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Bertles v. Nunan

12 Abb. N. Cas. 283 Court N. Y. Court of Appeals ; English

Delivered by Earl, J.

Contents

Majority

p. 283
BERTLES v. NUNAN.
N. Y. Court of Appeals ;
April, 1883.

Headnote

Husband and Wire, and the Married Woman’s Statutes.— Deed.—Tenancy by the Entirety.
The common law rule that a deed to husband and wife gives them an estate as tenants by the entirety, has not been changed by the married woman’s acts of 1848, 1849, 1860 and 1863.
Under the common law rule on this subject, when land was conveyed to husband and wife, they did not take as tenants in common, nor as joint tenants, but became seized of - the entirety, per tout et non per my, and upon the death of either the whole survived to the other. The survivor took the estate, not by right of survivorship simply, but by virtue of the grant which vested the entire estate in each grantee. During the joint lives the husband could, for his own benefit, use, possess and control the landj and take all the profits thereof, and he could' mortgage and convey an estate to continue during the joint lives, but he could not make any disposition of the land that would prejudice the right of his wife in case she survived him.
L. 1848, p. 307, e. 200, § 3, as amended by L. 1849, p. 538, c. 375,— allowing married woman to take, &c., from any other than her husband and hold to her sole and separate use, and convey, &c., interest or estate therein, in the same manner and with like effect as if unmarried, &c.,—gives' the wife no greater right to receive conveyances than she had at common law, but its sole purpose was to secure to her during coverture, what she did not have at common law, the use, benefit and control of her own estate, aud the right to convey and devise it as if unmarried.
L. 1860, p. 157, c. 90, § 1,—which provides that, the property as her sole and separate property of a married woman and that which comes to her by descent, devise, bequest, gift or grant, or which she acquires by her business or services on her sole or separate account; and that which a woman married in this State owns at the time of her marriage, &c., shall notwithstanding her marriage be and remain her sole and separate property, not subject to the interference or control of her husband, &c., and section 3 of that act as amended by L. 1862, p. 343, c. 173, providing that “any married woman possessed of real estate as her separate property may bargain, sell and convey such property, and enter into any contract in reference to the same, with the like effect in all respects as if she were unmar
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ried,”—do not limit or define what estate the husband and wife shall take in lands conveyed to them jointly. Their utmost effect is to enable the wife to control and convey whatever estate she gets by any conveyance, made to her solely, or to her and others jointly. Whether these provisions apply to real property conveyed to husband and wife.—Query ?
In general the common law rule as to the unity of husband and wife has not been abrogated further than expressly indicated by the provisions of the married woman’s act. The common law incidents of marriage are swept away only by express enactments.[1]
It seems, that the common law rules as to the liability of the husband for the torts and crimes of his wife are still substantially in force,[2]
The cases of Goelet 0. Gori, 31 Barb. 314 ; Farmers’ & Mechanics’ Nat. Bk. of Rochester 0. Gregory, 49 Barb. 155 ; Miller 0. Miller, 9 Abb. Pr. H. 8. 444; Freeman 0. Barber, 3 Supm. Ot. {T. <6 0.) 574; Beach ®. Hollister, 3 Han, 519; Ward 0. Krumm, 54 How. Pr. 95 ; Forsyth 0. McCall, 27 Alb. L. J. 199, and Meeker 0. Wright, 7 Abb. H. T. Big. (first supplement to new edition) p. 602, note 3,—approved.
The cases of Feeley 0. Buckley, 28 Hun, 451 ; Zorntleui 0. Bran, 16 WeeHy Big. 458; and Meeker 0. Wright, 76 N. T. 262; S. C., 7 Abb. N. G. 299,—overruled.
Whether, since the married woman’s acts, the husband has the control and use of the property, during the joint lives, in real estate conveyed to him and his wife jointly, Query ?[3]
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Appeal from, a judgment rendered on a submission of controversy.
Ellen Bertles, individually and as administratrix of the estate of Hannah Day, united with James Nunan in the submission to the supreme court in the county of Erie, in the fourth department, of a case stating facts admitted (under Code Civ. Pro. § 1297) for the purpose of determining a question of title to land.
The land in question was conveyed August 1, 1868, to Cornelius Day, and Hannah his wife, the decedent who were married before 1847. The material part, of the deed were as follows: “This instrument, executed
this 1st day of August, 1868, by and between Nelson K. Hopkins and Louise H. Hopkins, of the city of Buffalo, county of Erie and State of New York, parties of the first part, and Cornelius Day and Hannah Day, his wife, of the same place, parties of the second part, Witnesseth, etc., that the said parties of the first part . . . have sold, and by these presents do grant and convey to the said parties of the second part, their heirs, and assigns, all that tract or parcel of land, situate,” etc.
The husband, grantee, died about August 4, 1877, leaving surviving him, (beside several heirs who were not parties to the submission) his wife, who was and thereafter remained in possession of the land till she
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died in April, 1879, leaving Ellen Bertles, the plaintiff herein, her sole heir. Ellen Bertles took out letters of administration, and the deceased wife, grantee, having left debts in excess of assets, caused the land to be sold under an order of the surrogate and the defendant Nunan became the purchaser; but refused to accept ■a conveyance and pay the price, on the ground that the wife was never seized of more than an undivided half. •
The Supreme Court without rendering any opinion overruled the objection and directed the purchaser to fulfill.
He appealed to this court.
Spencer Clinton (Marshall, Clinton & Wilson, attorneys), for defendant, appellant.
I. After quoting the acts, and relying on Meeker & Wright (below cited). The argument of the respondent reduced to its narrowest dimensions results in this syllogism: The married woman’s acts, so called, were intended to give new rights to married women, not to deprive them of any. To construe a deed to husband and wife as conveying the lands to them as tenants in common and not as tenants of the entirety, deprives her of the right of survivorship, and, as restricting her lights, is contrary to the true intent of those acts. Therefore, such a deed should be construed as vesting title in the husband and wife as tenants of the entirety. We do not concede the truth of the minor premise. It is conceded that husband and wife took as tenants of the entirety at common law, because they were regarded as one person. Vir etuxor sunt quasi única persona quia caro una et sangueis unus (Bracton, lib. 5, folio 416). This doctrine, founded upon the accepted inferiority of the woman, logically resulted in stripping the married woman of almost all property rights by. refus
