Bowen v. Amsden

| Vt. | Feb 15, 1874

The opinion of the court was delivered by

Pierpoint, Ch. J.

The only question here involved is, whether there was such a change of possession of the property in question at the time it was transferred by Henry S. Bowen to his brother Otis E. Bowen, and by the said Otis to Caroline P. Bowen, the wife of Henry S., as to prevent its being legally attached by the creditors of Henry S. as his property. No question is made in this court as to the scales and safe. As to the other property, it appears that up to the time of said transfers, Henry S. was the owner of it; that the farm on which the plaintiffs lived, was owned by the female plaintiff; and that she and her husband liad lived thereon for many years, and still live thereon; that both before and after the said transfer, the said husband occupied, managed, and carried on the said farm in the usual manner and course of carrying on a homestead ; that he did, and is still doing, this in the exercise of his marital rights, as the husband of his said wife ; that in carrying on and occupying said farm, he used and kept said pei’sonal property in the usual course of using such property in carrying on and occupying such a farm and homestead. At the time of the transfer, it was not taken off the premises, but brought together for inspection, and after the transfer, was returned to its accustomed places, and the said Henry S. continued to’ use and control it as before. There was no change in the possession or occupation of the farm, but all remained as before. While the property was in this situation, it was attached by the defendant.

It is claimed on the part of the plaintiffs, that as the wife was the owner of the farm, and was living thereon with her husband, that she was in possession of the farm, and that after she bought the property in question, it was in her possession, and not in the possession of the husband. We think this position is not sound. The case finds that the husband was in possession of the farm in the exercise of his marital rights. That the husband is entitled to the possession and occupancy of his wife’s real estate, is too well settled to be questioned. This is one of his marital rights ; and while in possession in the exercise of such rights, that possession, so far as it bears upon a question like the present, is the sole and exclusive possession of the husband ; and the personal property on the farm and in use by him, is in his possession ; so that after the transfer of the property in question to the wife, suffering it to remain on the farm, and to be used by him, was leaving it in his possession as it was before, subject to be attached by the creditors of the husband.

The doctrine of possession as between the husband and wife, of the real estate of the wife, was fully recognized by this court in Holton v. Whitney, 28 Vt. 448" court="Vt." date_filed="1856-02-15" href="https://app.midpage.ai/document/holton-v-whitney-6575887?utm_source=webapp" opinion_id="6575887">28 Vt. 448. We find no error in the decision of the county court.

Judgment affirmed.