Miller v. Delamater

By the Court, Sutherland, J. There is no doubt of the general rule that the husband is entitled to all the personal property which belonged to his wife at the time of the marriage, or which she may acquire during coverture ; and it necessarily follows, that where that property consists of negotiable paper, payable to her or her order, it is, in legal effect, payable to her husband, and an effectual transfer by judgment can, as a general rule, be made only in his name. 1 Strang, 516. 3 Wils. 5. 10 Mod. 245. 2 Black. R. 1081. 4 T. R. 361. 3 Burr. 1776. 2 Maule & Selw. 393. Chitty on Bills, 25, 149. Barlow v. Bishop, 1 East, 432, 3 Esp. N. P. C. 266, was an action of assumpsit by the plaintiff as endorsee of a promissory note made by the defendant, payable to Ann Parry, and by her endorsed to the plaintiff. It appeared in evidence that Ann Parry was a married woman, who carried on the business of a milliner at Birmingham, in her own name, with the consent of her husband; that the consideration of the note was goods furnished to her by the plaintiff who was a haberdasher in London; that she had dealt with the plaintiff in her own name, and had given a note for the money in her own name ; that the plaintiff having pressed Mrs. Parry for payment, the defendant, with a view to serve Mrs. Parry, and with full knowledge of her being married, gave her the note in question, with a view that she should pay it over to the plaintiff, in order to stop his proceedings against her, which she did by endorsing it over to him. The defence was, that the plaintiff made title through Ann Parry, who was a married woman, and who for that reason, could not endorse the note ; that the moment it was given, it became the property of the husband, and could be transferred by him alone. Lord Kenyon, before whom the cause was tried, sustained the objection, and held that the plaintiff should have declared on the note, according to its legal effect, that is, as a note payable to the husband; and if it had appeared that the husband had allowed the wife to endorse bills and notes on his ac [436] count, the plaintiff might then have recovered upon the wife’s endorsement. Upon a motion for a new trial, 1 East, 434, Lord Kenyon, who delivered the opinion of the court, remarked, that it was clear that the delivery of the note to the wife vested the interest in her husband ; but as he permitted her to carry on trade in her own name, and this was a transaction in the course of that trade, if she had endorsed the note in the name of her husband, the jury might have presumed an authority from her husband for that purpose ; but as the endorsement was in her own name, it was impossible that she could pass the interest of her husband by it. A new trial was denied. This decision, it will be observed, proceeds upon the ground ■ that the husband had a beneficial interest in the note ; that it became his property the moment it was delivered to his wife; and upon that assumption, the wife undoubtedly could not transfer it by endorsement, without either the express or implied authority of the husband ; but if (as it would appear from the statement of the case) the note was made by the defendant for the accommodation of the wife, without any consideration, and for the specific purpose of being endorsed by the wife to the plaintiff, it was not a valid and effectual instrument while it remained in the hands of the wife or husband, and it could not legally have been used by either of them for any other purpose than that for which it was made, and to which it was applied. It appears to me, therefore, with great deference and respect, that it might well have been held that the jury, under the circumstances of the case, might have presumed an authority from the husband to the wife to take and endorse the note in the name by which she carried on her business. Cotes v. Davis, 1 Campb. 485, was an action by an endor-see against the maker of a promissory note. The note was made payable to Mrs. Carter or order, and was endorsed by her to the plaintiff, for a valuable consideration, by the name of M. Carter. It was proved that Mrs. Carter was the wife of a man by the name of Cole, who was still living, bfit passed in the world by the name of Mrs. Carter. It likewise appeared that the defendant had asked for indulgence, and had promised to pay the note. Garrow, for the defendant, contend [437] ed that no title to a bill of exchange or promissory note could be made through the endorsement of a feme covert; and that •what the defenant said after the bill became due was immaterial, if he was not previously liable. Lord Ellenborough held that the plaintiff was entitled to recover. He remarked that a husband may authorize his wife to endorse bills of exchange or promissory notes as his agent; that such authority might be presumed ; and that it might farther be presumed, that the husband authorized her to endorse notes in the name by which she passed in the world. It is true that Lord Ellen-borough seemed to attach considerable importance to the subsequent promise of the defendant to pay the note. This case, however, establishes the principle, that a married woman may make a valid endorsement of a note, by a name different from that of her husband, and that an authority so to endorse may be presumed from all the circumstances of the case. In Leicester v. Biggs, 1 Taunt. 367, it was held that where a feme covert had for many years been separated from her husband, and during that time had received for her separate use the rent of her own property, which accrued to her by devise after the separation, she shall be presumed to have received the rent and to have acknowleged the tenancy, by her husband’s authority ; and the husband was nonsuited in an action of ejectment against the tenant on that ground. No case certainly can exist, in which the circumstances would justify a stronger presumption of authority from the husband to the wife to endorse a note in her own name, than the one at bar. The note was the separate property of the wife before her marriage ; subject to her exclusive control by virtue of an ante-nuptial contract, in which the husband had expressly renounced all interest in and authority over the property of his wife, and had united in an instrument which transferred it all to a trustee for her exclusive benefit. He has no beneficial interest whatever in the note, and no right in any manner to interfere with it. He can never become responsible in consequence of this endorsement. The suit is brought for the benefit of the wife; the endorsement having been made merely for the purpose of bringing the action in the name of the plaintiff. The objection, therefore, is a matter of [438] form only, and ought not to be permitted to defeat this action. If it is necessary to support the endorsement, it may well be presumed that the payee, in making it in her own name, acted by the express authority of her husband. The wife may be the agent of the husband for this or any other lawful purpose. Church v. Landers, 10 Wendell, 792, and cases there cited. The nonsuit on this ground was properly refused. The trustee of Mrs. Hardner might probably have recovered this note as assignee under his trust deed. But that assignment creates no legal objection to an endorsement made by her with the knowledge and assent of her trustee ; and such assent abundantly appears in this case. Did Mrs. Harder forfeit her right to the note and the money for which it was given, by her second marriage ? It is admitted to have been saved by her from the income or interest of the real and personal estate given to her for life, and not to have been any portion of the principal. It was separated from the mass of the estate, and a new and distinct security taken for it to herself. A tenant for life of real or personal estate, is bound to account for the principal only. The income or interest is absolutely his, and he may appropriate or invest it as he pleases. Lord Douglass v. Chalmers, 2 Ves. 501. Fearne v. Young, 3 id. 549, 552, 3. 2 Dall. 183. 2 Meriv. 192. The judge was therefore right in refusing to nonsuit the plaintiff on this ground also; and the motion for a new trial must be denied.