Aultman, Taylor & Co. v. Obermeyer

6 Neb. 260 | Neb. | 1877

Maxwell, J.

Section one of the act “respecting the rights of married women,” approved March 1, 1871, provides that: “The property, real and personal, which any woman in this state may own at the time of her marriage, and the rents, issues, profits, or proceeds thereof, and any real, personal, or mixed property which came to her by descent, devise, or bequest, or the gift of any person except her husband, shall remain her sole and separate property, notwithstanding her marriage, and shall not be subject to the disposal of her husband, or. liable for his debts.”

In 1875 this section was amended by adding after the word “ husband,” in the sixth line, the words “ or she shall acquire by purchase or otherwise.”

At common law those chattels which formerly belonged to the wife are by act of law vested in the husband, with the same degree of property'and with the same powers as the wife, when sole, had over them.” This depends entirely on the notion of a unity of person between the husband and wife, it being held that they are one person in law, so that the very being and existence of the woman is suspended during the coverture, or entirely merged or incorporated in that of the husband. And hence it follows, that whatever personal property belonged to the wife before marriage is by marriage absolutely vested in the husband. In a real estate, he only gains a title to the rents and profits during the coverture; for that, depending upon feudal principles, remains entire to the wife after the death of her husband, or to her heirs, if she dies before him, unless, by the birth of a child, he becomes tenant for life by the curtesy. But in chattel interests the sole and absolute property vests in the 'husband, to be disposed of at his pleasure, if he chooses to take possession of them; for unless he reduces them to possession, by exercising some act of ownership upon them, no property vests in him, but they shall remain to the wife, or to her representatives, after the coverture is determined.” 2 Black. Com., 433.

The common law in respect to the rights of husband and wife is in force in this state, except so far as it has been changed by statute. The second section of the act “ respecting the rights of married women ” provides that: “ A married woman, while the marriage relation subsists, may bargain, sell, and convey her real and personal property, and enter into any contract with reference to the same, in the same manner, to the same extent, and with like effect, as a married man may in relation to his real and personal property.”

By the common law neither the husband nor wife could convey lands to each other. And our law still regards them in relation to each other as one person, notwithstanding the statute enlarging the rights of the wife. Fowler v. Trebein, 16 O. S., 498. White v. Wager, 25 N. Y., 328. Winans v. Peebles, 32 N. Y., 423.

The conveyance which Obermeyer attempted to make directly to his wife in law was absolutely void. Where it is apparent that such a deed has been made, in pursuance of a valid ante-nuptial agreement or upon a sufficient consideration, it might be sustained in equity. But in this case, if we take the most favorable view of the evidence possible for the defendants, that the money in question was derived from the 'sale of lands owned by the wife, still it is clearly shown that in the year 1870 the husband had reduced this money to his possession, and had retained possession thereof until the time he purchased the land in controversy. But in our opinion the proof fails to establish the fact that the money with which this land was purchased was derived from the sale of lands belonging to the wife. Transactions between husband and wife in relation to the transfer of property from one to another, by reason of which creditors are prevented from collecting their just dues, will be scrutinized very closely, and the bona fides of such transaction will have to be established beyond question, in order to be sustained by a court of equity. The judgment of the district court is reversed, and a decree rendered in favor of the plaintiff.

Decree accordingly.