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ing to recognize her when regarding the dual entity of husband and wife. To restore these rights the legislature passed the married woman’s acts of 1848-49 and 1860 and 1862, emancipating her. Her identity was separated from that of her husband, they became two persons, and she became again visible to the eye of the law. What right or benefit accrues to the wife as tenant of the entirety which she would not have as tenant in common ? 1. As tenant of the entirety she cannot separate her estate from her -husband’s. As tenant in common she can. 2. As tenant of the entirety her husband is entitled to the possession of the lands and to the income and profits of it. As tenant in common she would be entitled to her share. 3. As tenant of the entirety, should the estate be turned into money, the whole would belong to her husband or his creditors. As tenant in common her share would still belong to her (Farmers’ & Mechanics’ Bk. of Rochester v. Gregory, 49 Barb. 155 ). 4. Should the land be deeded to the husband and wife, and a third person, as tenants of the entirety, the husband- and wife would take as but one person. As tenants in common, they would take as two- persons (Barber v. Harris, 15 Wend. 615 ). It will be seen that these are not benefits, but are disabilities, and owe their existence to the common law rule, that husband and wife are one. Then the minor premise of the syllogism being false, the conclusion is false also.
II. No reason now exists for maintaining the common law rule, and it is inconsistent with the whole scheme of the law in relation to husband and wife as it now exists. That the reason for the rule has ceased is shown in this, that the identity of the wife is lost only when the husband and wife are named as grantees in the same deed. There is no inherent disability in her to hold land in common with her husband. If the
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land is conveyed to the husband in common with another person, and that person conveys his share to the wife, then husband and wife hold as tenants in common, and the wife may maintain partition (Moore v. Moore, 47 N. Y. 467 ). This court should ask for some stronger reason than the maintenance of a legal fiction that is out of harmony with our system of law, to justify it in placing upon the wife, even in a single instance, the onerous burden of the common law ; and ask for a mor# potent charm than the mere joining of her name with her husband’s in a deed, to cause her to lose her identify and disappear from view.
III. The cases decided by the courts of other states, which may be cited by counsel for respondent, while entitled to respect, are not, and should not be, regarded as controlling authorities upon the construction of our statute. We find cases decided in the States of Pennsylvania, Indiana, Mississippi, New Jersey and Maryland. In Pennsylvania we find, Bates v. Seeley, 46 Pa. St. 248 ; French v. Mehan, 56 Id. 286 ; Diver v. Diver, Id. 106. In Bates v. Seeley the habendum clause of the deed was : “To be held by the said parties of the second partin unity, under the decision of the supreme court of Pennsylvania, the case of Stackey v. Keefe, in 26 Pa. St. 397 .” The court said : “A deed thus made and accepted will admit of but one construction. It must have the effect the parties intended. If the married woman’s act be supposed capable of controlling the wife’s interest, the answer is, the estate did not accrue to the wife within the meaning of that act, and she had no such interest during life as could descend to her heirs, living her huband.” This case is hardly applicable to the point in question. In the case of French v. Mehan, the Pennsylvania statute was not alluded by court or counsel, but the common law rule was taken as law and used to protect the land in the wife from the husband’s debts. In Diver v.
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Diver, the point came up directly. The Pennsylvania statute reads as follows (Act of 1848, Pub. L. 536, § 6): “ 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.” The court held that this act did not affect the force.and' effect of the deed conveying the estate, but regulated its epjoyment after it is conveyed to her, to be, as her separate property is to be, enjoyed as property settled to her separate use. That the oneness of husband and wife was not destroyed. But it will be noted.that the Pennsylvania statute does not recognize the separation of husband and wife, as our statute does. It lacks the provision that the married woman may sell, convey and devise her property as if unmarried. Under the law of that' state her separate deed, even as to her separate property, would be absolutely void, unless in the one case of her husband being a lunatic. The legislature of that State has not gone so far as has our legislature in making husband and wife two persons, and the courts have followed what they regard as the intent of the legislature. And as bearing upon that intent, it will be noted that Pennsylvania has not passed any law equivalent to the provision of our statute, that where land is deeded to two or more they shall hold as tenants in common, unless otherwise expressly provided in the deed. The only provision we have found (Purdon Dig.“ tit. Joint Tenancy ”) bearing on that point is an act abolishing the right of survivor-ship in such cases, except as to trust estates. This statute, the above cases show, the courts have refused to apply to the case of husband and wife. The cases in the Indiana Reports are not authorities, as the statute expressly excepts the case of husband and wife from its provision. In Davis v. Clark, 26 Ind. 424 , and in
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Chandler v. Cheney, 37 Ind. 391 , the Indiana statute is given. Section 7 provides that where land is given to two or more, it shall vest in them as tenants in common. Section 8 provides: “ The preceding section shall not apply to mortgages, nor to conveyances in trust, nor when made to husband and wife, and every estate vested in executors or trustees, as such, shall be held by them in joint tenancy.” The case in Mississippi, McDuff v. Beauchamp, 50 Miss. 531 , relies upon the case of Goelet v. Gori, 31 Barb. 314 , as an authority, stating that the New York statute of that time (acts of 1848 and 1849) was much like that of Mississippi. If the statutes are alike, then that decision, like the decision in Goelet v. Gori, would have no application, as limiting the broader provisions of the married woman’s acts of 1860-1862. In the case of Washburn v. Burns 34 N. J. L. 18 , the question involved here was not in the case, as the court states in its opinion, at page 22. The case in Maryland, Marburgh v. Cole, 49 Md. 402 . holds that their statute authorizing the wife to acquire and hold property to her separate use does not apply to lands conveyed to them jointly. The Maryland statute (Code, art. 15, sec. 19 and 20), provides in substance, that the property, real and personal, belonging to a woman at the time of her marriage, and all property that she may acquire, shall be protected from the debts of her husband (§ 19); and that the property acquired or .owned according to the provisions of § 19 by a married woman, she shall hold for her separate use with full power of devising the same as fully as if she was a femme sole, or she may convey' the same by a joint deed with her husband (§ 20).
Here the statute recognizes the disability of the wife, and the merger of her identity in that of her husband. So far, then, as these decisions show, in no state where the statutes are as broad in their terms as ours, and so evidently express the intention of the legislature to do
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away with the legal fiction or the merger of the identity of the wife in that of the husband, has the question been decided adversely to the claim of the appellant.
IV. The question has not been sufficiently settled to conclude its examination. ' '
V. The question whether the acts of the legislature to be> passed upon are constitutional or not, although suggested in the court below, is not before this court. The property was conveyed to Cornelius Day and Hannah Day long after the passage of the married woman’s acts. The husband, by the marriage contract, acquires no vested rights in the future acquisitions of the wife, and the legislature can change them at will (Sleight v. Reed, 18 Barb. 159 -164; Blood n. Humphrey, 17 Id. 660.
Tracy C. Becker,for plaintiff, respondent.

