
    SARAH H. HAZEWELL, Plaintiff, v. GERSHON H. COURSEN, Defendant.
    I. Husband and Wife.
    1. Property (personal) of the wife, when, it becomes property of thehusband, cmd when not.
    
    
      a. Personal property of the wife reduced to actual possession by the husband prior to the Married Women’s Acts of 1848 and 1849, becomes his property.
    
      b. Personal property, e. g., money acquired by the wife after these acts, is her separate property.
    1. Husband Debtor to Wife.
    (a.) If such money goes into the hands of the husband, he becomes her debtor, unless a gift of it by her to him is shown,
    (d.) So AX SO he may recognize as a debt any money received by him from his wife, and liquidate such indebtedness by a transfer of property belonging to him, when the right of creditors is not concerned.
    1. As to what the right of creditors may be is not considered or decided.
    
    3. Contracts and Transfers.
    I. Where a husband takes a contract for the sale of lands in his own name, but for the benefit of his wife, the cash payments required by the contract being made with money of the wife, either by her directly, or indirectly through her husband, the contract becomes hers in equity.
    3. Transfer by Husband.
    
      a. Even if the husband advanced the payments from his own resources, yet he may recognize as a debt any money received by him from his wife, and a 1/i'ansfer of the contract in liquidation of such indebtedness will be valid.
    
    
      Before Monell, Curtis, and Sedgwick, JJ.
    
      Decided December 31, 1873.
    1. As to whether any different doctrine would obtain where the rights of creditors are concerned, is not considered or determined.
    II. Trusts, Statute of.—What it does not apply to.—What is valid under it.—Divesting Trust.
    1. What it does not apply to.
    
    Choses in action. It does not apply to them.
    
      2. What is valid under it.
    
    Where A. assigns an executory contract to B. by assignment absolute on its face, and the oral evidence shows that A. was indebted to C., and that the assignment to B. was made for his benefit, and that B. had no interest in the contract, held that B. took as trustee, and held the contract in trust for C., and that the trust was valid.
    3. Divesting trust, what does not.
    
    An assignment of the contract in blank by B., with the consent of C., and the delivery of said assignment to A. for the purpose of surrendering it to the party who contracted to sell the lands on receiving back from him the moneys that had been paid to him on it, does not divest the trust.
    III. Conversion.—Executory Contract for the Sale and Purchase of Land. Such a Contract is the subject of conversion.
    IV. Parties Plaintiff.—Trustees and Cestui-que Trust.
    C. is the proper party plaintiff, and not B.
    Exceptions "by plaintiff ordered to "be heard at General Term.
    The action was to recover damages for the conversion of a contract for the sale of lands in the State of Pennsylvania.
    The contract was between Joseph T. Fellows and George ft. ffazewell, the plaintiff’s husband, for the sale of the land by Fellows to Hazewell. A payment of $7,000 to $8,000 had been made on the contract.
    In May, 1861, Hazewell executed and delivered a written assignment of the contract to George C. Genet. This assignment was absolute and unconditional on its face.
    
      In August of the same year, Genet executed an assignment in blank, and delivered it to Hazewell. Hazewell filled the blank with the name of the defendant, and delivered the assignment and contract to him. This assignment was also absolute on its face.
    The evidence tended to show that Hazewell took the contract for the benefit of his wife, the plaintiff; that she furnished the money with which the cash payment was made, and was really the beneficial owner of the contract.
    The evidence also tended to show that Genet was the agent of the plaintiff, and on her behalf, and for her benefit, took the assignment of the contract; and, although he took it in his own name, it was in trust for her, he having no interest in it. The assignment thus made was to secure to her the contract for the money she had advanced upon it, and to carry out the intent with which her husband entered into it.
    There was also evidence that the assignment to the defendant was intended as a security for a loan of money.
    Hazewell and the plaintiff were married in 1847, and the evidence tended to show that her property, at that time consisting of about $5,000, came into the possession of her husband, with her consent, but leaving it, perhaps, in doubt whether it was given to him by her, or was a taking possession by him under his marital right. But there was further evidence substantially to the effect that Hazewell afterwards treated as a debt all moneys he had received from his wife.
    The plaintiff proved a tender of the amount of the loan and interest, and a demand of the contract and an unqualified refusal of the defendant to return it.
    The defendant moved to dismiss the complaint on the following grounds :
    1st. That the evidence is manifestly false ; that it is clear that the whole story is a fabrication.
    
