After examining the statute of 1848 as amended in 1849, relating to the separate rights of married women, and the case referred to by counsel, and some others, I have come to the conclusion that the referee has committed no error of which the defendant can complain.
The act of 1849 declares, that “ any married female may take by inheritance, or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise, real and personal property and any interest or estate therein, and the rents, issues and profits thereof, in the same manner and with the like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband, nor be liable for his debts.”
In the present case, Mrs. Griffin took, by grant, the farm from Eussell. She was seised in fee. It is true she executed a mortgage, in which her husband joined, to secure the payment of the purchase money. I do not see that this can affect her title to the land. She had capacity to take by grant, independent of the statute. It may be that the conveyance to her of the title was a fraud upon the creditors of her husband, but the case does not disclose facts requiring the referee so to find. It appears simply that her husband was in possession of the farm, and had occupied it prior to the conveyance to her. It does not appear how he occupied it, nor that he had ever paid any thing on account of the land. Indeed, the mortgage was given for the purchase money. The statute secures to her “ the rents, issues and profits.” In the present case her husband did not put in or harvest the crops, unless it should be said as a question of law that his wife and son were at work *647for Mm, and that they couM not cultivate the farm on her account. He was absent, out of the state. It is not the case where the husband works the farm himself, doing or paying for the labor. The statute gives her the power of disposing of the property. I do not see that any question of fraud was raised by the evidence. It does not appear that Griffin owed any debts when the land was conveyed to his wife. In short, I think the plaintiff acquired a good title to the hay and oats by his purchase from Mrs. Griffin, as against the defendant.
[Niagara General Term, September 12, 1859.Greene, Marvin and Davis, Justices.]
It is said that the mortgage was foreclosed, and that the title of the property was in Calwell, who purchased the premises in August, 1853, the year before the oats and hay were raised. It may well be that Calwell was entitled to the hay and oats, and it will be in time to decide that question when he or some one claiming under his title shall present the claim. But the defendant has no connection with Calwell; He is a naked wrongdoer.
In short, I think the judgment should be affirmed.