Latourette v. Williams

1 Barb. 9 | N.Y. Sup. Ct. | 1847

By the Court, Shanbu-and, Presiding Justice.

It is a well settled principle of law, that a husband cannot maintain a suit in his own name to recover a demand which accrued to his wife before marriage, under a contract made with her: the wife must be joined in the action. (Morse v. Earl, 13 Wend. 271.)

’ Was the act of pledging the note in question, to secure the payment of a loan of money, and afterwards redeeming it, such a reduction of it to possession by the husband, as to destroy the wife’s interest in it? I think not. Nothing short of a release of the demand, or a sale of it, either absolute or conditional, will have that effect. But merely pledging a note does not pass the title, as a sale or mortgage does. (12 John. Rep. 146. 5 Id. 258.) In the case of a pledge, the title remains with the pledgor. (Id.) In case of a mortgage, the title passes at law, although in equity it is considered as a mere lien.

It is said in the books that if the husband reduces his wife’s choses in action into possession, it will operate as an effectual bar to her right of survivorship; but by this is not meant his mere actual possession of the instrument. It means either his receiving the money, or the reception of it by some third person as his agent, for his use, or by the recovery of a judgment and the issuing of an execution in the name of husband and wife, or in the name of the husband alone. (Clancy’s Rights of Married Women, 111, 112, 113. Moehring v. Mitchell, 1 Barb. Ch. Rep. 271.) And where husband and wife sue on a chose in action belonging to the wife dum sola, it will survive to the wife, unless the husband has issued execution ; because, as the action in such a case must be brought in the name of the husband and wife, no inference of the husband’s intention to deprive her of the right of survivorship can be drawn from the suit being brought in then joint names. But the issuing of an execution is considered evidence of the husband’s intention to reduce the chose in action into possession, and thus to bar his wife’s title by survivorship. (3 Atk. 20. 2 Vesey, sen. 677.) So the wife’s title by survivorship to her choses in action may be barred by the assignment of the husband, for a valuable consideration. (1 P. Wms. 380. Clancy, 120.)

In this case the husband has neither mortgaged, sold, nor assigned the demand; and the mere act of pledging the note to^_ another, as security for a temporary loan, was no evidence of an intention to appropriate it to his own use; and his redeeming it afterwards, placed it in all respects in statu quo.

A new trial is granted, with costs to abide the event.