      2d. That the testimony, if true, does not make out the' averments in the complaint.
    3d. That if it "be all within the complaint, still it is a parol trust, and a parol trust that cannot "be enforced within any court of law or equity.
    4th. That the present plaintiff has no legal claim to the cause of action set up in the complaint.
    Plaintiff’s counsel thereupon requested the court for permission to go to the jury on the question of fact, whether the contract in suit belongs really to plaintiff or not %
    
    Which request the court denied, and plaintiff’s counsel duly excepted.
    Plaintiff’s counsel also asked the court for leave to go to the jury on the question, whether the plaintiff thus owning the contract, it was not given to Coursen upon a loan to be made and which he failed to fulfil ?
    Which request the court denied, and the plaintiff’s counsel duly excepted.
    Plaintiff’s counsel also asked leave to go to the jury on the question, whether the tender has not been duly made in reference to the cause of action so as to entitle the plaintiff to maintain the action %
    
    Which request was also denied, and plaintiff’s counsel duly excepted.
    Plaintiff’s counsel asked leave to go to the jury upon the questions of fact in the case raised by the pleadings, or the proof, or both.
    Which request was also denied, and plaintiff’s counsel duly excepted.
    The court thereupon granted the motion and dismissed the complaint, and the plaintiff excepted. The court ordered the exceptions to be heard at General Term.
    
      George C. Genet, attorney, and William F. Shepard, of counsel for the plaintiff, urged:
    
      1st. If any trust is involved in this matter, it is a trust of personality which is not within the statute of uses and trusts, and therefore capable of being created for any purpose not forbidden by law (Kane v. Gott, 24 Wend. 641; Buchlin v. Buchlin, 1 Abb. N. Y. R. 249).
    It was a trust in personal property with which the statute of uses and trusts in lands has nothing to do •(Savage v. Burnham, 17 N. Y. R. 561; Bunn v. Vaughan, 1 Abb. N. Y. R. 256).
    It was a trust in personality because the contract was a chose in action, and the property is out of the State (Foote v. Bryant, 47 N. Y. R. 544).
    This last case seems to cover every point involved in this case, under this proposition even to the fact of plaintiff being a married woman, and the facts occurring prior to the Married Woman’s Act of 1848. “It is “competent,” the court says, “for a husband, except “as against creditors, to recognize the equities of the ■“wife and to secure it upon property.”
    2d. That the present plaintiff has a legal claim to the cause of action set up in the complaint.
    Whether plaintiff obtained the contract with her separate money, or as a gift from her husband' through the medium of a trustee, or as a gift from Geo. C. Genet, is wholly immaterial to defendant, for in either aspect of the case, when Genet executed the assignment of the contract, leaving the assignee’s name blank, at the request and on the demand of plaintiff, and delivered it so executed to her messenger or agent, it was as good and effectual a transfer and delivery of the contract to plaintiff as if her name had been inserted. From that moment it passed from Genet to plaintiff, who thus became its lawful owner, her previous title being equitable. It was a good assignment, and passed all Genet’s interest, because the holder could write in the name of the assignee, as Coursen did, and acquire the property without the consent of Genet, as he did.
    