On August 1, 1868, certain land which is the subject of this controversy was conveyed by deed to Cornelius Day and Hannah Day his wife and to their heirs and assigns ; and the sole question for our determination is whether the grantees took the land as tenants in common or whether each took and became seized of the entirety.

By the common law “when land was conveyed to husband and wife they did not take as tenants in common or as joint tenants, but each became seized of the entirety, per tout et non per my, and upon the death of either the whole survived to the other. The surviv- or took the estate, not by right of survivorship simply, but by virtue of the grant which vested, the entire estate in each grantee. During the joint lives the husband could for his own benefit, use, possess and control the land and take all the profits thereof, and he could mortgage and convey an estate to continue during the joint lives, but he could not make any disposition of the land that would prejudice the right of his wife in case she survived him.'

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This rule is based upon the unity of husband and wife, and is very ancient. It must have had its origin in the archaic period of our race, and it colored all the relations of husband and wife to each other, to the law and to society. In 1 Black. Com. 442, the learned author says : “ Upon this principle of a union of persons in husband and wife depends almost all the legal rights, duties and disabilities that either of them acquired by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason a man cannot grant any thing to his wife or enter into covenant with her; for the grant would be to suppose her separate existence, and to covenant with her would be only to covenant with himself. ” They were not allowed to give evidence against each other, mainly because of the union of person, for if they were admitted to be witnesses for each other they would contradict one maxim of the common law, nemo in propria causa testis esse debit; and if against each other they would contradict another maxim, nemo tenetur se ipsum■ acmsare.

As one of the consequences of the same rule, the husband was made responsible to society for his wife. He was liable for her torts and frauds, and in some cases for her crimes.

This and the other rules regulating the effect of marriage at common law were not designed to degrade and oppress the wife. Blackstone (1 Com. 445) says: “ Even the disabilities which the wife lies under are for the most ,part intended for her protection and benefit; so great a favorite is the female sex of the laws of England.”

The common-law rule as to the effect of a conveyance to husband and wife, continued in force, notwithstanding the Revised Statues which provided that ‘ ‘ every estate granted or devised to two or more persons in their own right shall be a tenancy in common unless

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expressly declared to be in joint tenanacy. ” 3 R. S. 7 ed. 2179, §44; Dias v. Glover, 1 Hoffman Ch. 71; Torrey v. Torrey, 14 N. Y. 430 ; Wright v. Saddler, 20 Id. 320. In the latter case Comstock, J., said: 66 It appears to be well settled that this statute does not apply to the conveyance of an estate to husband and wife. They are regarded in a law as one person.”

But the claim is made that the legislature in this State in the years 1848,1849, I860-and 1862, in reference to the rights and property of married women has changed the com mon-law rule so that now when land is conveyed to husband1 and wife they take as tenants in common as if unmarried. In construing these statutes the rule must be observed, and usually has been observed, that statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language used in the statutes absolutely requires.

