
    Charles M. Talman v. Lemuel B. Hawxhurst, and Richard W. Mott.
    By the just interpretation of the first section of the act of April 5, 1848, relative to the rights of married women, the separate property of a married woman is subject to her disposition, in the same manner and by the same means as if she were a feme-sole.
    
    
      Held, therefore, that a mortgage duly executed by a married woman, of a piano, which wbb her separate property, was valid, and entitled the mortgagee to recover against a purchaser in good faith from the husband, although had the husband been the owner, the mortgage as against'the purchaser would have been void.
    Judgment for plaintiff affirmed, except as to damages.
    (Before Campbell, Boswokth, and Hoffman, J. J.)
    Jan. 19, 1855.
    Appeal from a judgment for the plaintiff, entered on the report of a referee.
    The action was brought for the delivery of the possession of a piano and piano-stool, which the complainant alleged were wrongfully detained by the defendants, and were worth $200.
    The answer denied the allegations of the complaint, and the cause was referred by consent to Robert Emmett, Esq., in May, 1854.
    It came now before the court on his report, and on a case settled by him, containing exceptions to his ruling on various questions of evidence on the trial, and also to his decision.
    The report of the referee is in these words:
    I, Robert Emmet, to whom this action and all the issues therein were referred by an order of this court, made on the twelfth day of May, 1854, to hear and decide the same, do hereby find and report:
    That on the 30th day of November, 1852, at the City of Albany, Theodore S. "Wood, and Anna Maria Wood, his wife, then residing in that city, executed and delivered to William C. McHarg, of the said city, a chattel mortgage upon a pianoforte, and certain other articles of household furniture, then in possession- of said Wood, and his wife, and thatym the first of December, 1852, the said chattel mortgage was filed in the office of the clerk of the county of Albany, where the said Wood and wife then resided. That the said Theodore S. Wood, and Anna Maria Wood, were married, in September, 1849, and that at the time of such marriage, and previous thereto, the said Anna Maria Wood was the owner of said piano. The said mortgage was executed as security for the payment of a promissory note of the same date, made by the said Theodore S. Wood, for one hundred dollars, payable three months after date, with interest, to the order of the said William C. McHarg, and that the said note was given for a bond fide debt, then due, by the said Wood to the said McHarg.
    That on the second of December, 1852, the said William C. McHarg sold and assigned the said chattel mortgage, and all his interest therein, to the plaintiff, for a good and valuable consideration ; and that on the thirty-first of October, 1853, such assignment was filed in the office of the said clerk. That after the execution of the said mortgage and assignment, the said piano and other articles, pledged by the said mortgage, continued in possession of said Wood and wife, in Albany, until about the first of May, 1853, when the said piano, with a stool belonging thereto, 'was sent from Albany to the city of New York by the said Wood, or by his direction. That some time between the first of May and the first of August, 1853, the said piano and stool were by direction of said Wood taken to a music store, No. 295 Broadway, in the city of New York, where they remained for about three months, and that while said piano was at the said store,' repairs were done thereto by order of said Wood, the cost of which repairs was ten dollars.
    That a bill and receipt, of which the following is a copy, was given by said Wood to the defendants:
    
      “New Yoke, August 1st, 1853.
    “HAWXHURST & MOTT,
    ‘ “ Bought of THEODORE S. WOOD.
    “One piano, No. 448, maker, E. I. Elsley, Albany, $100.
    “Received payment,
    “ THEODORE S. WOOD.”
    That the said piano and stool were subsequently delivered to the said defendants from the music store, upon an order, of which the following is a copy:
    “New Yoke, August 1,1858.
    “Messrs. H. CHICKERING & CO.
    “Please deliver to Messrs. Hawxhurst & Mott, the piano left with your firm this day, by myself, upon paying the necessary charges and upon presentation of this order.
    “ THEODORE S. WOOD.
    “ Piano, No. 448,
    “ Makers, E. I. Illsley & Co.,
    “Albany.”
    And that the charge of ten dollars for repairs done to the said piano while at the said music store, was paid by said defendants.
    That shortly before the commencement of this action, the plaintiff made a demand for said piano to the defendants, and exhibited to them a certified copy of the said mortgage, and of the assignment thereof to him, and that the defendants admitted that they had possession of the said piano, but declined to deliver the same to plaintiff.
    That the value of the said piano when the defendants obtained possession thereof, (including ten dollars paid by them for the repairs done thereto,) was one hundred and ninety dollars; and that the rate generally charged and paid for the use of such pianos in the city of New York, is five dollars per month.
    And I do further find and report, that the said piano, and piano-stool belonging thereto, were the sole and separate property of Anna Maria Wood, wife of the said Theodore S. Wood, at the time when the said mortgage thereon was executed and delivered to said William C. McHarg, and that she had power to convey and did convey the same by said mortgage to the said McHarg.
    
      That tHe assignment of said mortgage.by the. said- McHargto the plaintiff was a.valid transfer thereof, and of all the rights of the said MeHarg nnder the same.to the plaintiff. .That the said mortgage was given for a good and valid consideration, and in good faith, and that the evidence of such consideration, and good faith is sufficient to rebut any presumption of fraud arising from, the fact that the possession of the mortgaged chattels was not changed upon or after the execution of the mortgage; and that the sale of the said piano and stool to the defendants by the said Theodore S. Wood, and the delivery thereof to them by his order, were void as against the rights of the plaintiff.
    I do therefore decide the issues in this action as follows: .
    1. That the said piano and stool mentioned in the complaint, were at the time of the commencement of this action, the property in law of the plaintiff, as. mortgagee thereof, and that he was then entitled to the possession thereof.
    2. That the defendants became possessed of the said piano and stool.
    3. That since the commencement of this action the defendants have wrongfully detained the said piano and stool from the plaintiff, and ..
    4. That the •value of said piano and stool, (exclusive of the repairs thereto, which have been paid for by the defendants,) is one hundred and eighty dollars..
    I do accordingly report as my decision of this action,, that the plaintiff is entitled to judgment for the delivery of said piano.and stool to Him by the defendants, and for damages for the detention thereof from.the 19th day of November, 185.3, (being the time of the commencement of this action,) at the rate of five, dollars per month, which damages at the date of my report amount to fifty dollars. .. .
    R. Emmet, Referee.
    New York, Sept. 20th, 1854.
    The exceptions taken on the trial are deemed unimportant and are therefore omitted. They were, in a measure, abandoned on the argument, and hence are not noticed in the opinion of the court.
    
