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Opinion by GROVER, J.

Kinney and wife, and that they had agreed to 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 stock and profits of the business, the sum of two thousand dollars, 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 the Respondents that there was no consideration received by Bruce McKinney for the deed of separation, inasmuch as the entire stock of goods and profits of the business were his, and that, consequently, the two thousand dollars 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 anything 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

Opinion by GROVER, J.

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 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 agreement. 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


The position of the Respondents is no better than that of McKinney, were he a party (Van Heusen v. Radcliff, 17 N. Y. 580).

The property in question was acquired by the wife, in business carried on exclusively by her, in her own name, with the proceeds of the property thus transferred to Langdon, and by purchases upon her own credit, and in her own name, without any interference at all of the husband, who lived separate and apart from her, except occasional visits upon his return to New York from his voyages at sea, and without any of his means or credit being used in the business.

The counsel for the Respondents insists that the husband having permitted the wife to carry on this business, and make purchases upon credit, became liable as debtor for such purchases, and cites in support of this position Gates v. Brower, 5 Selden, 205, and cases there cited.

A close examination of these cases will show that they are only applicable to cases where the facts warrant the presumption

Opinion by GROVER, J.

of an authority from the husband to the wife, to make the purchases as agent for him. So far from there being any such presumption in this case, it is wholly repelled by the facts showing an entire want of authority by the wife to use the credit of the husband.

The rule is, that when credit is given solely to the wife, upon a sale to her, the husband is not liable, although they live together, and he sees her in possession of the goods thus bought (Story on Contracts, 4th ed. § 103; 2 Bright on Husb. and Wife, 17, 18; Goulding v. Davidson, 26 N. Y. 604). In Knapp v. Smith (27 N. Y. 277), it was held by this Court, that since the statutes of 1848 and 1849, enlarging the rights of married women, and before the act of 1860, a married woman might acquire property, by purchase upon credit, to her own use, and that the husband acquired no title to such property, notwithstanding the inability of the wife to make a contract binding herself to pay for such property.

The separation in this case was in 1844, and the business was carried on by the wife until 1854, when she made the assignment to the Appellants, and delivered the property in question to them.

There is no express finding as to when the purchases of the property on hand in 1854 were made, but they must have been after the passage of the act of 1848, as the Statute of Limitations would have been a bar upon all contracts made before that time, when the assignment was made.

The conclusion is, that Bruce McKinney had no title to the property in question, and that, consequently, none was acquired by the Respondents under his assignment to them.

But if wrong in the above reasoning, how then stands the case? If Bruce McKinney had title to, or any interest in the property, he had expressly authorized his wife by the deed to dispose of the same as she chose, the same as if sole and unmarried. Clearly, he could not annul this power, after execution by the wife, conferring interests upon third persons, to the prejudice of such persons.

Opinion by GROVER, J.

It is said there were no such interests, for the reason that, the wife being incapable of binding herself to pay for goods purchased by her upon credit, there were no debts, and, consequently, no creditors for whom the Appellants are trustees.

This, in one sense, is true; but when the wife has actually paid for goods so purchased, the money so paid could not be recovered back by her; and where, as in this case, she has provided for such payment by transferring goods for that purpose, over which she had the absolute power of disposition against all the world, such transfer will not be set aside, although no judg ment at law could have been recovered against her for the price.

The title of the Defendants can be sustained under the power given by the husband to the wife to dispose of the goods, which was exercised by her in their favor, before any pretended revocation by the husband.

That power was ample to make an assignment for the benefit of creditors-it was to dispose of the property the same as if sole and unmarried.

The judgment below should be reversed, and judgment entered dismissing the Plaintiff's complaint. As this is a contest between creditors, where equality is equity, this should be done without costs to either party.

All concur.


State Reporter.

Opinion by CLERKE, J.


Former Judgment-Estoppel-Prospective Damages.

Where the same embankment, the same ditches, &c., which by a former judgment have been adjudged to have caused damages to the Plaintiff, are continued, causing subsequently similar injuries, the Defendant will be estopped by such judgment from denying his liability in a subsequent action to recover for like subsequent injuries caused by the continuance of said embankment, &c.

When prospective damages may be recovered discussed by Clerke, J.

CLERKE, J.-This action is brought to recover damages for injuries caused by keeping and maintaining the Defendants' railroad track, and ditches along the side thereof, in such manner as to cause the water to flow back upon land belonging to Plaintiff, in injury of his crops.

George M. Barnes, being then owner of said farm, conveyed, on the 27th August, 1852, to the Buffalo and Lockport R. R. Co., a strip of land five rods wide through the same, on which the railroad was constructed.

The Defendant, by the consolidation of several railroad companies, under the act of 1853, succeeded to all the rights of the Buffalo and Lockport R. R. Co., to said strip of land, and to its railroad.

On the 3d of August, 1853, Barnes conveyed said farm to the Plaintiff, consisting of about 120 acres, subject to the right of way of the Buffalo and Lockport R. R. Co., as the same was then used and occupied by the company. The Plaintiff claims in this action to recover damages for the flooding of his land, since October 11th, 1855, and proved at the trial, that by the construction and maintenance of the Defendants' railroad, large quantities of water, in time of flood, were brought down the railroad ditches from land lying northerly from the Plaintiff's land, which, before the construction of the road, found an outlet into a creek, in another direction, without passing over the said land, and that seve

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