Cook v. Bellack

Bardeekt, J. Upon the general question of whether the findings are contrary to the evidence, we have no hesitancy in saying that there is evidence to support the facts found, and no clear preponderance against them. The finding that the defendant had no title and no possession of the place in controversy, and makes no claim thereto, is decisive against the plaintiffs. The title and possession is found to be in defendant’s wife. Since a married woman may hold real estate in her own right, and may convey the same in like manner as if she were unmarried, there must attach to her title, and accompany it, all the usual incidents and marks of ownership. If the real estate be a dwelling house, in which she resides, the presence of her husband there as the head of the family cannot in the least detract from her full possession and ownership. Mygatt v. Coe, 152 N. Y. 457. So far as the maintenance of the shed is concerned, if it be admitted the place was a street, no liability rests upon defendant therefor. Ilis only act in connection therewith was to repair it, as agent of his wife, after it had blown down. The fact that he uses it creates no obligation against him which may be enforced in this suit. The legal possession is with the owner, and she, and not her husband, is responsible for its maintenance. We agree fully with the conclusions stated by the trial court that the plaintiffs have no standing in a court of equity. By the Court.— The judgment is affirmed.