[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 279 At common law, a married woman had a capacity to take real or personal estate, by grant, gift or other conveyance, from any person except her husband. But as to real property, the husband, where no trust was created, had an estate during the coverture, and during his life, if there was issue of the marriage; and the wife's personal estate, in the absence of a trust, vested in him absolutely, when reduced to his possession. The object of the statutes of 1848 and 1849 was to divest the title of the husbandjure mariti during coverture, and to enable the wife to take the absolute title, as though she were unmarried. (Laws 1849, p. 528, ch. 375, § 1.) There is some difficulty in a married woman purchasing property, whether real or personal, on credit, arising out of the principle that she cannot make a contract for payment which will be binding upon her personally, according to the general rules of law; but if the vendor will run the risk of being able to obtain payment of the consideration of the sale, the transfer will be valid, and no estate will pass to the husband, whether the wife had antecedently any separate estate or not. (Darby v. Calligan, 16 N.Y., 21.) It follows, that if the husband of the *Page 280 plaintiff in this case, had been free from debt, there could be no legal objection to her title to the farm, or to the cows which were purchased by and conveyed to her, and she would have been entitled to hold and enjoy them, to her sole and separate use, in the same manner as though she were not under the disabilities of coverture. It would follow, that she could cultivate the land and manage the personal property by means of any agency which any other owner of property might employ, and that the produce thereof and the increase of the stock would be hers.
Where the husband is indebted and insolvent, as was the case here, there is generally more or less reason to suspect that such arrangements are adopted as a cover to disguise the substantial ownership of the husband and to defraud the creditors. Whether, in a given case, the transaction is sincere and bona fide, or a colorable device to cheat the creditors of the husband, is a question of fact, to be determined by the jury or other forum entrusted with decision of such questions. In this case, the referee has found the facts necessary to show title in the plaintiff to the property in question, and he has omitted to find that her title was infected with fraud. On the contrary, by stating that the acts of the husband were done in the character of the agent of the plaintiff, and that she was the owner of the cattle which were seized, on the execution, he has virtually negatived the allegation of fraud. It is not our duty or right to review the testimony, with a view to pass upon the correctness of his conclusion, and we, therefore, express no opinion upon the evidence in this case.
A point is made that the defendant Smith, who directed Moore, the constable, to make the levy, is not responsible, in this form of action, because, as it is argued, he never had the property in his possession. That precise question was decided against the defendant's position, in Allen v. Crary (10 Wend., 349). The defendant in that case had done nothing but to direct the sheriff to levy upon the property replevied, under an execution against a person who was not the owner, and a levy was accordingly made. The court held, that this was *Page 281 a sufficient taking to enable the owner to bring replevin. I notice, that in an opinion at special term, before the late Judge WILLARD, the case of Allen v. Crary is made the subject of some criticism. But, in the case before Judge WILLARD, the defendant, who once had the possession of the property claimed, had actually transferred it and parted with the possession before the bringing of the action. (Brockway v. Burnap, 12 Barb., 347.) It did not become the duty of the court, therefore, to pass upon the effect of a levy upon execution where the process in replevin, as in this case and in Allen v. Crary, was served before anything more than making the levy had been done. I do not think the Revised Statutes, or the Code of Procedure, have made any change in the law as to the nature of the possession in the defendant which is required to warrant an action for the delivery of personal property. We therefore follow the case of Allen v.Crary, and hold that the action was properly brought against both defendants.
Two of the exceptions as to the admission of evidence are relied on. Trask, a witness examined for the plaintiff, was asked whether she had been in the possession of the farm since the deed to her, and the defendant objected that the inquiry called for an opinion on a question of law. The objection was overruled, and the witness answered that they, the plaintiff and her husband, had been on the place ever since. I do not perceive any well grounded objection to the question, but the answer was the statement of a simple matter of fact, and one in respect to which, upon the whole case, there was not the slighest question. Again, the plaintiff, while under examination on her own behalf, was asked by her counsel, "For whom did your husband do what business he did after you took the deed," c. This was also objected to on the ground that it called for a legal conclusion. Her answer was: "I expected he was doing it for me." Legal considerations may, no doubt, be involved in a question of agency. But prima facie the inquiry whether a person engaged in a particular employment was doing business on his own behalf or as the agent of another, involves only the question of fact whether *Page 282 he had been employed by that other person, and it is, therefore, a competent question to be put to such person. The exceptions, I think, have no merit, and there being nothing else in the case, the judgment must be affirmed.
WRIGHT, SELDEN, EMOTT, BALCOM and MARVIN, Js., concurred; ROSEKRANS, J., was for reversal, on the ground that a married woman, prior to the act of 1860, could not buy property for her separate uses, but under the acts of 1848 and 1849, could only take by gift or bequest.
Judgment affirmed.