3 Barb. 110 | N.Y. Sup. Ct. | 1848
By the Court,
It was not disputed on the trial but that Tyler, as the deputy of Lyon, took the goods specified in the declaration. That was not a question between the parties. The defendants allege, in their justification, that such goods were in the actual possession, and the property of, John Merritt, against whom they held a fieri facias, at the suit of Robert W. Lansing, under which Tyler had acted. The plaintiff contended that he held them at the time, a portion of them being the separate property of Jane, the wife of John Merritt, the legal title to which was in her trustee, and the residue being his own, and that he had a right to the pos
John Merritt, who was the plaintiff’s father, was examined on the trial, and testified that at the time of the levy the plain-, tiff had charge of the farm, and in effect the possession of the stock, farming utensils, and produce, upon which such levy was made. If this witness was to be believed, the goods were not then in his possession. Whether, under the circumstances, he was a credible witness, or not, was solely a question for the consideration of the jury. A nonsuit cannot be granted on the assumption, by the judge, that the plaintiff’s witness is not ta be believed.
If the goods were in the actual possession of the defendant in the execution, the onus of proving that they were the property of another rested upon the plaintiff: if they were in the possession of another, then the load was cast upon the shoulders of the officer making the levy. The defendants did not produce any evidence of property in John Merritt. They relied apparently, in some degree, upon the conclusions which they drew from facts stated by him, but principally upon the presumption, (against his direct testimony,) that the goods were in his possession, and the inference from that presumption that they belonged to him, and they merely produced exemplified copies of the judgment record and execution in the suit of Lansing against Merritt. The plaintiff’s counsel objected to the admissibility of those copies in evidence, on the ground that the clerk had not certified to their accuracy, in the manner directed by the revised statutes. (2 R. S. 324, § 72.) We think that the judge was right in admitting the evidence. The statute referred to certified copies, not to exemplifications, which are of a higher character, and purport to proceed from a different source.
The plaintiff had a right to go to the jury upon the question as to the actual possession of the goods. If that was in John Merritt, the plaintiff might, still prove that he had a right to reduce them into his own possession. He offered to prove that Mrs. Jane Merritt had, by her father’s will, and certain pro-.
There was lm evidence that any of the goods in question had been purchased with the funds of the husband, or that the wife had derived any part of her separate estate through him. It had been given to her by her father. That he had a right to give jt, to her so that she might enjoy it free from the control or liabilities of her husband there can be no doubt. The creditors of the husband had no claim upon it, either at law or in equity. The stock and farming utensils, it is true, had been purchased by him; still, as it was with her property, that could not make any difference. He had been constituted the agent of the trustee by an order of the court of chancery; but if he had not been, and there had not bgen in fact any trustee named
The fact that many of the goods had been in possession of John Merritt, for a considerable period, made no difference as to the title, or the right of the trustee to dispose of them, or to recover their value if tortiously taken by or in behalf of a creditor of the husband. It is difficult to see how the wife could enjoy the avails of her property without his participation, so long as they resided together. Indeed she might havp expressly authorized him to use or enjoy her property, without giving it to him ; and his creditors could not complain, 'as they would lose nothing by the transaction. Our legislature has recently gone very far to authorize such a state of things. It is not now considered to be at variance with the policy of our institutions.
The possession of the property by the husband, if not inconsistent with the nature of the trust, is not considered as fraudulent. In Cadogan v. Kaunt, which was tried before Lord Mansfield, and which came before the court of king’s bench on a motion for a new trial, (Cowp. Rep. 432,) the goods, which consisted principally of household furniture, had been conveyed by the husband, on a marriage settlement, to trustees, for the use pf himself for life, remainder to the wife for life, and the ultimate remainder to their sons. They were in the possession of the husband, and were seized on an execution by the defendant who was a judgment creditor. The suit was brought by the trustees and they recovered the goods. In Foley v. Burnell, tried before Lord Mansfield, at Westminster Hall, in 1779, the suit was brought by the trustees under a will for wines,
The possession of the husband may or may not be considered as a badge of fraud, according to the circumstances. There may be facts which might warrant the inferences that the goods had been purchased by the husband with his own funds, and that he had resorted to the pretext that they were a part of his wife’s separate estate, to protect them from the reach of his creditors. These were subjects proper for the consideration of the jury. The judge should, we think, have admitted the evidence, and then submitted the whole matter to therm
There must be a new trial; the costs to abide the event of the suit.