Child v. Pearl

The opinion of the court was delivered by Barrett, J. That the mare became the property of the plaintiff by the gift of her first husband, in full and absolute title, is assumed by both parties in this case. It is found by the county court that “ the gift was intended and understood as a gift to her separate use.” In Tulett v. Armstrong, 4 My. & Cr., 390, it was held that the husband could not be permitted to interfere with the property given or settled before the marriage to the separate use of the wife. And in Newland v. Paynter, Ib., 408, it was held that personal chattels bequeailed to a single woman for her separate use cannot be taken in execution by a creditor of the after-taken husband. The same doctrine is promulgated by Chancellor Walworth, in Shirley v. Shirley, 9 Paige Rep., 363. See also Barron v. Barron et al., 24 Vt., 375. Those cases were in the courts of chancery for remedy and relief which could not be had under the circumstances in a court of law. But the doctrine stands upon the ground that the husband had neither the equitable nor the legal right to the property as against the wife. And in the English cases it is held that a person marrying a woman [228] with property so owned and held by her, is considered as adopting the property in the state in which he finds it, and bound by equity not to disturb it. The reason is, that the original donor could prescribe such terms and conditions as to the tenure by which his gift should be held as he saw fit. This view of the law would seem to furnish in the present case a firm ground for the plaintiff to stand on in making the requisite title in herself, to enable her to maintain trover for the property against the defendant, irrespective of the ante-nuptial agreement. And on this view the county court acted in adjudging the cause in favor of the plaintiff. Again : it is conceded, as it well may be, in view.of the doctrine and rule established by many decided cases, that the husband may, during coverture, make a valid gift to the wife, by which she will become the owner, in her own separate' right, of personal property. It is also conceded that by the treatment of property owned by the wife at the time of marriage, or accruing to her in her own right during coverture, by and between the husband and wife as continuing to be her separate property in her own right, unaffected by the fact of marriage, such property continues to belong to the wife the same as if she was not covert. A marked case of this kind was Curtis v. Hapgood—Robinson trustee, and Mrs. Hapgood claimant—decided at the general term of the supreme court, 1859, and not reported. The claimant had money at the time of her marriage to the defendant in 1835, and earned money by working at her trade as tailoress every year after marriage. She also inherited and received money from her mother’s estate during coverture. In 1852 she bought a house and lot, for which she paid out of said money, taking the deed in her own name. She and her husband occupied the premises as their home till 1856, when she sold and conveyed them to the trustee and took his note for the purchase money. The plaintiff in that action sought to hold Robinson as trustee for the money due on that note. Mrs. Hapgood entered as claimant in her own sole name and right, and appeared by her attorney, without other representative or protector. The case was twice argued and fully considered. It was adjudged that she was entitled to hold the note and the money due on it as her own. [229] In this connection the case of Richardson, Adm’r, v. Merrill, 32 Vt., 28, may properly be referred to, and also Cardell v. Rider, 35 Vt., 47, as indicating the prevailing ideas of the law on this subject in this state. See also Richardsons. Wait, 39 Vt., 585 ; Caldwell, Adm’r, v. Renfrew, 33 Vt., 213. In these cases, and especially in the last two cited, the legal title of the wife was recognized in a court of lawj as existing against the effect of coverture, by reason of an understanding between the husband and wife after marriage, railer implied than expressed, that certain property, which would otherwise belong to the husband, should remain and be the sole and separate property of the wife. And in Curtis v. Hapgood, and in Richardson s. Wait, such legal title was allowed to prevail against the husband’s creditors. It would seem then, a fortiori, that one contemplating marriage to a woman owning personal property might preclude himself, by a waiver before marriage, from a right which would otherwise accrue to him incidentally by the fact of marriage. In the present case, the title to the mare being already in the plaintiff, what took place between her and her contemplated husband was intended, and could only operate, to prevent title being divested from her by operation of law, on the taking place of the marriage. It is not the case of the wife acquiring title from the husband, either in fact or in prospect, by virtue of an ante-nuptial agreement. It is only the case of the contemplated husband waiving a right which the law would otherwise confer on him as a result of the marriage. In the language of Judge Peck in Albee, Adm’r, v. Cole, 39 Vt., 319, “ the husband has abandoned and surrendered to his wife his marital rights as to this property, or railer what would have been his rights had there been no ante-nuptial agreement; and hence the right of the wife to this property as her sole and separate property was perfect and absolute as against her husband.” Nevertheless the defendant claims that the alleged ante nuptial agreement, in order to have effect, should have been in writing, under the statute of frauds. This is an action of trover against one not a pai’ty to said agreement. The action is not based on [230] an agreement in consideration of marriage. It is based on a title which is conceded to have been absolute in the plaintiff up to the moment of marriage, and continued to bo absolute thereafter, unless it was defeated by the fact of the plaintiff’s marriage. It should be kept in mind that the lack of a writing does not render a contract in consideration of marriage in any way illegal or void under that statute. The statute only affects the matter of evidence by which such a contract may be proved, when it is sought to charge a person upon it by action. Having title to the property in her own right, she does not depend on that contract as the source of her title, or the ground of her right to maintain this action. The effect of said agreement was not to create a right of property in her in the future, upon the consummation of the marriage ; but its purpose and effect were to leave the right of property already existing in her unaffected by the ordinary legal effect of the marriage. The agreement became executed and its effect realized at once upon the fact of marriage, in the fact that the right of property was not transferred to the husband by such marriage. If it was not so transferred, then there never was a scintilla of title in him; and, of course, he could not vest the defendant with any title or right property in the mare. The plaintiff, then, is standing upon her title and right of property, unaffected by her marriage to the defendant’s vendor, and is seeking in this suit to charge the defendant in virtue of that title, and not upon an agreement in consideration of marriage. It is not a suit to enforce the performance of an executory ante-nuptial agreement, or to recover damages for the breach of such agreement. To the agreement in question the defendant was neither party nor privy, nor is he to be chargeable upon it by reason of any relation he sustains to it by operation of law. He came into his relation to the property by voluntary purchase, but not so as to be able to invoke the doctrine of fraud in law, as a bona fide purchaser without notice,—for the husband never owned the property. The defendant got by his purchase only what right and title the husband had, as between himself and wife. So it is difficult to see how the defendant holds a status that entitles him to use the [231] statute of frauds as a shield. This view of the law was obviously entertained and acted on by counsel on both sides in the case of Albee, Adm’r, v. Cole, supra,—a case that was most vigorously contested both in the county and supreme court. The judgment is affirmed.