      Although not acquired with her separate property, it could "be made her separate property ‘6 "by a clear irrevo1 ‘ cable gift by her husband either to some person as “trustee, or by some' clear and distinct act of his (McLean v. Louglands, 5 Ves. 79 ; Ryder y. Hulse, 34 N. Y. R. 379, 380).
    The assignment of the contract by Hazewell to Genet was a distinct affirmative act of his divesting himself of the pfoperty to the wife’s separate use, and was also a clear irrevocable gift to a trustee if it was not her own separate property before.
    It was not necessary to recite the trust in the deed or assignment. It was sufficient that it was proved on the trial by parol, even had it related to real estate in this State (Wood v. Cox, 2 M. & Cr. 684; Foote y. Bryant, 47 N. Y. R. 544 ; Britton v. Lorenz, 45 N. Y. R. 51 ; Day v. Roth, 18 N. Y. R. 448).
    The plaintiff being the legal and equitable owner of the contract, and the real party in interest was the proper party to bring the suit (Code, §§ 111, 113).
    If Genet had any .right in the contract after he delivered the assignment of it, his right only continued until plaintiff -elected to- bring the suit in her own name (Minturn v. Main, 7 N. Y. R. 234 ; Morgan v. Reid, 7 Abb. P. R. 315; Rowland v. Phalen, 1 Bosw. R. 43; Gunnell v. Buchavan, 1 Daly, 538).
    3d. The defendant received the contract as pledgee for a loan of money. Upon tender of the amount his title was divested, and he was bound to return the pledge as a tenant is bound to surrender to his landlord at the expiration of the term (Edwards v. Farm F. Ins. Co., 31 Wend. 483).
    After the tender plaintiff was entitled to bring suit to reclaim the pledge and for a specific return, which she did. She was forced by some very unusual incidents in practice to amend her complaint and ask for damages.
    
      When plaintiff rested her case on the trial, she was entitled to rely upon the tender and refusal as a conversion and to recover damages. If no conversion had been proved on the trial, still plaintiff was entitled to a decree for a specific return, and the complaint should not in any point of view have been dismissed (Genet v. Howland, 45 Barb. 560).
    A cestuique trust can certainly maintain an action for the conversion of or damage to property held in trust for her.
    
      Field & Shearman, attorneys, and of counsel for defendant urged:
    
      First. The contract was the property of Hazewell, and not of the plaintiff, his wife.
    1. The evidence shows this to be the fact.
    2. The marriage took place in 1847. The plaintiff’s property, being money and stocks, was reduced to possession by the husband; the stocks sold mixed with his funds, and always dealt with as his.
    Under the common law this property became the husband’s (Crolius v. Roqualina, 3 Abb. 114; Westervelt v. Gregg, 12 N. Y. 202).
    3. The first Married Wornan’s Act, passed in Pennsylvania, was in 1848. It does not differ materially from our statute of the same year. This act did not affect the vested rights of the husband, or enable her to do business. All the wife’s property, whether previously acquired or gained in business, becomes his (Lancaster Co. Bank v. Stauffer, 10 Barr, 398 : Lefever v. Witmer, 10 Barr, 505; Boose’s Appeal, 6 Harris, 392 ; Peck v. Ward, 6 Harris, 509 ; Stehman v. Huber, 9 Harris, 260 ; Burson’s Appeal, 10 Harris, 164; Bachman v. Chrisman, 11 Harris, 162; Rhads v. Gordon, 2 Wright, 277; Robinson & Co. v. Wallace, 3 Wright, 129).
    
      There was no subsequent legislation on the subject in Pennsylvania until 1861.
    4. The first Married Woman’s Act of New York (Laws of 1848, p. 307) applied to personal property then belonging to married women. Even if it had not been unconstitutional, it would not have applied to this case, since the marriage having taken place before the passage of the law, this personal property then belonged to the husband. The acts of 1849, of 1860 and of 1862, do not alter, so far as this case is concerned, the first act.
    Mrs. Hazewell had no separate property on the 7th April, 1848, and the act of that date and those subsequently passed do not apply to her (Ryder v. Hulse, 33 Barb. 264 ; Freeman v. Osser, 5 Duer, 476 ; Sherman v. Elder, 1 Hilton, 476).
    
      Second. Whoever was the owner of the contract, the legal title was in Genet, and he only could bring a suit like the one in question,
    1. The assignment was to Genet, and was made without any “consideration moving” from the plaintiff.
    2. He was the legal holder of the contract, and was the only one entitled to bring the action under the Revised Statutes.
    3. A trust of the sort claimed cannot be created by parol so as to be enforced as between -the purchaser of the contract and the trustee.
    4. These rules have not been changed by sections 111, 113 of the Code (William v. Brown, 2 Keyes, 486 ; Fulton v. Fulton, 48 Barb. 581; Cummings v. Morris, 3 Bos. 560 ; Cummings v. Morris, 25 N. Y. 625).
   By the Court.—Monell, J.

