| N.Y. Sup. Ct. | Jan 4, 1848
The bill of exceptions assumes that the property taken by the defendants, belonged in equity, to the wife, under the ante-nuptial agreement given in evidence. And the first question it raises is, whether 'the remedy is rightly sought in an action at law by the husband and wife. It was formerly supposed that the interposition of trustees was in all cases of this sort, whether before or after marriage, indispensable for the protection of the wife’s rights and interests. But, though in strict propriety that should always be done, and it is usually done in regular and well considered settlements j yet it has been for more than a century established in courts of equity, that whenever real or personal property is given or devised to, or settled upon, a married woman, either before or after marriage, for her separate or exclusive use, without the intervention of trustees, the intention of the parties may be effectuated in equity, and the wife’s interest protected against the marital rights and claims of her husband. (2 Story’s Eq. 607, § 1380, and cases cited. 2 Kent’s Com. 162.) In such case, the husband will be considered the trustee, whether he was a party to the instrument under which the wife claims, or not. (1 Mad. Ch. 376.) When the husband stipulates, before marriage, that his wife shall enjoy her own property, as in this case, he will be bound in equity to perform his agreement, even though it was entered into with the wife herself, and became suspended, at law, by his subsequent marriage. (2 Kent’s Com. 163.) And a court of equity will compel him to account with his wife for her separate estate received by him without her knowledge. (Clancy’s Rights of Women, 351, 354.) In the present case, no doubt a court of equity would, on a bill filed by the wife against her husband, restrain him from applying
In a court of law, however, the rights of these parties are viewed in a different light. There, the strict rule of the common law prevails. That rule is correctly stated by the elementary writers, thus: The husband, by marriage, acquires an absolute title to all the personal property of the wife, which she had in possession at the time of the marriage; such as money, goods or chattels of any kind. (Reeve’s Dom. Rel. 1.) “ Marriage,” says Clancy, page 2, “ operates as an absolute gift to the husband of all the property coming under the description of personal chattels which were in the possession of the wife at the time of the marriage.” Co. Litt. 351, b.; 2 Kent’s Com. 143; Butler’s note 304 to lib. 3, Co. Litt. are to the same effect. The property now in controversy is personal chattels; and at law is the property of the husband. For an injury to this property, or a conversion of it, the husband alone can sue. The wife has no legal interest in it, and she is not a proper party plaintiff in the suit. (1 Chit. Pl. 62. 2 Saund. 471. 6 Watts, 301. 1 Russ. 67. 1 Bibb, 217.) On his death, it goes to his personal representatives, and not to his wife by survivorship, (2 Kent’s Com. 143.)
The cases relied on by the counsel on the other side, are all cases of actions for injuries to the wife’s real property, affecting the inheritance, or to the dioses in action of the wife before coverture, or to personal injuries to the wife during coverture. In all these cases the wife is in general a proper and necessary party. The rule is that in all cases where, on the death of the husband, the cause of action would survive to the wife, the husband and wife ought to join. (Reeve’s Dom. Rel. 125,128.)
The consequences of a misjoinder of the wife, if the objection appears in the declaration, are, that the defendant may demur, move in arrest of judgment, or bring error. (1 Chit. Pl. 64.) If it does not appear on the record, 'but arises out of the evidence, it is the ground of a nonsuit at the trial. We think the
The other point, namely, that this action cannot be maintained in a court of law, the remedy being in equity, does not properly arise in this case, The defendants cannot object that Charles Blood is abusing the trust confided to him by the ante-nuptial contract. None but the wife can raise that question; and that only in a court of equity. At law, it has been seen, the property in question is his. As between him and his creditors it may be taken for his debts; though doqbtless a court of equity, on a bill filed by her against her husband and the creditor seizing the property, would protect the rights of the wife. So also in equity, a judgment recovered by the husband,for the property, would be treated as belonging to the wife. A trustee cannot gain an advantage to himself by changing the nature of the trust property. (See 2 Stores Eq. 456, 457, and cases there cited.).
Judgment reversed.