Section 3 of chapter 200 of the laws of 1848, as amended by chapter 375 of the law, of 1849, provides that “ any married female may take by inheritance or by gift, grant, devise or bequest, from any person other than her husband and hold to her sole and separate use, and convey and devise real and personal, property or any interest or estate therein, and the rents, issues and profits thereof in the same manner and with like effect as if she were unmarried, and the same shall not be subjéct to the disposal of her husband or be liable for his debts. ” It is not the effect of this section, and plainly was not its purpose, to change the force and operation of a conveyance to a wife. It does not enlarge the estate which a wife would otherwise take in land conveyed to her, and whatever the effect of a conveyance to a husband and wife was, prior to that statute, so it remains. If the operation of such a conveyance was to convey the entire estate to each of the grantees, so that each became seized of the entirety, there is nothing in the force or effect of the language used to

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change the operation of such a deed so as to make the grantees tenants in common. The section gives the wife no greater right to receive conveyances than she had at common law,- but its sole purpose was to secure to her during coverture, what she did not have at common law, the use, benefit and control of her own real estate, and the right to convey and devise it as if she were unmarried.

So by section 1 of the act, chapter 90 of the laws of 1860, it is provided that, “ the property, both real and personal, which any married woman now owns, as her sole and separate property; that which comes to her by descent, devise, bequest, gift or grant; that which she acquires by her trade, business, labor or services, carried on or performed on her sole or separate account; that which a woman married in this State owns at the time of her marriage, and the rents, issues and profits of all such property, shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected and invested by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts,” and in section 8 of the act of 1860, as amended by the act, chapter 173 of the laws of 1863, it is provided that, ‘1 any married woman possessed of real estate as her separate property -may bargain, sell and convey such property, and enter into any contract in reference to the same, with the like effect in all respects as if she were unmarried.” There is great plausibility in the claim that these provisions in the acts of 1860 and 1863 have, reference only to the separate property of a wife which she owns separate from her husband, and tha t they have no reference whatever to land conveyed to husband and wife, in which by the common law' each became seized of the entirety. The language is not so strong and direct as that of the Revised Statutes, which provided that a grant to two or more

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persons shall create a tenancy in common, and which was yet held not to make husband and wife tenants in common. But it is not necessary now to determine that these provisions of law do not apply to lands conveyed to husband and wife, and we pass that question. It is sufficient now to hold that they do not limit or define what estate the husband and wife shall take in lands conveyed to them jointly. Their utmost effect is to enable the wife to control and convey whatever estate she gets by any conveyance made to her solely, or to her and others jointly.

The claim is made that the legislation referred to has destroyed the common-law unity of husband and wife, and made them substantially separate persons for all purposes. We are of the opinion that the statutes have not gone so far. The legislature did not intend to sweep away all the disabilities of married women depending upon the common-law fiction of a unity of p.ersons, as a brief reference to the statutes will show. The act of 1848 gave no express authority to a married woman to grant or dispose of her property. Such authority came by the act of 1849. The legislature clearly understood that the common-law unity of husband and wife, and the disabilities dependent thereon still remained, notwithstanding those acts, because in 1860, by the act of that year, it empowered a married woman to perform labor and to carry on business on her separate account, to enter into contracts in reference to her separate real estate, to sue and be sued in all matters having relation to her property, and to maintain actions for injuries to her person. Until 1867 (c.782). husbands retained their common-law right of survivor-ship to the personal property of their wives. It was not until chapter 887 of the laws of the same year that husband and wife could in civil actions be compelled to give evidence for or against "each other, and in 1876 (c. 182) for the first time they could be examined in crim

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inal proceedings as witnesses for each other ; and provision was first made in the Penal Code (§ 715) that they could in criminal proceedings be witnesses for and against each other.

From this course of legislation it is quite clear that the legislature did not understand that the common-law rule as to the unity of husband and wife had been abrogated by the acts of 1848, 1849 and 1860, and that whenever it intended an invasion of that rule, it made it by express enactment. Still more significant is the act, chapter 472 of the laws of 1880, which provides that “whenever husband and wife shall hold any lands or tenements as tenants in common, joint tenants or as tenants by entireties, they may make partition or division of the same between themselves,” by deeds duly executed under their hands and seals. Here the disability of husband and wife growing out of their unity of person, to convey to each other, is recognized,[5] as is also the estate by entireties created by a deed to them jointly.

So the common-law incidents of marriage are swept away only by express enactments. The ability of the wife to make contracts is limited. Her general engagements are absolutely void and she can bind herself by contract only as she is expressly authorized to do so by statute. A husband still has his common-law right of tenancy by the curtesy. Although section 7 of the act of 1860 authorizes a married woman to mantain an action against any person for an' injury to her person or character, yet we have held that she cannot maintain an action against her husband for such an injury ;[6] and so it was held, notwithstanding the acts of 1848,1849 and 1860, that the common-law disability of husband and wife, growing out of their unity of person to convey to each other, still existed. White v. Wager, 25 N. Y. 328 ;

† † See also 7 Abb. N. Y. Dig. Supp. to new ed. 602, n. 3.

