
    STEPHEN H. GRIFFIN et al., Respondents, v. WM. BANKS et al., Appellants.
    
      Husband and Wife—Deed of Separation—Consideration—Gift—Trustee— Credit to Wife—Liability of Husband.
    
    A gift by the husband to a trustee to hold for the use of his wife, accompanied by a transfer of the possession, is operative to vest the title in the trustee irrespective of any consideration therefor.
    Where credit is given solely to the wife upon a sale to her, the husband is not liable, even though they live together as husband and wife.
    
      A. & M. S. Thompson for Respondents.
    
      J. II. Reynolds for Appellants.
   Grover, J.

The only question in this case is, whether the Appellants acquired a title to the property in question, by virtue of the assignment thereof to them by the wife, in trust for her creditors, which is good as against the title of the Respondents acquired by virtue of an assignment subsequently made to them by the husband, for the benefit of his creditors.

That the relation of husband and wife between Bruce McKin ■ ney and Mary B. McKinney was created by their marriage in 1842, and continued to exist down to the time of trial, clearly appears from the facts found by the Court below, which findings were warranted by the evidence.

All the personal property of his wife, in possession at the time of this marriage, became at once, by virtue thereof, vested in the husband (2 Kent’s Com. .130 ; Clancy’s Rights of Women, 3).

He continued the owner of the property used by them in the business down to their separation in 1844. (See authorities supra.)

The rights and powers of Mrs. McKinney, and consequently the title of the Defendants, depend upon the effect of the deed of separation then executed between McKinney and wife, and George Langdon, and the subsequent acts of the parties to this instrument.

This deed, after reciting differences between the parties, Me-Kinney and wife, and that they had agreed to live separately, provides that all the goods in the two stores then occupied by them, and all the household furniture, and the leases of the stores and dwelling, and the debts that had accrued in the business theretofore done, should thereafter belong to the said Mary, for her sole and separate use, as if she were sole; that the said Bruce should receive, out of the stock and profits of the business, the .sum of two thousand dollars, which he acknowledged the receipt of from said Mary; in consideration of which, said Bruce ■transferred to said Langdon all his right to said property for the use of said Mary, and providing further, that said Mary should .¡Day all the debts that had accrued in said business; that they should thereafter live separately; that said Mary might thereafter carry on such trade or business as she might choose, the same as if sole, without any interference of said Bruce; that the said Mary should absolutely enjoy and dispose of any property she then had, or might thereafter acquire, the same as if sole and unmarried.

It is insisted by the counsel for the Respondents that there was no consideration received by Bruce McKinney for the deed of separation, inasmuch as the entire stock of goods and profits of the business were his, and that, consequently, the two thousand dollars received by him therefrom was but the taking of a part of what was already his own.

In this the counsel is entirely correct; but the further deduction therefrom, that for want of consideration the entire deed is a nullity as to Bruce McKinney, is not quite so clear.

, Langdon is a party to the deed, and although not named as trustee for the wife, the transfer of the property to him, for her use, shows that he was a party in that character.

Possession of the property was given to the wife, or Langdon, ■as trustee, at the time of the execution of the deed, and Bruce McKinney never had anything further to do with it.

If possession was given to the wife, she held it under Langdon, to whom it was transferred by the deed. This, then, although without consideration to Bruce McKinney, was operative as n gift by him to the trustee for. the use of the wife, accompanied by delivery of possession, with that intent, and thus effectual as a gift, irrespective of a consideration therefor. Bruce McKinney thus divested himself of all title to the property then' on hand, which became vested in Langdon, as trustee of the wife.

It is insisted by the counsel that deeds or agreements of separation between husband and wife will not be enforced, either at law or in equity, unless there be a consideration therefor.

This position is correct (Beach v. Beach, 2 Hill, 260).

