20 Wend. 570 | N.Y. Sup. Ct. | 1838
I concur with the chancellor., that the debt in question was chargeable upon the wife’s interest in the Broadway house and lot. It is plain that the opinion of the vice chancellor would have been the same, had he not felt a difficulty in seeing that the Broadway property and factory made parts of one and the same trust estate. It appears to me that it is impossible to separate them. Originally, to be sure, the marriage settlement was confined to the Broadway property; but it is not denied that in pursuance of the very deed of settlement, that identical property was made instrumental in the purchase of the factory. A part was taken from the Broadway property and invested in the factory, by the trustees, with the consent of Dyett and his wife, the cestuis que trust. The factory, therefore, in the eye both of law and equity, became substituted for that portion of the Broadway property which was deducted in order to the purchase. In legal effect, it became a part of the Broadway property, subject to the same trusts, and to be read as a part of the original deed. Taylor v. Plumer, 3 Maule & Selw. 562, 575. In this sense the coal, being purchased by Mrs. Dyett for the benefit of the factory, is but another mode of saying that it was for the use of the original trust property, the house and lot itself.
I have supposed that Mrs. Dyett made the contract for the coal. I am aware that this is denied, and correctly, so far as her personal contract is1 in question. But the denial is carried farther, by saying that she never assented to the appointment of Livingston as agent of the factory, who it is agreed did assume to be agent, and as such to make the contract. It is sufficient, however, that the fact of her assent is not denied, but expressly admitted by the joint answer of Joshua Dyett and herself. It is said that such an answer is not to affect her interests, although she joined in it; that still it is but the answer of the husband % and this I agree is, in general, so. I am not aware, however, that the rule has ever been applied to a wife who is sued in
Livingston being the agent of Mrs. Dyett in respect to the factory, it follows, as we have seen, that a debt contracted by her is chargeable upon the whole of the trust estate, in which this is involved as a part.
It is obvious that the credit was not given for the coal to Joshua Dyett individually. There is full evidence not only that it was in fact furnished for the use of the factory, but the agent of the respondents might and probably did collect, from the face of the bill, that the whole was a factory transaction. I am not aware, however, that such knowledge was necessary. I take it to be sufficient that the debt was, in truth, contracted for the benefit of the trust estate. Upton v. Gray, 2 Greenl. 373.
The decree of the court of chancery should therefore be affirmed.
All the members of the court, with but one exception, concurring in this opinion, the decree of the chancellor was accordingly AFFIRMED.