
    Switzer v. Valentine.
    When personal property is purchased by a married woman, with the knowledge of her husband, and is used by the wife in keeping a boarding-house, which is kept as a mode of supporting the family, the property is the husband’s, and he is liable for its price to the vendor, although it was bought in the name of the wife, and the boarding-house was conducted by her.
    A mortgage of the property by the wife, as being her property, to secure the payment of a note made by her, and given for rent -paid, furniture bought for the house, and for provisions used in the house, is void, unless made by the authority of the husband.
    The acts of 1848 and of 1849, in relation to married women, do not confer upon them any new capacity, to make contracts, valid in law.
    The husband is entitled to the profits of any business conducted by his wife, and is liable for articles bought with his knowledge and assent for the purpose of prosecuting it.
    Those acts empower her to hold a separate estate, freed from all control of her husband, or interference with it, by his creditors, and to dispose of and convey it, with like effect, as if she was unmarried.
    But they do not capacitate a married woman, having no separate estate, to make any valid personal contract, which she could not have made previously.
    (Before Boswokth, Hoffman, and Slosson, J. J.
    Nov. 9;
    Dec. 2, 1854.
    This action was brought by Andrew Switzer, to recover the value of certain household furniture, alleged to have been wrongfully taken from the plaintiff by the defendant, and converted to the use of the latter.
    The defence set up by the answer, was, .that one Caroline Swit-zer owed the defendant $560.74, for furniture purchased for her, for moneys paid for rent of premises occupied by her, and for provisions furnished to enable her to carry on a boarding-house kept by her in the city of New York. Being so indebted, she gave to defendant her promissory note, dated the 20th of February, 1853, payable three days after its date, for the said $560.74. To secure the payment of the note, she executed to defendant a mortgage of the property in question, the property being her property, which mortgage authorized the defendant, on the note not being paid at maturity, to seize and sell the property, to satisfy the note. That the note not having been paid when due, the defendant, by virtue of the mortgage, seized and sold the property, to pay the amount due on the note. The action was tried on the 8th of May, 1854, before Mr. Justice Duer and a jury. It was proved on the trial, that the defendant having lent the sum of $560.74 to Caroline Switzer, who kept a boarding-house, she gave her note to defendant for that sum, and executed a mortgage of the property in question to secure the payment of the. note. The note having become due, and being unpaid, defendant took the property by virtue of the mortgage, and sold the same to pay the note.
    The evidence showed that the plaintiff and Caroline Switzer, during the whole period in which the transactions occurred which gave rise to this action, were husband and wife, and lived together as such. The house in which they and their family resided was rented by her in her name, and she kept boarders. Some of the furniture in the house was bought by the plaintiff and some by his wife. The latter rented the rooms to boarders and received payment of the bills for board. Part of the mortgaged furniture was bought by the defendant on his own credit, of Dwight Bishop, for the plaintiff. Defendant knew that Caroline Switzer was a married woman.
    The plaintiff’s daughter, in testifying as to the value of the property, among other things, stated what her mother said had been paid for the property. This evidence was not objécted to. The defendant insured the mortgaged property to the amount of $800.'
    When the testimony was concluded, his honor, the presiding Justice, charged the jury that they must find a verdict for the plaintiff. That the only question of fact for their consideration was the amount of damages.
    To which charge and every part thereof the defendant excepted.
    The counsel for the defendant requested his honor to charge the jury:
    I. That it is a question of fact for them to determine, from all the facts and circumstances, whether the wife of the plaintiff was not authorized by her husband to execute the mortgage.
    II. That it is a question of fact for them to determine, who owned the goods seized by the defendant under the mortgage; whether they were those of the plaintiff, or belonged to his wife, as her separate property.
    TTT. That if the jury believe, from all the facts and circumstances, that the plaintiff permitted his wife to use the property as her own, and in her own name, he cannot recover.
    
      IV. That if the jury believe the property received by plaintiff’s wife from defendant, Valentine, was included in the mortgage, and was received by her from defendant, by gift or grant, that it was her own- property, and that the plaintiff, as to that property, cannot recover.
    The Judge refused to charge as requested by the third and fourth propositions of defendant’s counsel. And in respect to the first and second propositions, he charged that there was no evidence showing authority or consent from the plaintiff to his wife, to execute the mortgage; neither was there any evidence to show that she was the owner of the property or any part thereof. To which refusal and charge, the counsel for the defendant excepted.
    The jury found for the plaintiff $471:66 damages.
    ⅝ A judgment having been entered on the verdict, the defendant appealed to the General Term.
    On the appeal, the defendant was heard upon the question whether the verdict was against evidence. No motion had been made at special term, for a new trial, on that ground. Some further facts are stated in the opinion of the court.
    