But this is not enforcing the. agreement. It merely applies the legal rules governing gifts of chattels, accompanied by delivery, to the agreement and acts of the parties. This gift to Langdon, in trust for the wife, would have been valid against Bruce Me-Kinney and his representatives, without any agreement for separation.

Existing creditors of Bruce might have set aside the transfer as fraudulent as to- them. There are no such creditors in this case.

The position of the Respondents is no better than that of Me-Kinney, were he a party (Van Heusen v. Radcliff, 17 N. Y. 580).

The property in question was acquired by the wife, in business carried on exclusively by her, in her own name, with the proceeds of the property thus transferred to Langdon, and by purchases upon her own credit, and in her own name, without any. interference at all of the husband, who lived separate and apart from her, except occasional visits upon his return to JSTew York from his voyages at sea, and without any of his means or credit being used in the business.

The counsel for the Respondents insists that the husband having permitted the wife to' carry on this business, and make purchases upon credit, became liable as debtor for such ¡purchases, and cites in support of this position Grates v. Brower, 5 Selden, 205, and cases -there cited.

A close examination of these cases will show that they are •only applicable to cases where the facts warrant the presumption of an authority from the husband to the wife, to make the purchases as agent for him. So'far from there being, any such presumption in this case, it-is wholly repelled by the facts showing an entire want of authority by the wife to. use the .credit-of the. husband.

The rule is; that when credit is given solely to. the wife,.upon a sale to her, the husband is not liable, although they live together,.- and he sees- her in possession of the goods thus bought . (Story on Contracts, 4th ed. § 103-; 2 Bright onlíusb. and Wife, 17,18; Qoulding v. Davidson, 26 N. Y. 604). In Knapp v. Smith (27 N. Y. 277), it was held by this Court, that' since ;the. statutes of 1848 and 1849," enlarging the rights-of marriéd wottien," and. before the act of 1860, a married- woman .might acquire property, by purchase-upon credit, to her own usé, and - that the; husband acquired no title to such property, notwithstanding the inability of the wife to make-a contract binding 'herself to- -pay; for such property; ■ ■ - -

The separation in this case was in 1844, and the business-, was carried on by the wife until 1854, when she made the assignment to the" Appellants, • and- delivered--the property-'.in-"question -to them. - - - ’ •

There is no express finding as to-when-the-purchases; of-, the property on hand in 1854 were made, but they must -have -been after the passage of the act of 1848, as the Statute of .Limitations would have been a bar upon all contracts made before that time, when the assignment was made.

The conclusion is, that Bruce McKinney had no title to the property in question, and that, consequently, none was acquired by the Respondents under his assignment to them.

But if wrong in the above reasoning, how then stands the case ? If Bruce McKinney had title to, or any interest in the property, he had expressly authorized bis wife by the deed to dispose of the same as she chose, the same as if sole and unmarried. Clearly, he could not- annul this power, after execution by the wife, conferring interests upon third persons, to the prejudice of such persons.

It is said there were no such interests, for the reason that, the wife being incapable of binding herself to pay for goods purchased by her upon credit, there were no debts, and, consequently, no creditors for whom the Appellants are trustees.

This, in one sense, is true; but when the wife has actually-paid' for gbods so' purchased, the money so paid could not be recovered back by her; and where, as in this case, she has provided for such payment by transferring goods for that purpose, Over which she had the absolute power of disposition against all the world, such transfer will not be set aside, although no judgment at law could have been recovered against her for the price. - The title of the .Defendants can be sustained under the power given by the husband to the wife to dispose of the goods, which was exercised by her in their favor, before any pretended revocation by the husband.

That power was ample to make an assignment for the benefit of creditors—it was to dispose of the property the same as if sole and unmarried. ' ' ' '

The judgment below should be reversed, and judgment entered dismissing the Plaintiff’s complaint. As this is a contest between creditors, where equality is equity, this should be done without costs to either party.

All concur.

Reversed.

JOEL TIFFANY,

State Reporter. ■ .  