The evidence shows that the plaintiff received money from her mother in Russia when she was twenty-one years old; that she had been married sixteen years; and that she left Russia six years before the trial, and came to Rochester, and had lived there since. She kept some of the money in a savings bank and some in her own possession, and from time to time loaned some to her husband, and he repaid it to her. On the 2d day of April, 1861, she loaned him of this money $800 and took his note, payable in eight months, and in September of the same year she loaned him $420 and took his note, payable in three months. On the 2d day of January, 1862, he transferred to her by bill of sale the goods in store, in payment of these notes, and the notes were canceled.
The plaintiff and her husband were married in 1847, but it does not appear where they were married, nor where they lived at the time of their marriage, and it does not positively appear that they lived in Russia when she got the money. All that appears upon this subject is that she got the money of her mother in Russia, and that she afterward left Russia and came to this country, and it does not appear in what year she got the money of her mother.
As I view this case, it is wholly unimportant whether we assume that the plaintiff and her husband were citizens of Russia or whether we assume they were citizens of this State at the time she received this money from her mother.
There is no proof what the laws of Russia in reference to the property and rights of married women were, and there is no presumption that the common law was in force there. *Page 301 Such a presumption is indulged by our courts only in reference to England and the States which have taken the common law from England. The courts cannot take notice of the laws of Russia unless they are proved, and in the absence of proof our own law must of necessity furnish the rule for the guidance of our courts. (Monroe v. Douglass, 5 N.Y., 447; 2 Cowen Hill's Notes, Van Cott's ed., 326, 327.) Hence in any view, the law of this State, in reference to the property and rights of married women, must furnish the rule for the decision of this case.
While I do not think it of the least importance whether it was before or after 1848, that the plaintiff received this money from her mother, there is no proof, and there can be no presumption that it was before 1848. She had this money for at least five or six years before she loaned it to her husband, she got it from her mother, claimed it as her separate property, and it was recognized and treated as such by her husband. If under such circumstances, the husband's creditors claim that the money really belonged to him, because it was given to the wife before 1848, they should prove it, and not ask the court to presume it. But if the plaintiff received the money as a gift from her mother, before 1848, the husband chose not to avail himself of his marital right to claim it. He consented that his wife might have it as her separate estate, and it thus became her separate estate in equity, and when she loaned him the money she became in equity his creditor, and he was equitably bound to pay her according to his agreement, and its payment could in equity be enforced against him. While he was in equity bound to pay his wife, and she could compel him to do so, is there any reason for saying that he could not pay her voluntarily? Suppose he had repaid to her the money, will it be claimed that his creditors could take the money away from her?
It has frequently been held, that the husband has the right, and owes the duty, to pay such a debt, and that he can prefer it in a voluntary assignment made for the benefit of his creditors. (Schaffner v. Benton, 37 Barb., 45; Wolfe v. Security *Page 302 Fire Ins. Co., 39 N.Y., 49; Woodworth v. Sweet, 44 Barb., 268; McCartney v. Welch, 44 Barb., 271; Jaycox v.Caldwell, 37 How., 241; Winans v. Prebles, 32 N.Y., 423;Borst v. Spelman, 4 N.Y., 284; Babcock v. Eckler,24 N Y, 623; Livingston v. Livingston, 2 John, Ch. 537;Wallingford v. Allen, 10 Peters, 583; Story's Eq. Jur., sec 1366, c., and 1402, c.) The payment of such a debt by the husband is not void in such a sense as to leave the title to the money paid in him; and the same must be true if payment is made in any other property, not money. After this property was transferred and delivered to the plaintiff, in payment of the notes, it belonged to her, and she held it under the statutes of 1848 and 1849, and the laws amendatory thereof, by a strictly legal title, good against her husband and all his creditors. A wife can enter into contract for the purchase of personal property from her husband. Such a contract would be void in law, but if founded upon a sufficient consideration passing from the wife, it could be enforced against the husband in equity. While the contract remained executory, and the husband had not delivered the property to the wife, she would have against him a merely equitable claim. But after the husband had delivered the property to her, she would hold it by a strictly legal title, as she held her other separate property. So a wife can loan money to her husband, and before repayment by him, she has a claim against him which she can enforce in equity, and which she cannot enforce at law, but he owes her the duty of payment, and when he has voluntarily paid her, then she holds the money paid by a strictly legal title, as she holds her other money, and it can make no difference whether she be paid in money or other property.
Upon the trial the motion for a nonsuit was upon the sole ground that the transfer of the goods from the husband to the wife was invalid, and gave her no title. It was not in any way claimed that the evidence did not show that the husband had sufficiently waived and relinquished to his wife his marital right, if he ever had any, in the money which she *Page 303 got from her mother, or that her debt against her husband was a valid debt. The claim made was that the husband could not pay the debt by a transfer and delivery of the property directly to the wife, and it was upon this claim alone that the General Term granted a new trial; and in this, as I think I have sufficiently shown, there was error.
I, therefore, favor a reversal of the order of the General Term, and a judgment for the plaintiff upon the verdict with costs.