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Winans v. Peebles, 32 Id. 423 ; Meeker v. Wright, 76 Id. 262, 270; S. C., 7 Abb. N. C. 299 ; reversing 11 Hun, 533 . It is believed also that the common-law rule as to the liability of the husband for the torts and crimes of his wife are still substantially in force.[5]

We fail therefore to find any reason for holding that the common-law rule as to the effect of a conveyance to husband and wife has been abrogated, and this conclusion is sustained by considerable authority. In Goelet v. Gori, 31 Barb. 314 , Sutherland, J., at special term held, that a lease for a term of years executed to husband and wife, was unaffected by the acts of 1848 and 1849, and that husband and wife by conveyance to them still took as tenants by the entirety, In Farmers’ and Mechanics’ National Bank of Rochester v. Gregory, 49 Barb. 155 , it was held at general term, that the statutes referred to had no relation to or effect upon real estate conveyed to husband and wife jointly, and that in the case of such a conveyance, notwithstanding those statutes, they take as tenants by the entirety. Johnson, J., commenced his opinion by saying: “To my mind it is a very clear proposition that our recent statutes for the better protection of the separate property of married women have no relation to or effect upon real estate conveyed to husband and wife jointly.” That decision was rendered in 1867, and the conveyance which was there the subject of consideration was executed in 1864. In Miller v. Miller, 9 Abb. Pr. N. S. 444, Murray, J., at special term in 1871, feeling bound by the decision last referred to, held that the common-law rule was applicable to a conveyance made to husband and wife in 1867.

In Freeman v. Barber, 3 Sup'm. Ct. (T. & C.) 574, the same rule was applied in 1874 by the supreme court in the third department. The opinion of the court was

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written by Miller, Ch. J., in which he stated that he regarded the law as settled in this State that in the case of a conveyance to husband and wife, they take-not as joint tenants or as tenants in common, but as tenants by entireties, notwithstanding the acts referred to. In Beach v. Hollister, 3 Hun, 519 , decided in 1875, a similar decision was made. Gilbert, J., .writing the opinion of the court, said : “ These statutes operate only upon property which is exclusively the wife’s, and were not intended to destroy the legal unity of husband and wife, or to change the rule of the common law governing the effect of conveyances to them jointly.” In Ward v. Krumm, 54 How. P.r. 95, decided in 1876, Van Vorst, J., at special term held, 'that under a deed executed to husband and wife in 1872 both became seized of the entirety, although the wife paid the entire consideration of the conveyance.

It is true that these decisions are not absolutely binding upon this court, but they settled the law in the supreme court. For twenty years after 1842 there was no decision or published opinion in this State in conflict with them, and they are, under the circumstances, entitled to great weight here. They undoubtedly lay down a rule which has been followed and observed by conveyances, and we have no doubt that property to the value of millions is now held under conveyances made in reliance upon the common-law rule as thus expounded. These decisions were never questioned in this State by any court until the decision in the case of Meeker v. Wright, which was rendered in this court in 1879. In that case the learned judge writing the opinion reached the conclusion, that the common-law rule governing conveyances to husband and wife had been abrogated by the modern legislation in this State. But that portion of the opinion was not concurred in by a majority of the judges. The views of that judge were very forcibly and ably expressed, and they have been

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carefully reconsidered. They do not convince us that the - conclusions he reached should be adopted by- this court.

That case is supposed to have unsettled the law somewhat in this State. In Feely v. Buckley, 28 Hun, 451 , it was held upon its authority, by a divided court, that tenancy by the entirety is abrogated by the.married women’s acts ; and upon the same -authority it is said a similar holding was made in Zorntlein y. Bram decided in the superior court of New York city in January of this year, by a divided court.[5] It is also said that in Forsyth v. McCall, decided in the fourth department in June, 1880, and in Meeker v. Wright after a new trial in the third department in April, 1882, it was decided that the common-law rule was not abrogated. 27 Alb. L. J. 199, And these decisions, together with the one which is now under review are all the decisions made in this State since the case of Meeker v. Wright was in this court, which have come to our attention.

Legislation similar to that which exists in this State, as to the rights and property of married women exist in many of the States of the Union, and the decisions are nearly uniform in all the other States where the question has arisen, that a conveyance to husband and wife has the common'law effect, notwithstanding such legislation. ’ Without citing all, we call attention to the following cases and authorities. Bates v. Seeley, 46 Pa. St. 248 ; French v. Mehan, 56 Id. 286 ; Diver v. Diver, Id. 106 ; Fisher v. Brown, 25 Mich. 350 ; McDuff v. Beauchamp, 50 Miss. 531 ;Washburn v. Burns, 34 N. J. L. 18 ; Chandler v. Cheney, 37 Ind. 391 ; Marburgh v. Cole 49 Md. 402 ; Bennett v. Child, 19 Wis. 362 ; Robinson v. Eagle, 29 Ark. 202 ; 1 Washburn on Real Prop. (3 ed.) 577 ; Schouler on Husband and Wife, §§ 397, 398; 1 Bishop on the Laws of Married Women, '438, §§ 613,

