Alvord v. Haynes

Sawyer, J. : There were no disputed questions of fact in this case to be submitted to tbe jury. Tbe plaintiff’s title to tbe property in question was clearly established by tbe evidence. She leased tbe farm and paid tbe rent, and tbe property taken in execution was either purchased with her money or raised on tbe farm. True, her husband labored on tbe farm, and acted as her agent in disposing of its products, but tbis did not vest tbe title thereto in him, or give him any interest therein. The right of a married woman to purchase or lease real or personal property and to manage the same through an agent, though that' agent be her husband, and to hold to her own use tbe avails thereof, in cases free from fraud, was fully settled in Knapp v. Smith (27 N. Y., 277). In tbe case at bar there was no proof of fraudulent intent. Tbe act of the sheriff in levying upon the property of Fenn G. Alvord for sale was such an exercise of dominion over it as would sustain an action for its conversion, or replevin, although there was no actual removal. (Stewart v. Wells, 6 Barb., 79, approved by tbe Court of Appeals in Knapp v. Smith, supra.) Trover and replevin in such cases are concurrent remedies. (Allen v. Crary, 10 Wend., 349; Fonda v. Van Horne, 15 id., 631.) It does not change tbe rule nor aid tbe defendants that the sheriff claimed to levy upon and advertised for sale the interest only of Fenn G. Alvord in the property, it appearing that he had no interest therein. (Neff v. Thompson, 8 Barb., 213.) There was sufficient evidence that tbe defendant Tower, authorized tbe proceedings to sustain the verdict as against him; be directed tbe sheriff to get the executions, consulted and advised with him and approved of bis levying upon the property. Slight interferences in such cases will [29] sustain a verdict. (Knapp v. Smith, supra; Farrar v. Chauffetete 5 Denio, 527.) Tbe exceptions must be overruled, and judgment ordered for tbe plaintiff upon tbe verdict. Learned, P. J. and Boardman, J., concurred. New trial denied, and judgment ordered for plaintiff on verdict, witb costs.