[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 509
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 510
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 511 The principal question in this case is that raised by the motion for a nonsuit, on the ground of the coverture of the plaintiff.
As the transactions in controversy occurred before the statute of 1860 (Laws of 1860, ch. 90, § 7, p. 158), the counsel for the defendant claims, first, that, by reason of the coverture of the plaintiff, the leases assigned to her became the property of her husband, they being chattels real, and the personal *Page 512 property, which she acquired and used in her business, also belonged to her husband, and was liable for his debts; and, secondly, that if the plaintiff had an interest in the premises and furniture, she could not maintain this action without joining her husband, the right of recovery being in him. The first of these positions is shown to be untenable, by the course of reasoning adopted by this court in the case of Knapp v. Smith (27 N.Y., 279).
At common law, a married woman could take the title to real or personal property, by conveyance, from any person except her husband. But, where no trust was created, her personal property vested in her husband, absolutely, when reduced to his possession, and he became possessed of her chattels real, in her right, with power to alien them at his pleasure during her life, and if he survived her, they became his, absolutely. The object of the statutes of 1848 and 1849 was to divest the title of the husband, jure mariti, during coverture, and enable the wife to take the absolute title as though she were unmarried. (Laws of 1849, p. 528, ch. 375, § 1.) Mrs. Draper, by taking the assignment from Earle of his leases, and being substituted in his place, with the consent of his landlord, became the lessee of the premises, and her husband had no right or interest therein. Her subsequent possession of the same was in her own right, and if any injury was done to the possession, the right of action therefor belonged to her. It is true that, under those statutes, a married woman could not become personally liable for the payment of rent, since they did not abrogate the general rule of law, that a feme covert cannot bind herself, personally, by contract, for payment, but, if the lessor will assume the risk of being able to obtain payment of the rent, the lease will be valid, and no estate will pass to the husband. And, although she will not be bound, personally, by her agreement, to pay rent, yet the conditions of the lease will be valid, and the landlord may avail himself of the right of reëntry, reserved in case of a breach of the conditions. It is clear, therefore, that the husband had no interest in the premises leased to his wife. It is equally clear that he had no title to the personal property *Page 513 in her possession. She commenced the business of keeping a boarding house in 1854. At that time she had no means, except $2,000, which she borrowed of her daughter. The furniture and other personal property was purchased by her, either with the means thus borrowed, with her earnings in the business, or upon her individual credit. In either case it belonged to her, absolutely, and was not subject to the control of her husband, or liable for his debts. She lived apart from her husband — with her daughters — and, for aught that appears, was deserted by him, and left to her own exertions for support. He had no agency or coöperation in the business. He furnished no means, directly or indirectly, to carry it on. The leasehold title to the premises, where the business was conducted, was hers, absolutely, as has been seen, and the business was managed by her, in her own name, and with her own means. Under these circumstances, her earnings in the business belonged, not to her husband, but to herself, they being the "issues and profits" of her separate estate, and, as such, coming within the express terms of the statute of 1849, by which an absolute title is vested in the wife. Even if the business had been managed by the husband, personally, under her employment, as her agent, she would have been entitled to its avails, in the absence of an intent to defraud his creditors. (Knapp v. Smith, supra.) The appellant's counsel assumes that the chattel mortgage, executed by Mrs. Draper, is void, for want of capacity in her to make it; but it is, undoubtedly, valid, as a conditional transfer of title, under the act of 1849, which authorizes a married woman to "convey" her real and personal property, and "any interest" or estate therein, in the same manner and with like effect as if she were unmarried.
As the action concerns the separate property of Mrs. Draper, it was properly brought in her name alone, and without the intervention of a guardian or next friend. (Code, § 114, as amended in 1857.)
I have carefully examined the points involved in the several exceptions taken by the defendant's counsel to rulings *Page 514 of the judge upon questions of evidence, and am of opinion that they have no merit.
The judge properly refused to charge the jury that the landlord had a right to enter forcibly before the 1st of August, on the ground that there was then rent in arrear. He had previously instructed the jury that the defendant had no right to enter under the leases for condition broken, because, though the rent may have been in arrear for more than $600, yet the subsequent reception of rent by the defendant, and of interest upon the rent in arrear, waived the forfeiture, and a subsequent entry, by force and without due process of law, was unlawful. This part of the charge was not excepted to (indeed no exception was taken to the charge, or any part of it), and, upon the facts assumed, the jury, undoubtedly, would have been warranted in finding that the defendant had waived the forfeiture, if that question had been left to them. If the defendant wished to have that point, or any of the facts which were assumed by the judge, submitted to the jury, he should have made a request to that effect, or, at least, should have excepted to the charge, on the specific ground that it assumed to decide questions of fact, instead of leaving them to the jury.
Upon the facts assumed, the proposition of law laid down by the judge was unexceptionable, and, consequently, the request of the defendant was properly refused.
It is by no means clear that the alleged waiver was essential to the plaintiff's right to recover. It is, at least, questionable whether the forcible entry of the defendant upon the actual possession of the plaintiff, even if the latter was in default and holding over, was not unlawful, and a trespass for which an action will lie. I am aware that there are several cases in the Supreme Court of this State, holding that a landlord, who has only used such force as was necessary to expel a tenant, holding over, would be protected against an action for damages (Hyatt v. Wood, 4 Johns., 150; Ives v. Ives, 13 id., 235); but, in a later case, the same court has characterized the rule as "harsh, and tending to the public disturbance and individual conflict" (9 Wend., 201); and *Page 515 there are well-considered decisions the other way in many of the sister States, and in England. (11 Pick., 379; 24 Maine, 242; 23 Verm., 635; 1 Man. Gr., 644, and other cases cited in 6 Am. Law Reg., N.S., No. 2, Dec., 1866, p. 104.) The point has never been decided by the court of last resort in this State. If it were material to the decision of the case, I should be disposed to hold that the forcible entry of the defendant upon the possession of the plaintiff was unlawful and a trespass, even if the plaintiff was then in default for the non-payment of rent, and the default had not been waived. But it is not necessary to decide that point, as it is clear, upon the grounds already considered, that the judgment should be affirmed.
All the judges concurring,
Judgment affirmed. *Page 516