[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 520 The facts are stated with great perspicuity in the findings of the referee. The testator, as sheriff of the county of Rensselaer, levied on the goods of the wife, in virtue of executions against her husband. The property consisted of the stock in a country store, of which she was the sole proprietor. The husband conducted the business in her behalf, in the name of "E. Smith, agent," and nominally, if not really, for her as his principal. The entire capital was contributed from her separate estate, except money borrowed in the name of "E. Smith, agent," and the profits accruing from the use of such capital. The husband never owned any portion of the property, and never professed to own it. The style in which the business was conducted was notice to the public that he was acting as a mere agent, his wife being the principal in name, as upon these facts she was also in law. No question of fraud is raised by the findings. The whole family received their support from the business and its profits, taking goods from the store as occasion required. No account was kept between them. The law requires none to be kept, between parties in the relation either of debtor and creditor, or of husband and wife. The effect of the whole matter was, that she supported her husband; and though the law does not enjoin this on the wife as a duty, it does not prohibit it as a wrong. If the property had come from him, these would have been badges of fraud; but as it all came to her by inheritance, she was merely exercising over her own property, that dominion which it was the purpose of our statutes on this subject to secure. If she had conducted the business through a different agent, no one would have thought of questioning, either her title to the property, or her right to support her husband, without forfeiting her inheritance.
Whatever may have been the practical effect of these statutes *Page 521 in particular cases, it certainly was not their object to introduce discord in the marital relation, or to disable husband and wife from interchanging offices of mutual service and affection. If we were to hold that a married woman could not avail herself of her husband's agency in the transaction of her business, nor apply a portion of her property to his support if occasion required, we would be giving our sanction to a rule, in plain contravention of the policy in which these statutes had their origin.
A different view very commonly prevailed at the time this cause was heard and decided, and it derived support from the tendency of some of the earlier decisions; but the question has since been disposed of in the case of Knapp v. Smith (27 N.Y., 277). It was there held, upon full consideration, that, under the statutes of 1848 and 1849, and independent of the act of 1860, a woman acquiring property from a third party, during coverture, could manage it through the agency of her husband, and hold the profits and increase to her separate use. In that case, as in this, the husband derived his support from the property of the wife, and received no other consideration for his services; but it was held that this did not impair her title to that, which belonged to her and never belonged to him.
It is insisted, on the authority of a dictum in the case ofSherman v. Elder (24 N.Y., 383), that, where the wife permits her property to be blended for the purposes of trade, with merchandise belonging to her husband, it is liable to seizure for his debts. Without considering the question, whether the proposition can be maintained, without material qualification, it is sufficient to say that no such issue is presented here, as the wife was the sole proprietor of the entire stock of goods.
It is claimed that the transfer of the cause of action by Mrs. Smith vested no interest in the plaintiffs, either at law or in equity. This was not the ground on which the case was decided; but if the question was directly before us, we should have no hesitation in saying that the action was properly brought by the plaintiffs, as the real parties in interest. The *Page 522 referee finds, as matter of fact, that the plaintiffs were the assignees of the wife. The instrument is not set forth; but the case discloses the fact, that she was indebted to them at the time of the assignment. We entertain no doubt that, irrespective of the act of 1860, the transfer of the claim by the wife to her creditors vested the equitable interest in them, and that the action was properly brought in their names. (Sherman v.Elder, 24 N.Y., 381, 384; Knapp v. Smith, 27 id., 277.)
The judgment should be reversed, and a new trial ordered, with costs to abide the event.