44 N.Y. 298 | NY | 1871
Lead Opinion
The evidence shows that the plaintiff received money from her mother in Russia when she was twenty-one years old; that she had been married sixteen years; and that she left Russia six years before the trial, and came to Rochester, and had lived there since. She kept some of the money in a savings bank and some in her own possession, and from time to time loaned some to her husband, and he repaid it to her. On the 2d day of April, 1861, she loaned him of this money $800 and took his note, payable in eight months, and in September of the same year she loaned him $420 and took his note, payable in three months. On the 2d day of January, 1862, he transferred to her by bill of sale the goods in store, in payment of these notes, and the notes were canceled.
The plaintiff and her husband were married in 1847, but it does not appear where they were married, nor where they lived at the time of their marriage, and it does not positively appear that they lived in Russia when she got the money. All that appears upon this subject is that she got the money of her mother in Russia, and that she afterward left Russia and came to this country, and it does not appear in what year she got the money of her mother.
As I view this case, it is wholly unimportant whether we assume that the plaintiff and her husband were citizens of Russia or whether we assume they were citizens of this State at the time she received this money from her mother.
There is no proof what the laws of Russia in reference to the property and rights of married women were, and there is no presumption that the common law was in force there. *301
Such a presumption is indulged by our courts only in reference to England and the States which have taken the common law from England. The courts cannot take notice of the laws of Russia unless they are proved, and in the absence of proof our own law must of necessity furnish the rule for the guidance of our courts. (Monroe v. Douglass,
While I do not think it of the least importance whether it was before or after 1848, that the plaintiff received this money from her mother, there is no proof, and there can be no presumption that it was before 1848. She had this money for at least five or six years before she loaned it to her husband, she got it from her mother, claimed it as her separate property, and it was recognized and treated as such by her husband. If under such circumstances, the husband's creditors claim that the money really belonged to him, because it was given to the wife before 1848, they should prove it, and not ask the court to presume it. But if the plaintiff received the money as a gift from her mother, before 1848, the husband chose not to avail himself of his marital right to claim it. He consented that his wife might have it as her separate estate, and it thus became her separate estate in equity, and when she loaned him the money she became in equity his creditor, and he was equitably bound to pay her according to his agreement, and its payment could in equity be enforced against him. While he was in equity bound to pay his wife, and she could compel him to do so, is there any reason for saying that he could not pay her voluntarily? Suppose he had repaid to her the money, will it be claimed that his creditors could take the money away from her?
It has frequently been held, that the husband has the right, and owes the duty, to pay such a debt, and that he can prefer it in a voluntary assignment made for the benefit of his creditors. (Schaffner v. Benton, 37 Barb., 45; Wolfe v. Security *302 Fire Ins. Co.,
Upon the trial the motion for a nonsuit was upon the sole ground that the transfer of the goods from the husband to the wife was invalid, and gave her no title. It was not in any way claimed that the evidence did not show that the husband had sufficiently waived and relinquished to his wife his marital right, if he ever had any, in the money which she *303 got from her mother, or that her debt against her husband was a valid debt. The claim made was that the husband could not pay the debt by a transfer and delivery of the property directly to the wife, and it was upon this claim alone that the General Term granted a new trial; and in this, as I think I have sufficiently shown, there was error.
I, therefore, favor a reversal of the order of the General Term, and a judgment for the plaintiff upon the verdict with costs.
Dissenting Opinion
The bill of sale to the plaintiff, from her husband was void at common law, and assuming that the title claimed under it, could be sustained on proof by her, that it was given and accepted in satisfaction of a debt due to her for money lent him from a separate estate belonging to her, there appears an insuperable objection to her recovery. The evidence does not warrant the conclusion that she had such separate estate, She testified that she received the money for which the notes were given from her mother in Russia when she was twenty-one years of age, that she was married in 1847, that she left Russia in 1857, brought the money with her, put some of it in the Rochester Savings Bank and kept the residue in her bureau, and that she had made loans of a part two or three times, which had been repaid besides the money for which the notes were given.
Although it is not stated in terms that she was a native of Russia and married there, no other conclusion or inference can fairly or properly be drawn from her testimony.
There was no proof of any law or regulation in Russia that secured the property to her as her separate estate, nor of any agreement between her and her husband before she left Russia, that the money received there and brought over here with her was to be her separate estate. Nor is there any evidence that the money was paid to her after the passage of statutes of this State in 1848, p. 307, and 1849, p. 528, securing the ownership of property to married women as their *304 separate estate. All that is proven is that she received it when she was twenty-one years of age, but it does not appear when she attained that age. There is, therefore, nothing in the case to show that the rights of the plaintiff and her husband were not to be governed, controlled and determined by the rules of the common law when she took the notes for which the bill of sale was given. (See Monroe v. Douglas, 5 N.Y.R., 1 Selden, p. 447.) That transaction cannot be construed into a settlement of the amounts for which the notes were given for the separate use of the wife. It is clear that it was not so intended. On the contrary the parties appear to have acted on the mistaken assumption that the wife could hold and dispose of the money as her own, notwithstanding her coverture. The most that can be claimed from the facts in the case is, that the husband had not asserted his marital rights, but, in the closing language of WRIGHT, J., in giving the opinion of the court in Ryder v. Hulse (24 N Y Rep., 372-380): "It cannot be that because a husband suffers his wife to manage and deal with his estate as though it were her own, that he divests himself of ownership and assumes the character of trustee to hold it to her use." Much less can the omission to assert his own marital rights to the property owned by his wife, at the time of her marriage or subsequently acquired, operate to the prejudice of his creditors. Assuming the views above expressed to be correct, the court erred in denying the motion made on the close of the testimony, for a nonsuit on the ground that the transfer of the goods from the husband to the wife was invalid and gave her no title, and also in refusing to charge the jury, that if they found that the sale of the goods was from husband to wife, that is in itself void, and also in holding that the defendant was limited to the two questions, whether there was actual fraud, and as to the value of the property. I will only add, that the court could not, after the evidence given by the plaintiff, that her husband after the sale of the goods never staid in the store, and that he never sold any thing after she bought it out, charge, as requested by the defendant's counsel, "that if the court holds *305 that the husband could sell to the wife, then that the continued possession of the property in the husband without any change of possession, as this sale in this case, raises the presumption that the sale is fraudulent, and that, as against these creditors, it is absolutely void, unless shown to be in good faith." The request, therefore, was properly refused.
The order for a new trial was, on the other grounds, above stated, properly granted. It must, therefore, be affirmed with costs, and judgment absolute must be rendered against the plaintiff, with costs, pursuant to her stipulation.
For affirmance, LOTT, Ch. C.
For reversal EARL, HUNT, LEONARD and GRAY, CC.
Order of the General Term reversed and judgment ordered for the plaintiff upon the verdict, with costs.
