The plaintiff* is a married woman, and for a period of fifteen years, previous to, and including the year 1865, her husband had given her holi*128day gifts of money, amounting in the aggregate to about $15,000. These moneys she instructed him to use, as her agent. He did so use and invest them in various stock transactions, and kept a separate account thereof. On a judgment recovered against the husband, the defendant, under-sheriff, made a levy upon a wagon, and other personal property, in June, 1867. This personal property was upon a farm of the plaintiff’s on which the plaintiff■ and her husband resided. The plaintiff brought this action of replevin, and claims that the property was purchased by her husband as her agent, with moneys acquired as above stated, or with the increase or profits of such moneys; that such property was in her possession and use upon the farm, and that her husband was solvent at the time of the purchase of the property. The defense is principally based upon the legal proposition that the wife could acquire no property by gift from her husband; and the referee before whom the case was tried so found, and reported in favor of the defendant. I do not, however, upon the facts of the case, assume that there was any gift—that is, a gift of any property of which the wife retained possession or control, or which was placed in such condition as to render it capable of being distinguished from other property of the donor.
I am not prepared to hold that a gift like the one in question confers any title upon the wife, or would confer any title upon any other person as donee, against third parties. A different conclusion might be reached if it were a return of the wife’s money to her; or if she retained some control of the property which is the subject of the gift; or if it were property capable of being distinguished; but to hold that a wife may immediately return to her husband money that he had given her, with instructions to use it as her agent, and that she may maintain title to personal property upon the allegation that it was purchased by her husband as her agent with the proceeds or profits *129of those gifts, is to leave the entire business community without suitable protection.
It does not appear but that in this case the “ agent,” the husband, has all that his wife has entrusted to him, and can fully account to her therefor. •
In respect to the separate account kept between them, the only account produced upon the trial was one made by the husband’s book-keeper, and commencing in June, 1865.
The wife was a witness upon the trial; the husband was not called.
I have not thought it necessary to consider whether the creditor upon whose judgment and execution the levy was made was a prior or subsequent creditor; nor does the question of the right of the wife, in equity, to have an account from the husband, need to be considered here. If her husband were simply her debtor, then his gifts did not constitute a separate estate, in the sense which is necessary to maintain this action. The appellant cites Dygert v. Remerschnider, (82 N. Y. Rep. 629,) in which the right of the wife was upheld; but in that case the wife had paid full value to the husband’s creditors. The appellant also cites Wallingford v. Allen, (10 Peters, 594,) in which Justice "Wayne says: “Where the husband is in a situation to make a gift of property to the wife, and distinctly separates it from the mass of his property, for her use, equity will sustain it,” &e. I hold the latter feature to be wanting in this case.
Eo gift inter vivos is sustained as conferring title unless the change of possession be positive, and the donor in no condition to repossess himself of the subject matter of the gift, or to recall the same. The legislation in this State, referred to upon the argument, does not enlarge the plaintiff’s rights or remedy.
The statutes of 1848 and 1849 enable a married woman *130to take by gift &c. from any person other than her husband, and the subsequent acts of 1860 and 1862 declare •the nature or qualities of the estate which married women may acquire, and enable them .to sue, &c. These acts do not in terms, or by implication, designate the husband as a person from whom the wife may take, &c.
[Kings General Teem, February 8, 1869.The judgment should be affirmed, with costs.
J. F. Barnard, Gilbert and Tap-pen, Justices.]