right of action to enforce its payment against him who promises to pay her, as much as if he had given her for it a promissory note.
As the wife did each job of work, the debt due her from her employer was a chose in action belong to her, and which remained in her until her husband saw fit to reduce it into his own possession. That the earnings of the wife, upon express assumpsits to her, belong to her until the husband reduces them into possession, is supported by the most ample authority. Clancey’s Husband and Wife, 3, 4, 5, and 6; Brashford v. Buckingham, Cro. Jac. 77 — :205; Prat et ux. v. Taylor, Cro. Eliz. 61; Weller v. Baker, 2 Wilson 414; Buckley v. Collier, 1 Salk. 114; Fountain and Wife v. Smith, 2 Sid. [441]*441128; Bac. Ab., Baron and Feme, R., § 20, 21; Vin. Ab., Baron and Feme, T., § 32.
The next question is — did the husband reduce these choses in action of the wife’s into his possession before this deed was made to the wife ?
They existed originally in the shape of choses in action, •that is, in the shape of express promises to pay the wife for her work. There is no proof in the case that the husband ever did, or intended to reduce them into possession. On the contrary, the case expressly negatives that idea. Whether ■the husband reduced them into possession, was a fact that .should have been directly found for the plaintiff: it was a fact upon which his title rested. The presumption is, that these earnings remained in their original shape of choses in .action. The case says the lands were paid for from the proceeds of the wife’s labor. These proceeds were promises to pay her, and which we are to presume, from the case, were turned over to her vendor without ever passing through or ■under the control of the husband.
It is a well settled principle of law, that where the husband ■ does not reduce the choses in action of his wife into his actual ■possession, by collecting or disposing of them, and does not act with intent to reduce them into his actual possession, their payment, even to the wife, with intent to reinvest them, will not vest the right to them in the husband. Whether they vest in the husband or not upon payment, even to the wife, depends upon the intent with which the payment is made. 18 Ohio 115;* 3 How. U. S. 624 ;† 12 Smed. & M. 369;‡ 3 Kelly (G) 550 ;§ 37 N. Hamp. 146, || 437; 22 N. Hamp. 352;¶ 6 Mees. & Welsby 423;** 28 Vermont 765 ;†† 30 Vermont 213;‡‡ 32 Vermont 27. §§
The case here shows no fact or intent by the husband to make such a conversion, but every presumption is against it. It [442] appears, by the ease, that these earnings remained in the shape of choses in action of the wife • of promises to pay her until these choses were passed over by her to her vendor in payment of this deed, and were, when so used, the property of the wife, and not of the husband. He had not yet done what it was necessary for him to do before any right to them vested in him. He had not yet performed the condition precedent upon which his rihgt to these earnings depended. He had not reduced them into his own possession. This term of years, then, was bought with her own property, which under the statute she had a right to receive by grant; and the title to this term of years passed by the deed to her, and the statute stopped any portion of the title from passing through her to her husband.
Nor is there any law, human or Divine, that compels the husband, in the interest of his creditors, to convert to their use the daily labor of his wife, or to convict him of fraud towards them, if he permits her to toil at the wash-tub or the sewing machine to feed her own children, or to provide a shelter for her little ones from the night and the tempest. He may do so, if he chooses, but the law compels him not. If it did — if the law compelled the husband, for the benefit of creditors, to snatch the loaf of bread, the proceeds of her daily toil, as she is carrying it to her children, then, indeed, should mankind blush in the presence of the rest of the animal creation. The fishhawk does not rob his mate, as she carries in her talons to her nest the prey she has plunged beneath the ocean wave to seize. Throughout all the orders of animated nature, it is the prerogative of the female to labor for her young — the human male alone is brute enough to plunder her.
Judgment for defendants.
Cited in Peterson and wife v. Mulford, 7 Vroom 487,488; Quidorffs Adm’r v. Pergeaux, 3 C. E. Gr. 479.