*507By the Court.
Balcoh, J.question presented by a motion for a nonsuit, is, whether the evidence justified the referee in holding that any portion of the property which the defendant had taken and sold, belonged to the plaintiff. If it did he properly denied the motion; but if it did not, he should have granted it.
The plaintiff did not prove where she obtained the identical money she paid to David Vrooman for the pleasure wagon, or to Thomas Davis for the cow which she purchased of him, or to Isaac B. Davis for the steer she had of him. But she proved that a brother of her husband had previously given her seven hundred dollars; and she had paid only one hundred dollars toward the farm which she had bought in the town of Olive, and she was entitled to the rents, issues and profits of such farm “in the same manner, and with like effect ” as if she had been unmarried; and those rents, issues and profits were not liable for the debts of her husband. L. 1849, p. 528, c. 376. She also showed her husband was poor; and David Vrooman testified that he did not think her husband had two dollars in the world when he sold the pleasure wagon to her. These facts clearly authorized the inference that the plaintiff paid her own money for the pleasure wagon, cow and steer ; and they justified the referee in holding that those articles were the property of the plaintiff at the time the defendant took them and sold them. The fact that her husband used them in carrying on her farm, for the benefit of himself and children, as well as herself, did not render them liable for his debts,, or deprive her of the right to sue for the same, when taken from the possession of her husband, and converted without her consent. Sherman v. Elder, 24 N. Y, 381.
These views not only lead to the conclusion that the referee properly refused to nonsuit the plaintiff, but also show that that the plaintiff was entitled to recover the value' of the pleasure wagon, cow and steer.
We need not determine whether the plaintiff was entitled to recover the value of the lumber wagon and sleigh purchased of Patrick Kern an, and “paid for by produce raised on the farm ; ” for she has not appealed from the determination of the supreme court rejecting her claim for those articles.
*508I am unable to see that it was material for the plaintiff to prove “ what the fair rent” of the farm was per year. But I am of the opinion that the evidence that the farm “ ought to rent for one hundred and forty dollars or one hundred and fifty dollars per year,” did not prejudice the defendant at all on the trial. It was neither beneficial to the plaintiff nor prejudicial to the defendant. If therefore, the referee erred in receiving such evidence, the error should be wholly disregarded.
It rested in the discretion of the referee, whether he would permit the plaintiff’s counsel to put the leading question to Isaac B. Davis, as to who paid for one of the steers in dispute, and there was no abuse of such discretion.
The finding of the referee, that the plaintiff “ purchased and paid for” the articles of property, for which she has recovered, was tantamount to finding that she paid her own money therefor and owned the same, for such is the legal inference from these facts.
The facts found by the referee, justified all his conclusions of law, so far as they were sustained by the supreme court.
A wife risks no more by permitting an insolvent husband to occupy her real estate and use and manage her personal property, than a stranger does by permitting a bankrupt to do the like with his property. She is as clearly entitled to “ the rents, issues and profits ” of her real estate, and the benefits of the ownership of her personal property, when occupied and used by her insolvent husband, as when occupied and used by any other insolvent person. She is not obliged to turn her husband out of her house, or off her land, or prevent him using her personal property to save the same, and all benefits accruing therefrom, from his creditors. These conclusions are so obviously just, they need only to he stated to be admitted to be correct. They are not only just, but equitable, and also legal.
For these reasons, I am of the opinion that the judgment of the supreme court should be affirmed, with costs.
All the judges concurred.
Judgment affirmed, with costs, and ten per cent, damages.