The testimony furnished by the plaintiff, if true, established that the contract with Fellows belonged to her. The money, paid on it was her property, and the assignment to Genet was for her Benefit, and was intended to vest her with the title. No express trust was created in writing, "but a trust "by parol to the effect that Genet should hold the contract for her "benefit. Such testimony also established that the assignment of the contract by Genet in blank was to enable plaintiff’s husband, with her consent, to transfer it absolutely, or hypothecate it as security for a loan; and that he did cause it to be assigned to the defendant as such security.

The evidence of the fender demand and refusal was sufficient.

The first two grounds of the motion to dismiss called upon the court to determine as a matter of law, not that the evidence was insufficient, but that it was not true. That was so clearly a question for the jury, that it is not to be presumed the decision of the court was put upon that ground.

The facts, however, present two questions of law, upon one or both of which, doubtless, the decision rested.

First. Whether the cash payments on the contract were made with the plaintiff’s money.

Any property (personal) of the plaintiff, which had been reduced to actual possession by her husband, prior to the Married Woman’s Acts of 1848-9, became his property absolutely. Whatever may have become of the four or five thousand dollars, the separate property of the plaintiff at her marriage, it appears, primeo facie, at least, that as late as 1854 and 1857, she acquired other money, which went into her husband’s hands creating him her debtor. There is no evidence that she intended it as a gift, and the law would create the relation of debtor and creditor.

Whether, therefore, the money paid on the Fellows contract was paid directly by the plaintiff, or indirectly through her husband, if such was the case, the contract became hers, at least in equity.

But even if the husband advanced the payments from his own. resources, it was competent for him, at anytime, to recognize as a debt any money he had previously received from his wife, and liquidate it by the transfer of the contract (Foote v. Bryant, 47 N. Y. R. 544).

'These questions might be affected if raised by creditors of the husband, but as between these parties, there was a good and sufficient consideration for the transfer to Genet, and such transfer gave her the beneficial interest in the contract, if the circumstances under which Genet took it were such as to create a valid trust in her favor, which can be enforced in this action.

Second. Was the trust valid %

The trust had respect to personal property. The contract, being executory, was a mere chose in action, and the trust could be'by parol with which the statute of uses and trusts has nothing to do (Kane v. Gott, 24 Wend. 641 ; Savage v. Burnham, 17 N. Y. R. 561; Bunn v. Vaughan, 5 Abb. P. N. S. 269). But even if it was otherwise, it was, nevertheless, a trust not affected by the statute. In Foote v. Bryant (ubi sup.) the court, say, “the statute does not preclude a party from establishing any implied or resulting trust known or recognized by the common law. They arise usually from the acts or relation of the parties to the property involved, and not upon parol agreements.” “ The transactions out of which a trust of this character arises may be proved by parol, but the trust itself must rest upon the actsnor situation of the parties as proved, and not merely upon their declarations. The statute embraces only trusts which are created or declared by the parties.”

Under the authority of that case, without going farther, it seems to me clear that the trust proven in this case was valid. The1' nature of it was this: the plaintiff’ s husband held a contract for the sale of lands. He says the cash payments were made with her money, and that he took the contract for her benefit. But it is quite immaterial whether it was her money or his money ; or whether he took the contract originally for her benefit. The evidence was sufficient primé facie, ¡. that he was indebted to the plaintiff, and that he made ; the assignment to Genet for her. Genet, therefore, took as trustee, and held the contract in trust for her.

The subsequent transactions did not divest the trust, or change the relations of any of the parties. The assignment executed by Genet in blank was with the plaintiff’s consent; and Hazewell, her husband, doubtless could have made an unconditional, absolute transfer of the contract to the defendant. But the evidence shows that he assigned and pledged it as security for a loan.

As the case stood when the motion to dismiss was made, the plaintiff had made a prima fade case. She was the real party in interest; the consideration for the transfer of the contract moved from her; the trust was valid; the contract was the subject of conversion, and the proof of the conversion was sufficient.

It was error, therefore, to dismiss the complaint.

The exceptions should be sustained, the order dismissing the complaint vacated, and a new trial granted, with costs to the plaintiff to abide the event.

Curtis and Sedgwick, JJ., concurred.  