      T. M Tomlinson, for Appellant.
    
      W. McDermott, for Respondent.
   By the Court.

Bosworth, J.

The plaintiff proved that the property in question was taken from his possession, gave evidence of its value, and rested.

The defendant sought to justify the taking, by proving the facts set up in his answer. They were, in brief, that Caroline Switzer owned the property, and mortgaged it to the defendant, to secure the payment of a note of the same date as the mortgage, also given by her and payable to the defendant’s order, and that he took the property under the mortgage. The answer does not intimate that Caroline Switzer was the plaintiff’s wife, and had a separate property, nor does it aver that the plaintiff transacted any business in the name of “ Caroline Switzer,” or that she'was authorized by him to transact such business for him, or to mortgage the property in question, either in his name or in her own.

The fair meaning of the answer is, that the property belonged to her, in her own right, and that being such owner, she mortgaged it to secure a debt which she personally owed to the defendant.

The evidence showed clearly that she and the plaintiff were husband and wife, and that the defendant knew this when he took the note and mortgage. That they lived together as husband and wife, that he worked at his trade, and that she kept a boarding-house. That she made the purchases for the house, made contracts with the boarders, and received from them their board. All this was done with the husband’s knowledge.

Prior to the acts of 1848 and 1849, allowing married women to take, hold, and dispose of property as if they were single and unmarried, there is no doubt, that for all purchases made by the wife, with the knowledge and assent of the husband, and especially, when the articles bought come to his possession, in the manner and to the extent that the articles in question did, he would be liable to the vendor for the price. They could be seized and sold on an execution against him. In judgment of law, they would be his property and not hers.

In this case, many of the articles mortgaged to the defendant were bought by him. Some were purchased and paid for by her. Some were bought by the defendant, arid sent to her by his order, and the price formed part of the amount of the note which the mortgage was given to secure, and the articles themselves were covered by the mortgage. Of the latter class, were the articles bought of Dwight Bishop, by the defendant, and the bill of them amounted to $156.

Have the acts of 1848 and 1849 any bearing upon the questions arising in this action? By these acts, she may take by gift or grant, from any person, except her husband, either real or personal property, and hold, convey, and devise it, or any interest in it, with like effect, as if she were unmarried. Does thjs do more than to capacitate a married woman to hold as her own a separate property, and to dispose of it, as effectually, as if she were unmarried ? Does it authorize a married woman, even if she have a separate property,' to become a general trader, and make valid contracts, in respect to any business which she may be disposed to undertake, or in respect to any speculations in which she may choose to engage ? Is not the whole capacity which is given to her to purchase, limited to purchases which she may make on the credit of her separate estate, or for which she may pay, with such estate, or parts of it?

And is not all the new capacity, which is given to her to convey or devise, limited to a conveyance or devise of her separate property ?

Can a married woman who has no separate estate, make now any valid contract which she could not have made before these acts were passed?

In the present case, there is no pretence that Caroline Switzer ever had any separate estate. Even the property bought by Valentine of Dwight, was not given to her, for she gave her note for it. Was it granted to her, within the meaning of these acts, so as to make it her individual property ?

It went to the plaintiff’s house and possession, it was appropriated to his use, by being employed in a business prosecuted as a means of supporting his family. He is liable in law for its price, and it could be taken on execution to satisfy his debts. In judgment of law it was sold to him, and was his property, and the defendant is liable to him for its value. (Lovett v. Robinson, 7 How. Pr. R. p. 105; Hurd v. Cass, 9 Barb. S. C. R. 366; Shumway v. Cooper, 16 Barb. S. C. R. 556.)

We see no reason to grant a new trial, on account of any charge made at the trial, nor on account of any refusal to charge, as requested, by the defendant.

No- objection appears to have been made at the trial, to the competency of any of the evidence, given by the plaintiff to prove the value of the property taken. What Harriet Switzer heard her mother say was paid for the property, should not have been received as evidence of its value, if it had been objected to. But no complaint seems to have been made at the trial to the reception of that evidence. It appears that the defendant effected an insurance on the property to the amount of ,$800. • We cannot see that the damages are so clearly excessive as to require the court to grant a new trial, merely on that ground. We think the judgment should be affirmed.  