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etc. ; vol. 2, id. 284 , § 284. In the last section the learned author says: “ Under the late married women’s statutes, the effect of which is to prevent- any part of the wife’s interest in her lands passing to her husband, the rule of the common law, by force of which the two became tenants by the entirety of lands conveyed to both is not changed,” and he says : “ The reason for the doctrine, looking at the question in the light of legal principle is, that the statutes which preserved to married women their separate rights of property, do not have, or profess to have, any effect upon the capacity of the wife to take property, or the manner of her taking it, but when she does take it they simply preserve the right in her, to her separate use, forbidding it to pass in part or in full to her husband under the rules of the unwritten law. If then, land is conveyed to a husband and his wife, they take precisely as'at the common law—that is, as tenants by the entirety.” In Diver v. Diver, above cited, Strong, J., said: “But it is said the act of 1848, by destroying the legal unity of the husband and wife, has converted such an estate into a tenancy in common; that is, that such a deed conveys a different estate from that which the same deed would have created if made prior to the passage of the act. To this we cannot assent. It mistakes alike the letter and the spirit of the statute, imputing to it a purpose never intended. The design of the Legislature was single. It was not to destroy the oneness of husband and wife, but to protect the wife’s property, by removing it from under the dominion of the husband. To effect this object she was enabled to own, use, and enjoy her property,. if hers before marriage, as fully after marriage as before, and the act declared that if her property accrued to her after marriage, it should be owned, used and enjoyed by her, as her own separate property, exempt from liability for the debts and engagements of her husband. All this had in view the enjoyment of that which is
p. 301
hers, not the force and effect of the instrument by. which an estate may be granted to her. It has nothing to' do with the nature of estate. The act does not operate upon rights accruing to her until after they have accrued. It takes such rights of property as it finds there, and regulates the enjoyment; that is, the enjoyment of the estate after it had vested in the wife.”

At common law, where the estate was conveyed to husband and wife, as above stated, the husband had the control and use of the property during the joint lives. It is unnecessary now to determine whether, under the married woman’s acts in this State, the husband still has such a right in real estate conveyed to him and his wife jointly. It was said in some of the authorities cited that the statutes had changed that common-law rule, and that while husband and wife in conveyances to them jointly each took the entirety, yet that the land could not be sold for the husband’s debts, or the use and profits thereof during their joint lives be entirely appropriated by him. It is not important in this case to determine what the relation of the wife to the land in such a case now is during the life of her husband.

It is said that the reason upon, which the common-law rule under consideration was based, has ceased to exist, and hence that the rule should be held to disappear. It is impossible now to determine how the rule in the remote past obtained a footing, or' upon what reason it was based, and hence it is impossible now to say that the reason, whatever it was, has entirely ceased to exist.

There are many rules appertaining to the ownership of real property originating in the feudal ages, for the existence of which the reason does not now exist, or is not discernible, and yet on that account courts are not authorized to disregard them. They must remain until the Legislature abrogates or changes them, like statutes founded upon no reason or upon reasons that have ceased to operate.

p. 302
It was never, we believe, regarded as a mischief, that under a conveyance to husband and wife they should take as tenants by the entirety; and we have no reason to believe that it was within the contemplation of the Legislature to change the rule. Neither do we think that there is any public policy which requires that the statute should be so construed as to change the common-law rule. It was never considered that that rule abridged the rights of married women, but rather that it enlarged their rights, and improved their condition. It would be against the spirit of the statutes to cut down an estate of the wife by the entirety to an estate as tenant in common with her husband. If the rule is to be changed it should be changed by a plain act of the Legislature, applicable to future conveyances ; otherwise incalculable mischief may follow by unsettling and disturbing dispositions of property made upon the faith of the common-law rule. The courts certainly ought not to go faster than the Legislature in obliterating rules of law under which many generations have lived and flourished, and the best civilization of any age or country has grown up.

We are therefore of opinion that the judgment should be affirmed, with costs.[5]

All the judges concurred except Danforth, J. (who dissented upon the ground that the common-law doctrine was abrogated by the statutes which enabled a wife to acquire and hold separate estate, and for the reasons stated by him in Meeker v. Wright and Schultz v. Schultz), and Finch, J.

Judgment accordingly.[5]

