Holcomb v. Peoples' Savings Bank

Mr Justice Mercur delivered the opinion of the court, January 19th 1880. This was a feigned issue to try the right to certain personal property claimed by the plaintiff in error, but levied on as the property of her husband. The Act of 11th April 1848, declares “ every species and description of property, whether consisting of real, personal or mixed, which may be owned by or belong to any single woman, shall continue to be the property of such woman, as fully after her marriage as before, and all such property of whatever name or kind, which shall accrue to any married woman during coverture, by will, descent, deed of conveyance, or otherwise, shall be owned, used and enjoyed by such married woman as her own separate property; and the said property, whether owned by her before marriage, or which shall accrue to her afterwards, shall not be subject to levy and execution for the debts or liabilities of her husband.” Property of a married woman acquired after the passage of this act is as clearly exempt as the property of any third person, from execution against her husband. Her property is thereby fully protected. To guard against an Ibuse of this law, and to prevent the ¡moperty of the husband from being held in the name of his wife, to the injury, of his creditors, she must establish her right to the property which she claims by clear and satisfactory proof. If purchased by her, she must show by like proof that it [343] was paid for out of her own separate funds. If her right to it when acquired is thus established, it is not necessary, to protect it from the creditors of her husband, that her possession should be exclusive of him. Owing to the intimate character of the marriage relation, such a rule would deprive the wife of the use and enjoyment of her property which the act contemplates: Hoar v. Axe, 10 Harris 381; Manderbach v. Mock, 5 Casey 43; Barncord v. Kuhn, 12 Id. 383; Walker v. Reamy, Id. 410. When the evidence clearly shows the separate property to be in the wife, she is entitled to the benefits of all its products, increase and avails. The ownership of a farm carries with it the right to its products; the ownership of personal estate draws to it the increase thereof: Rush v. Vought, 5 P. F. Smith 437 ; Silveus’s Ex’rs v. Porter, 24 Id. 448. The uncontradicted evidence in this case shows that by the will of her father, proved in 1854, the farm on which she and her husband lived was devised to them. They then took by entireties and not by moieties, and the husband could not by his own conveyance, without his wife joining, divest her estate: Doe v. Parratt, 5 Term Rep. 652. They were not as joint tenants, seised of an undivided moiety of the whole, but being husband and wife were seised of the whole. The husband had the entire use, and the wife had the entire use: Plowden 58. Such an estate is not subject to the Statutes of Partition: 4 Kent’s Com. 363. The estate which the wife thereby took was not changed by the Act of 1848 relating to married women, but it was, by its provisions, protected from the dominion and control of her husband. So fully was her estate therein secured to her, that a purchaser at sheriff’s sale, under a judgment against her husband of his interest in the farm, could not recover possession during her life. He could not dispossess her of^my part of the premises, nor could she be compelled to take a stranger into' concurrent possession with her. She has a right to hold it with her husband alone. Her right is not impaired by the Act of 1848, but she is protected in its enjoyment: Diver v. Diver, 6 P. F. Smith 106; McCurdy v. Canning, 14 Id. 40; Gillen’s Executors v. Dixon, 15 Id. 395. Nor would the fact that her husband’s labor assisted in creating the products derived from her estate in the land, make them liable for his debt: Rush v. Vought, supra; Silveus’s Ex’rs v. Porter, supra. In addition to the estate in the farm the evidence also shows that the plaintiff in error afterwards received divers sums of money; $100 dollars from her mother’s estate, $240 from her sister’s estate, $450 from the proceeds of land at Erie, acquired from her father’s estate, and $7 0O from a sale of part of the farm. Considerable timber grown on the farm was sold. She testified that the sums she received from the several estates were used in buying horses, cows, household goods, and in keeping up the farm. That [344] she made and sold butter and cheese, and they raised and sold grain and stock. The testimony of her husband concurs substantially with hers. They resided on the farm continuously for some eleven years before the property in question was taken in execution. He was engaged in buying and selling stock, and in trading and exchanging hers as well as his own. Her money was mingled to some extent with his, in making purchases, yet there is evidence tending to show that her right to some of the property acquired, and to a part of the increase of the stock was recognised by them. The Act of 1848 was designed to protect a married woman in the enjoyment of her property which she acquired after its passage. Her marital relations prevent her enjoying it separate and apart from him. While living with him she may not have a possession separate and distinct from his possession. If, however, it be clearly shown that the original property was hers, then all the product and increase become hers, as long as they can be followed or identified. The fact that her husband acts as her agent in buying and selling and in investing her money, does not, against her consent, transfer her right of property to him. We think there was sufficient evidence tending to show that many items of property levied on, were the product or increase of other property clearly proved to have been the estate of the plaintiff in error, and the question of her ownership should have been submitted to the jury. The mere fact that there may be difficulty in determining which articles are the product of her property did not justify the court in taking the question from the jury.- While the husband is entitled to the reasonable services of his wife, yet if a portion of her time was occupied in the care and management of her separate property whereby its productiveness was increased, the product was not thereby made liable for his debts. We*think the learned judge held the rule too stringently against the rights of the plaintiff in error, and in so far as the answers, and parts of the charge, covered by the assignments, are in conflict with this oninion, the assignments are sustained. Judgment reversed, and a venire facias de novo awarded.