
    Pamelia Pangburn, Resp’t, v. John Crowner, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    1. Conversion—Title to personal property.
    In an action for conversion of cows which, had been driven off plaintiff’s premises in the night by her husband, from whom defendant claimed to have bought them, it appeared that plaintiff had supported the family and had earned money which she kept with her husband’s consent, and with which she purchased said cows; that she had purchased feed for them on her own credit, and had permission of the owner to occupy the premises where they lived. Held, sufficient to overcome the presumption that the cows belonged to the husband and to show title in her.
    3. Husband and wife—Gifts.
    An executed gift from a husband to a wife is perfectly good, except it is made in fraud of creditors.
    
      Appeal by the defendant from a judgment entered in Allegany county, on the report of a referee.
    Wm. Spargur, for app’ltBlackman & Hall, for resp’t
   Dwight, P. J.

The action was trover for a number of cows; They were driven off in the night by the plaintiff’s husband from premises occupied by her, and neither husband nor cows ever came back. The cows were found the next day in the possession of the defendant, who claimed to have bought them.from the husband and refused to return them on demand. The only question was-of the title to the cows at the time they were driven away, and the finding of the referee in that respect was perfectly well supported by the evidence. The plaintiff had been married to Pang-burn for upwards of forty years, and during that time had evidently been at the head of the household.' Besides taking care of her family she had done a good deal of work for others, and-earned some money which, with the consent of her husband, she-kept and used as her own. So too, she had for her own the money for the butter which she made. Most of this money, from both sources mentioned, she spent for family uses, but some of it she-invested from time to time in the cows which are the subject of this action. She generally bought the feed for the cows, and when the money was not paid for it, it was charged to her. It was to-her that permission was given by one Dyke to occupy the little place where she and her husband had been living for several years, before the cows were taken. The right óf possession of the premises was in litigation during that time between Dyke and other claimants, and the latter gave to the plaintiff’s husband a lease-two or three years before this action was brought. The lease was probably given for the purposes of the ejectment action, and that, has since been determined against the lessors. What was .the cause of Pangburn’s desertion of his wife does not appear; it may perhaps be conjectured from a statement in her testimony to the effect that he never made her any trouble when he was sober.

The facts stated appear by the testimony of the plaintiff, corroborated in important particulars by disinterested witnesses. Her testimony is substantially uncontradicted except by that of her husband, which is seriously discredited by impeachment, and by proof of repeated statements to the contrary, on oath and otherwise. The effect of the testimony, as a whole, is clearly to overcome the presumption that the property in question belonged to the husband. If, or so far as, any part of her property or of the money with which it was purchased was to be considered as a gift from the husband, the fact would not affect the question of the plaintiff’s right. An executed gift from a husband to a wife-is perfectly good, except it is made in fraud of creditors; and there is no such question in this case. Neither is there any question here of any right in the defendant as a bona fide purchaser for value. He sent a man to help Pangburn drive away the cows-in the night, and he took them, ostensibly, on an outlawed debt, of Pangburn’s; though it is probable some other compensation, was made to the latter for his agency in the transaction.

We have no doubt of the correctness of the findings of the referee both as to the facts and the law of this case.The judgment must be affirmed.

Macomber and Lewis, JJ., concur.  