* In Trebing d. Vetter (Brooklyn City Court, November, 1882), it was held,-1. That a married woman may be sued for her tort, without joining her husband (approving Gerald v. Quam, 10 Abb. N. C. 28 ). *303 2. That a plaintiff may sue in a name by which she is generally known, although she may have another. Demurrer to amended complaint. Marie Trebing sued Catherine Vetter for damages for slander. Defendant answered, among other things, that plaintiff was the wife of one Bonabeau. Plaintiff served an amended complaint which, beside the allegation of the tort with the usual connected averments, contained the following allegation: “III. That said plaintiff has abandoned the name of ‘Bonabeau,’ a gentleman to whom she was married as alleged in defendant’s answer, and that she has adopted her Christian name with his, said Bonabeau’s, consent in writing, and that he has left her some seven years hence.” Defendant demurred to the amended complaint. Henry Fuehrer, in support of the demurrer. John Pebterson, for plaintiff. McCue, J.—This case was heard on a demurrer interposed by the defendant as to the sufficiency of the complaint, on two grounds, viz.: First, that to maintain the action it was necessary to join the husband of the defendant, as a party defendant in’an action for the wife’s tort; and second, that plaintiff’s real name is “Marie Bonabeau,” and has no right to sue in any other name. The answer to the first ground of the demurrer is, that there is enough set forth in the complaint to establish a cause of action, and that the action was properly commenced against the defendant alone, without joining her husband as a party defendant. I concur in the view adopted in Gerald v. Quam, 10 Abb. N. C..28, as to the effect of section 450 of the Code of Civil Procedure, as being in harmony with the policy of the law. It seems unreasonable to subject the property of the husband to liability, in causes of action induced and arising from the separate acts of the wife herself, when the husband in no way joins, and as to which he cannot control the wife, as in the present case. As section 450 existed in 1877, the provisions were broad and general, and applied to all causes of action and proceedings affecting a married woman, whether plaintiff or defendant. The amendment of 1879 does not limit in terms the existing provision. It seems to have been the legislative sense that a married woman should be regarded as a single female; but that there might not be even a doubt suggested that her independence was not thorough and complete, the amendment was framed so that it should be understood that the joining of a husband with the wife was not only unnecessary but also improper. I see no other construction to be given to the section a's a whole. *304 The answer to the second ground of the demurrer is, that it is sufficient for the purposes of this action, that plaintiff has sued in the name by which she is generally known. The demurrer, therefore, is overruled, with liberty to the defendant to answer on payment of costs. In Haas v. Shaw (of which there is a memorandum in 9 Cincinnati L. Bulletin, 112), the court of Indiana in May, 1883, held that a married woman cannot bind herself by a contract of copartnership with her husband. Husband and wife were doing business as partners under their-name of Shaw & Co.; and plaintiff sued them for goods sold to them. The wife pleaded her coverture, and plaintiffs demurred to the answer; but the demurrer was overruled. The court concede that the Married Woman’s Acts are to be liberally construed; not, however, to be enlarged by a construction beyond the plain meaning of the language used; and they hold that under the Indiana Act which authorizes a married woman to carry on any trade or business, or perform any labor or service “ on her sole and separate account” and not otherwise, she can bvrd herself by her executory contracts in connection with her trade or business, on her sole and separate account, but not on any other account. There is nothing in the Act which authorizes her to bind herself by a contract of copartnership with her husband or any one else, or to carry on any trade or business, or perform any labor or service on the joint or copartnership account of herself and any other person. Similar laws • they say have been thus construed by the courts of Hew York and Massachusetts ( 3 Allen, 127 ; 4 Id. 412; 5 Id. 460; 52 Barb. 125 ; 57 Id. 222 ). In this State, after the general term in this district had held that a married woman may maintain an action against her husband for assault and battery, it was held at special term in deference to that ruling, that a partnership contract could be sustained; but the reversal of the former, decision in Schultz n. Schultz by the court of appeals, (though without rendering an opinion upon the law,) is regarded as having superseded the special term decision, which has not been reported; and the general opinion of the profession in the light of the views expressed by the court of appeals in the case in the text overruling Meeker v. Wright, is probably in harmony with this Indiana decision. Compare as to the liability of the husband for the wife’s torts an article on torts of married women not in the presence of her husband, in 16 Western Jurist, 425, 434. *305 In Muser v. Miller (N. Y. Super. Ct., Special Term, June, 1883), it was held that under Code Ovo. Pro. § 450, as to married women as parties, and § 453, as to the right to arrest,—a married woman may be arrested in an action against her for damages for defrauding the plaintiff of his property, in transactions had by her in her separate business, or the management of her separate property; and the opinion was expressed that it is now no longer necessary or proper to join the husband as defendant in an action against the wife for her personal tort even though such tort be wholly unconnected with her separate management or control of her business. Motion to vacate order of arrest. Frederick W. Muser and his partners sued Mrs. Julia Miller, a married woman, to recover the value of a quantity of laces alleged to have been stolen from plaintiffs by one of their employees, and to have been knowingly received by the defendant. An order of arrest having been granted against Mrs. Miller, her attorney moved to vacate it. Charles S. Spencer, for the motion. D. M. Porter, opposed. Freedman, J.—The plaintiffs have made out a prima facie case against the defendant Julia Miller which has not been overcome by the proofs adduced by her to such a degree that I can determine the merits. The testimony of James J. Madden, the thief, and Fannie Lewis, the receiver, is corroborated in several particulars, and especially by the circumstance that some" of the stolen goods have been shown beyond controversy to have been in the possession of the defendant. Her statement, by affidavit, that she paid a fair value for the goods she did purchase from the receiver, cannot overcome the ease made against her, because from the fact that she was a dealer in laces since 1877, and a purchaser from leading merchants in New York, and had even received goods'on consignment from the plaintiffs in this action the inference may be drawn that her statement is not ‘true, and that she knew at the time that she was getting the goods very much below their intrinsic as well as market value. Without going into particulars it is sufficient to say that much of what the defendant shows maybe true, and yet a prima facie case remains against her that she committed at least a willful injury to plaintiffs’ property within the meaning of section 553 of the Code of Civil Procedure. By