Sharp v. Maxwell

IIaitdy, J., delivered tbe opinion of tbe court. Tbe merits of this case, depend upon ttbe question, whether tbe money with'which tbe complainant’s husband purchased the slave Antoinette, was in law the separate property of the wife, or not; for if that be not clearly or satisfactorily shown, the title of the defendant should not be disturbed. The declarations of the husband, made while the slave was in the possession of himself and his wife, as to the means by which the purchase-money was paid, are admissible against him and those claiming under him, to show that the separate property of the wife furnished the means to make the purchase. But the question here is, whether those declarations, together with the other evidence in the case, are sufficient to show that the money was in law, the separate property of the wife. It is true, that the husband stated that the money belonged to his wife, and was furnished by her. But his declarations do not show how it was her separate means, — whether it was money which in law belonged to him, but which he permitted her to treat as her own, and which therefore he called her own, which is not unusual in many instances, when the wife has been the meritorious cause of acquiring the money, though it belongs in law to the husband, — or whether it came to her by or through him. This uncertainty, however, is removed, by the proof introduced in behalf of the complainant, to show how it was her separate means. By that, it appears, that the greater part of the money was given to her in North Carolina, by her father, in the year 1836, — which would render it the property of the husband; and so far as the residue of the money is traced as coming to her, it appears for the most part to have been given to her by the witness Dodd, about the spring of 1838. All this was before the purchase of the slave in the fall of 1839, and before the passage of the act of that year in relation to the rights of married women, — and of course, this money was in law the property of the husband. The residue of the money, even if it were satisfactorily shown to be her separate property, is a very inconsiderable portion of the purchase-money. So far, therefore, as the proprietorship of the money by which the slave was purchased, is shown by the proof, it appears to have [592] belonged in law to the husband; and it is immaterial to the rights of persons claiming title under him, whether he regarded it as the property of his wife or of himself. While the law is sedulous to protect the rights and property of married women, such protection will not be given unless when it clearly appears that the property is the separate estate of the wife ; and in this case, we do not think that the evidence is sufficient to establish such a separate property, especially to the prejudice of a purchase from the husband. The decree is affirmed.