      
      O. P.KirUand, for the appellants, the defendants,
    contended that the continued possession of the mortgagors after the mortgage became forfeited, rendered it fraudulent and void as against creditors and purchasers; That the assent of the wife to the acts of the husband ought to be presumed, and that to permit the plaintiff to recover would lead to great injustice and to great insecurity in the purchase of personal property. He cited 2 R. S. 195, § 5; 9 Wend. 198; 12 id. 279; 23 id. 653; 8 Barb. 102, and other cases.
    
      W. G. Brown, for plaintiff, contra,
    cited 12 Wend. 61; 1 Hill, 472; 17 Wend. 53.
   Hoffman, J.

We think that all the material facts are correctly found by the referee, and shall therefore confine our attention to the questions of law arising upon the facts, as he has found them.

1st. Independently of the question arising from Mrs. Wood’s ownership of the piano before her marriage, the case is substantially this: A mortgage is given at Albany on the 30th of November, 1852, and made valid there by a proper filing. It was to secure a note at three months; and the debt was due, therefore, about the 3d of March, 1854. In May, 1853, the piano was sent to New York, treated and repaired by direction of Wood, as his property, and sold as such to the defendants, in August, 1853. The testimony may not establish that Taiman positively consented to the removal of the piano. It does establish that he knew of the intended removal of the mortgagors to New York, and with their furniture.

That McHarg could not sustain this mortgage, which was never filed in New York, against creditors or bond fide purchasers, seems perfectly clear. (Griswold v. Shelden, 4 Comstock, 582, and cases cited.)

2d. The next and important question is, whether the defendants were bonâ fide purchasers. It is only as such that they can resist a claim founded upon the mortgage. Wood could not, and (apart from the question as to the wife’s position under the statute of 1848) she could not resist it. The defendants stand as purchasing from one who had the possession and control of the property, and they do not appear to have known of the wife’s rights in such property.

The difficulty is, that they purchased from Wood alone. If he had not a particle of title, how could they obtain a right as purchasers to contest the claim of the plaintiff. A title obtained from Chickering, with whom the piano was deposited, would have the same effect, and no greater.

The operation of the statute of 1848 upon the facts of this case, is either -to render every act of the wife as to this property precisely of the same legal force, as if she were sole, or to avoid all her acts from the beginning. In the former case the whole legal right of Mrs. Wood was gone on the Bd or 4th of March 1853, and the title perfected at law in the plaintiff. There remained only a right to redeem in equity. (Patchin v. Pierce, 12 Wendell, 61; Filler v. Acker, 1 Hill, 473.) She then could not have prevented the plaintiffs from taking possession; and it is justly observed in one of the cases, that a purchaser does not defeat a fraudulent transfer by a right derived from his assignor, but by force of the statute. The former had no such right himself, and could not delegate or transfer it.

The question then is, whether the acts of the wife in regard to this property were void from the beginning. The learned counsel for the defendants insists, that she was disabled to make any such mortgage, or any disposition of her 'property. In other words, that a common law disability continued in her to contract for the transfer of her interest, or to transfer it at all. We think the operation of the statute is precisely the reverse.

The marriage here took place in the fall of 1849, and the property was held by her at that time. The first section of the act of April 7th, 1848, governs the case. “ The real and.personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents, issues, and profits thereof, shall not be subject to the disposal of her husband, nor be liable for his debts; and shall continue her sole and separate property, as if she were a single female."

It seems impossible to avoid the conclusion, that under this language, the wife has the identical ownership and powers of disposition, as if she had remained .single. She is protected against her husband’s sole disposition of the property, or any claim of his creditors; but her own power seems unqualified and absolute. So it appears to have been regarded in Van Sickle v. Van Sickle, 8 Howard, 267.

The analogy of the provision to the old equity doctrine in relation to a married woman having separate property, strengthens this view. She was a single woman as to such property, except as restricted by the instrument; and she could bind it by any papers showing an intention to do so. Indeed, the North American Coal Co. v. Dyett, carried it so far, as to make the separate estate liable for coal furnished to it, (being a manufactory,) on the order of an agent. Indeed the case goes far to establish a liability without specific charges, but for debts generally. (7 Paige, 12-20; Wend. 370.)

In this view of the case, the right of the plaintiff as against both wife and husband had become perfect as to title, and only subject to an equity to redeem. It had become as to mere strangers absolutely perfect; and to resist it, a bonâ fide purchase must be shown from the owner. That could not be done, for the husband had no title.

It may be that the actual consent of the wife to a sale by the husband would have been sufficient, without her uniting in an actual transfer. But there is nothing in the case” to show this. The result which the referee has arrived at we consider right.

Another question is, as to the damages allowed by the referee. He finds the value of the piano to be $180; and holds that the plaintiffs are entitled to judgment for that and for $50 damages,. for the detention from the commencement of the action at the rate of $5 a month, to the report. We are satisfied the plaintiffs had no right to such damages.

Judgment affirmed, except as to the allowance of $50 for damages, which is to be deducted, without costs of the appeal to either party.  