
    Margaret S. Moore, Respondent, v. Henry T. Moore, Appellant.
    It is not within the constitutional power of Congress, to prescribe for the States a rule for the transfer of property within them. A deed, therefore, is not invalid because not duly stamped.
    A wife owning real estate as tenant in common with her husband, can maintain an action for partition against him.
    (Submitted February 5th, 1872;
    decided February 13th, 1872.)
    Appeal from judgment of the G-eneral Term of the Supreme Court in the fourth judicial district, affirming a judgment in favor of plaintiff, entered upon the report of a referee.
    This action is brought to obtain partition of certain real estate, of which it is claimed that the parties who are husband and wife are seized as tenants in common. The judgment directs a sale of the premises, the payment of the plaintiff’s costs out of the avails of such sale, and a division of the residue between the parties.
    On and before the 6th day of June, 1864, the defendant was the owner in fee of the real estate in question; and on that day, he, with the plaintiff, his wife, executed to their son, John K. Moore, a deed, purporting to convey the equal undivided half part of such premises; and on the same day the said John K. Moore, with his-wife, executed to the plaintiff a deed, purporting to convey to her the said equal undivided half part of such premises.
    At the time of the presentation of the two deeds before the referee as evidence on the part of the plaintiff, no revenue stamp was affixed to either; and the plaintiff’s counsel then, in the presence of the referee, affixed a six dollar stamp to each, and requested the referee to cancel the same. The defendant’s counsel objected to and protested against the affixing and cancellation of such stamps, as unauthorized and ineffective. The referee disregarded such objection and protest and canceled the said stamps.
    
      The deeds were then introduced and read in evidence, on the part of the plaintiff, in opposition to the objection of the defendant.
    A motion was made by the defendant’s counsel for a dismissal of the complaint upon the grounds that plaintiff had failed to show title, and that a wife could not maintain partition against her husband, which motion was denied by the referee.
    The referee found the deeds valid, and plaintiff entitled to partition, which was decreed accordingly.
    
      W. T. L. Sanders for appellant.
    (Act of Con., 1862, chap. 119, § 95.) A wife cannot maintain partition against her husband. (Frestly v. Frestly, 42 Barb., 641; Longendyke v. Longendyke, 44 id., 366.)
    
      Miles Beach for respondent.
    The deeds were valid. (Act of Con., 1864, chap. 173, §§ 163, 158; Beebee v. Hutten, 47 Barb., 187; Carpenter v. Snelling, 97 Mass., 452; Toby v. Chipman, 13 Allen, 123; Hitchcock v. Savage, 39 Ver., 412 ; Quinn, Adm., v. Lloyd, 1 Sweeny, Sup. Ct., 253; People ex rel. v. Gates, 43 N. Y., 40.) The conveyance to plaintiff from her husband was lawful. (Kelly v. Campbell, 1 Keyes, 29 ; Wilber v. Fradenburgh, 52 Barb., 474.) The plaintiff can maintain this action. ( Whitney v. Whitney, 3 Abb., N. S., 350.)
   Per Curiam.

We have decided that an instrument in •writing may be read in evidence, although there is not affixed to it an internal revenue stamp, as required by the terms of an act of congress. (The People ex rel Barbour v. Gates, 43 N. Y., 40.) This went upon the principle that the federal government could not prescribe a rule of evidence for the State courts. We now hold that it is not in the constitutional power of congress to prescribe for the States a rule for the transfer of property within them. Without denying that it is within the power of taxation, conferred upon it, for Congress to lay an excise tax upon the business operations of communities, and to collect that tax by the means of stamps, to be placed upon the written instruments exchanged between contracting parties, and to enforce the observance of the law, to that end, by the imposition in it of penalties for its nonobservance, we are of the opinion that it is without that power to declare that a contract or conveyance between citizens of a State, affecting the title to real estate, is void, for the reason that such observance has been omitted. Apart, then, from any consideration of the sufficiency of the stamping and the canceling which took place before the referee, we think that these deeds were valid, and passed to the plaintiff, an estate in fee simple absolute, to one equal undivided half part of the premises in the deeds described.

The deeds being operative, on the execution of them the plaintiff, being a married woman, held this equal, undivided half part as her separate estate, or a part thereof. In relation to it, the plaintiff can maintain an action in the same manner as if she were a feme sole. (Code, § 114, Laws of 1862, chapter 172, p. 343, section 3.)

And this action being one in equity, she1 can, though a married woman, maintain it against the defendant, though her husband. (Martin v. Martin, 1 Comstock, 473; 1 Daniels’ Chy. Pr., 110 ; Story Eq., § 61; 2 Story Eq. Juris., § 1361; 1 id., § 646.) The judgment should be affirmed with costs.

All concur.

Judgment affirmed.  