the affirmance of the court of appeals ( 64 N. Y. 635 ) of Duncan v. Katen ( 6 Hun, 1 ) it is now settled that,' in such a case, a willful injury to property does not mean an injury merely to the thing itself, but an injury to the owner’s right in and to the thing. - The case at.bar, therefore, falls within that class of cases in which *306 the rule prevails that the court will not try the merits upon affidavits. This being so, the order of arrest cannot be vacated unless the defendant’s point is well taken, that because she is a married woman no order of arrest will lie against her under any circumstances. At common law a married woman could not be held to bail in an action founded upon her personal tort, though the husband might be held and might be compelled to give bail for both. Grah. Pr. 127; Anonymous, 1 Duer, 613 ; Schaus v. Putscher, 16 Abb. Pr. 353 , note. That the Code in force before the Code of Civil Procedure did not change the rule upon this point was distinctly held in Solomon v. Waas, 2 Hilt. 179. The necessity for holding the husband arose from the legal effect of the marriage relation. At common law the husband and wife by marriage became one person in law, that is, the very being or legal existence of the woman was suspended during the marriage, and incorporated or consolidated into that of the husband. But the necessity for such joinder was not, strictly speaking, because the husband was absolutely liable, but it grew out of the fact that a suit could not be maintained against a wife alone during coverture. Bishop on Mar. Women, § 254. Under the statutes of this State any married woman may take and hold real as well as personal property separate and apart from her husband, and enjoy the same, and the rents, issues and profits thereof, in the same manner as if she were a single female; and she has express authority to bargain, sell, assign and transfer her separate personal property, to carry on any trade or business, and perform any labor or services on her sole and separate account. The power thus conferred to carry on a trade or business includes the ability to make bargains and. contracts in relation to it in almost any mode known to the law, and in accordance with the practice of the commercial community, and such bargains and contracts have been held valid against her, notwithstanding her coverture, provided they were made in the course of her trade or business, and as an incident to it. Upon any such bargain or contract she could, since 1860, sue and be sued in the same manner as if she were sole, and the same may be said generally concerning all matters having relation to her sole and separate property. It was held, however, that these changes by statute did not alter the common law liability of the husband for the mere personal torts of the wife, but that the rule was changed only in cases of torts committed in the management and control of her separate property. Baum v. Mullen, 47 N. Y. 577 ; Kowing v. Manly, 49 N. Y. 192 . But even then the husband was held in some cases to be still a necessary party"to the action. *307 Thus, the rule as to the necessity of the joinder of the husband 'with the wife, in a case of tort committed by the wife, remained until the enactment of the Code of Civil Procedure. Section 450, as originally enacted, read: “In an action . . . a married woman appears, prosecutes, or defends, alone . . . as if she was single.” In his notes Mr. Throop states that that section was intended to sweep away all distinctions between a feme sole and feme covert, in respect to suing and being sued, and in Janinski v. Heidelberg ( 21 Hun, 439 ) it was held by the general term of the supreme court that the language used was comprehensive enough to do it. In 1879, section 450 was amended by adding, at the end thereof the further express provision that in any action or special proceeding affecting the separate property of a married woman, it is not necessary or proper to join her husband with her as a party. Since that amendment it was held in Gerald v. Quam ( 10 Abb. N. C. 28 ; S. C., as Fitzgerald v. Quann, 1 Civ. Pro. Reports, by McCarthy, 273), that it is now no longer necessary or proper to join the husband as a defendant in an action against the wife for her personal tort, though such tort was wholly unconnected with the wife’s separate estate or the management or control of her business, and that the reason of the rule in regard to the joinder had wholly ceased to exist. For the purpose of determining the motion before me, it'is not necessary to go quite so far. It is sufficient to hold that the reason of the rule in regard to the joinder has wholly ceased to exist, and the rule itself has been abrogated in all cases of torts as well as contracts, affecting the separate property of a married woman or connected with or arising from the management or control of her business. For it is conceded that the wrongful acts complained of in the case at bar were committed in the course of the defendant’s business as a dealer in laces. It follows, then, that, if to the extent stated the reason of the rule has ceased to exist and the rule itself has been abrogated, the exemption of a married woman from arrest, which sprang solely from the reason of the rule, must cease, whenever the rule ceases, in all cases in which the law expressly authorizes the arrest of females in general terms. In looking for such authority it will be found that section 553 of the Code of Civil Procedure gives the right of arrest during the pendency of the action against any woman in an action to recover damages for a willful injury to person, character or property. Having already shown that the case made out against the defendant is one which falls within the class of cases specified in section 553, and it appearing that the wrongful acts charged against the defendant were committed by her in the management of her business, she is not *308 entitled to have the order of arrest vacated for the sole reason that she is a married woman. From the examination so far made, it appears that no ground whatever exists for the vacation of the order. As to reducing the bail, I have also failed to discover any ground upon which, the defendant can be relieved. According to some of the testimony, the defendant had all the goods which were stolen from the plaintiffs, and if the jury should, under all the circumstances, find such testimony worthy of belief, their verdict will be for an amount which, with interest and costs, will exceed the amount of bail specified in the order. In view of such contingency the plaintiffs have a right to have the bail maintained as originally fixed. The only relief I can grant is to order an immediate trial of the issues by jury, on the ground of the actual imprisonment of the defendant. Motion to vacate order of arrest denied, with $10 costs. Order accordingly. The English courts, under a somewhat similar provision, appear to have come to the conclusion that the mere existence of the marital relation does not require the husband to be joined as a party with his wife in an action or proceeding, which, were she sole, might be brought by or against her. See Re G. Outwin’s Trusts, 48 Law Times R. N. S. 410; James v. Barrand, 31 Weekly Rep. 786; and see Abouloff v. Oppenheimer, (Q. B. Div.) 30 Id. 429; Re Fisher’s Trusts, Id. 56; Goods of Ayres, 31 Id. 660.

Footnotes

  1. * See Townshend v. Townshend, 1 Abb. N. C. 81 ; 13 Hun, 635 .
  2. † † Shultz v. Shultz, reversing without opinion, 14 Weekly Dig. 297.
  3. * See note at the end of this case.
  4. * There is a memorandum of this decision in 16 Weekly Dig. 458.

Cases cited