
    COURT OF APPEALS.
    Martin agt. Rector.
    
      Ejectment — Actual occupant proper defendant — Occupancy a question for jury— Oode of Civil Procedure, section 1502. — When wife actual occupant.
    
    As to who is the “actual occupant” of premises at the commencement of' an action for ejectment, and so a proper defendant (2 B. 8., 304, sec. 4, new Code of Civil Procedure, sea. 1502), is a question of fact for the jury; and when the title was in the wife they might properly find that she was the “actual occupant,” even though her husband cultivated the soil, &c. (Rapallo and Earl, JJ., dissent.)
    
      Decided January, 1886.
    Plaintiff, on the original trial of the action for ejectment, recovered judgment for possession for non-payment of rent, and was put in possession by the sheriff. On appeal by the defendant, tbe general term reversed tbe judgment, and ordered a new trial, on which a verdict was rendered for defendant, who entered judgment for costs and for restitution to the premises, and was restored upon the proper writ. By an order of the special term this was set aside, and the sheriff directed to restore plaintiff ; but this order of the special term was reversed in the general term (28 Hun, 409), and the relief asked for by defendant , granted. From this appeal is brought
    
      Mr. Cowen, for appellant, Robert C. Martin.
    
      Mr. Miller, for respondent, Jacob S. Rector.
   Danporth, J.

That the plaintiff was the grantee of the ■ original lessor, that rent was due from the lessee, and unpaid, and that the devise contained a condition for re-entry upon the land in question for non-payment of rent, was conceded; but the land was occupied, and no recovery could be had, unless the defendant was, at the beginning of the action, the actual occupant of the premises (2 R. S., 304, § 4). Whether he was such occupant was the question litigated at the trial. The plaintiff there claimed that the evidence was all one way, and • of such force as to require the trial court to withhold it from the jury, and direct a verdict for him. The judge declined to • do so, and, upon submission to the jury, their verdict was in favor of the defendant, as was also a special finding that “ he was not the actual occupant of the premises at the time of the commencement of this action.”

We think the learned court did not err. By force of the . statutes relating to the property of married women (Laws 1849, chap. 875), the wife may take the equitable or legal title to real and personal property, and hold the same to her sole and separate use, as though she were unmarried. She might, therefore, cultivate the land and manage the personal property, either in person or by means of any agency which any other owner of property might employ (Knapp agt. Smith, 27 N. Y., 277; Draper agt. Stouvenel, 35 id, 507; Rowe agt. Smith, 45 id., 230; Bodine agt. Killeen, 53 id., 93; Wood agt. Wood, 83 id., 575). Whether she was doing so in this case, or whether she had .given to the defendant, her husband, the possession of the premises, was the real subject of contention, and to be determined as a question of fact (Alexander agt. Hard, 64 N. Y., 228).

That the title was in her was unquestioned, and, without her consent, he could have no legal possession; and, therefore, could not have even that rightful temporary use of the soil, without which one could not be, in the language’ of the statute, an “ actual occupant.” In behalf of the plaintiff he at one time testified, on examination before trial, but after suit commenced, that he “ was in possession at the time of the commencement ■of the action, and with that general testimony thé plaintiff rested. But afterwards the facts constituting the possession -and occupancy of the premises were disclosed, and, it appearing that the land was given to Mrs. Hector by her father, the ' defendant testified: “My wife went upon those premises in pursuance of that; I went there with my wife; the property was given to her, and, -of course, I went there and lived with her; that was the only reason I went there; I occupied the premises in no other way than that” “ She continued,” he says, “ to live upon and occupy these premises ” for many years, .and until a short time before the trial, and whatever he did was by her directions, or, as he says, he was the acting man under his wife. She testifies that she went into possession at the time the farm was given to her, long before the commencement of the action, and continued in possession from that time, personally residing upon and occupying it; that she never gave the possession of the premises in any way to her husband. Upon this testimony the jury might well find that the defendant was' not the “actual occupant.” He was there as husband, servant, ; agent — not as one having, in relation to the land, any right or interest or power of control. In neither capacity did he occupy •within the meaning of the statute. Nor were they in possession jointly. The possession was always her possession. If ousted by her husband or other -person, she could bring an action to recover possession. Before the acts (supra) the husband, jure mariti, had a right to the possession of his wife’s land, and as her head he might be presumed to be in occupation. It is now different. The wife, as well as the husband, may own lands free from the other’s control, and there can be no such presumption. He may still be the head of the family, without being in any legal sense the possessor or actual occupant of the house or land in or upon which the family reside. But upon the whole evidence it was properly left for the jury to say whether the defendant was the actual occupant; and their verdict, rendered, as we think it was, under proper instructions, is conclusive.

We, therefore, agree with the general term, and think the judgment appealed from should be affirmed.

Andrews, Miller and Finch, JJ., concur; Bapallo and Earl, JJ., dissent; Buger, Oh. J., not voting.  