37 N.Y. 621 | NY | 1868
The only question in this court is, whether the appellants acquired a title to the property in question, by virtue of the assignment thereof to them by the wife in trust for her creditors, good as against the title, which is the respondent's, acquired by virtue of an assignment subsequently made to them by the husband in trust for the benefit of his creditors. That the relation of husband and wife between Bruce McKinney and Mary B. McKinney was created by their marriage in 1842, and continued to exist down to the time of the trial, clearly appears from the facts found by the court below, which findings were warranted by the evidence. All the personal property of the wife in possession at the time of this marriage became at once, by virtue thereof, vested in the husband. (2 Kent's Com. 130; Clancy's Rights of Women, 3.) He continued the owner of the property used by them in the business down to their separation in 1844. (See authorities,supra.) The rights and powers of Mrs. McKinney, and consequently the title of the defendants, depend upon the effect of the deed of separation then executed between McKinney, his wife and George Langdon, and the subsequent acts of the parties to this instrument. This deed, after reciting differences between the parties, McKinney and wife, and that they had agreed to *622
live separately, provides that all the goods in the two stores, then occupied by them, and all the household furniture, and the leases of the stores and dwelling, and the debts that had accrued in the business theretofore done should thereafter belong to the said Mary for her sole and separate use as if she were sole. That the said Bruce should receive out of the stocks and profits of the business the sum of $2,000, which he acknowledged the receipt of from said Mary. In consideration of which said Bruce transferred to said Langdon all his right to said property for the use of said Mary, and providing further that said Mary should pay all the debts that had accrued in said business. That they should thereafter live separately. That said Mary might thereafter carry on such trade or business as she might choose, the same as if sole, without any interference of said Bruce. That the said Mary should absolutely enjoy and dispose of any property she then had, or might thereafter acquire, the same as if sole and unmarried. It is insisted by the counsel for respondents that there was no consideration received by Bruce McKinney for the deed of separation, inasmuch as the entire stocks of goods and profits of the business were his, and that consequently the $2,000 received by him therefrom was but the taking of a part of what was already his own. In this the counsel is entirely correct; but the further deduction therefrom that for want of consideration the entire deed is a nullity, as to Bruce McKinney, is not quite so clear. Langdon is a party to the deed, and although not named as trustee for the wife, the transfer of the property to him for her use shows that he was a party in that character. Possession of the property was given to the wife, or Langdon, as trustee, at the time of the execution of the deed, and Bruce McKinney never had any thing further to do with it. If possession was given to the wife, she held it under Langdon, to whom it was transferred by the deed. This, then, although without consideration to Bruce McKinney, was operative as a gift by him to the trustee for the use of the wife, accompanied by delivery of possession, with that intent, and thus effectual as a gift irrespective of a *623
consideration therefor. Bruce McKinney thus divested himself of all title to the property then on hand, which became vested in Langdon, as trustee of the wife. It is insisted by the counsel that deeds or agreements of separation between husband and wife will not be enforced either at law or in equity unless there be a consideration therefor. This position is correct. (Beach v.Beach, 2 Hill, 260.) But this is not enforcing the argument. It merely applies the legal rules governing gifts of chattels accompanied by delivery to the agreement and acts of the parties. This gift to Langdon, in trust for the wife, would have been valid against Bruce McKinney and his representatives without any agreement for separation. Existing creditors of Bruce might have set aside the transfer as fraudulent as to them. There are no such creditors in this case. The position of the respondents is no better than that of McKinney, were he a party. (Van Heusen
v. Radcliff,
The judgment below should be reversed and judgment entered dismissing the plaintiff's complaints. As this is a contest between creditors, where equality is equity, this should be done without costs to either party.
All the judges concurring,
Judgment accordingly. *626