Switzer v. Valentine

11 Duer 96

Opinion

By the Court.

Bosworth, J.

The plaintiff proved that the property in question was taken from his possession, gave evidence of its value, and rested.

The defendant sought to justify the taking, by proving the facts set up in his answer. They were, in brief, that Caroline Switzer owned the property, and mortgaged it to the defendant, to secure the payment of a note of the same date as the mortgage, also given by her and payable to the defendant’s order, and that he took the property under the mortgage. The answer does not intimate that Caroline Switzer was the plaintiff’s wife, and had a separate property, nor does it aver that the plaintiff transacted any business in the name of “ Caroline Switzer,” or that she'was authorized by him to transact such business for him, or to mortgage the property in question, either in his name or in her own.

The fair meaning of the answer is, that the property belonged to her, in her own right, and that being such owner, she mortgaged it to secure a debt which she personally owed to the defendant.

The evidence showed clearly that she and the plaintiff were husband and wife, and that the defendant knew this when he took the note and mortgage. That they lived together as husband and wife, that he worked at his trade, and that she kept a boarding-house. That she made the purchases for the house, made contracts with the boarders, and received from them their board. All this was done with the husband’s knowledge.

Prior to the acts of 1848 and 1849, allowing married women to take, hold, and dispose of property as if they were single and unmarried, there is no doubt, that for all purchases made by the wife, with the knowledge and assent of the husband, and especially, when the articles bought come to his possession, in the manner and to the extent that the articles in question did, he would be liable to the vendor for the price. They could be seized and sold on an execution against him. In judgment of law, they would be his property and not hers.

In this case, many of the articles mortgaged to the defendant were bought by him. Some were purchased and paid for by her. Some were bought by the defendant, arid sent to her by his order, and the price formed part of the amount of the note which the mortgage was given to secure, and the articles themselves were covered by the mortgage. Of the latter class, were the articles bought of Dwight Bishop, by the defendant, and the bill of them amounted to $156.

Have the acts of 1848 and 1849 any bearing upon the questions arising in this action? By these acts, she may take by gift or grant, from any person, except her husband, either real or personal property, and hold, convey, and devise it, or any interest in it, with like effect, as if she were unmarried. Does thjs do more than to capacitate a married woman to hold as her own a separate property, and to dispose of it, as effectually, as if she were unmarried ? Does it authorize a married woman, even if she have a separate property,' to become a general trader, and make valid contracts, in respect to any business which she may be disposed to undertake, or in respect to any speculations in which she may choose to engage ? Is not the whole capacity which is given to her to purchase, limited to purchases which she may make on the credit of her separate estate, or for which she may pay, with such estate, or parts of it?

And is not all the new capacity, which is given to her to convey or devise, limited to a conveyance or devise of her separate property ?

Can a married woman who has no separate estate, make now any valid contract which she could not have made before these acts were passed?

In the present case, there is no pretence that Caroline Switzer ever had any separate estate. Even the property bought by Valentine of Dwight, was not given to her, for she gave her note for it. Was it granted to her, within the meaning of these acts, so as to make it her individual property ?

It went to the plaintiff’s house and possession, it was appropriated to his use, by being employed in a business prosecuted as a means of supporting his family. He is liable in law for its price, and it could be taken on execution to satisfy his debts. In judgment of law it was sold to him, and was his property, and the defendant is liable to him for its value. (Lovett v. Robinson, 7 How. Pr. R. p. 105; Hurd v. Cass, 9 Barb. S. C. R. 366; Shumway v. Cooper, 16 Barb. S. C. R. 556.)

We see no reason to grant a new trial, on account of any charge made at the trial, nor on account of any refusal to charge, as requested, by the defendant.

No- objection appears to have been made at the trial, to the competency of any of the evidence, given by the plaintiff to prove the value of the property taken. What Harriet Switzer heard her mother say was paid for the property, should not have been received as evidence of its value, if it had been objected to. But no complaint seems to have been made at the trial to the reception of that evidence. It appears that the defendant effected an insurance on the property to the amount of ,$800. • We cannot see that the damages are so clearly excessive as to require the court to grant a new trial, merely on that ground. We think the judgment should be affirmed.