dissenting. As I understand the rule of the common law marriage was an absolute gift to the husband of the goods, chattels and personal property of which the wife was actually possessed at the timé of the marriage, and of such as should come to her during coverture; the title vesting in him by marriage, he might use and dispose of, the same as his individual property, and at his death it would go to his representatives, and not to his wife if she survived.
*507The acts of 1848 and 1849 did not change the rule of the common law further than to suspend its operation during the life of the wife, allowing her to use or dispose of her property. They did not prevent the estate from vesting, or the husband’s right to posit session, subject to such suspension, so that .at the wife’s death so much as remained undisposed of was the husband’s, without any action on his part.
In this case, and as to this property, the plaintiff, on the death of his wife, took absolutely as owner under and by virtue of his marriage, and he was not required to perfect his title, possession, or right to possession, by administration. See Vallance v. Bausch, 17 How. 243; Ryder v. Hulse, 24 N. Y. 372; Ransom v. Nichols, 22 id. 110.
I do not think this view is affected by the case of Barnes v. Underwood, 47 N. Y. 351, as this question was not in that case ; the husband there having taken out letters, the contest was as to who was entitled to the estate. But if administration were necessary, it goes simply to the plaintiff’s capacity to sue, and should have been taken advantage of by answer. Code, § 148. The counsel in no manner alluded to this question, in their argument; the point was not insisted on, nor even mentioned in the respondent’s brief; it does not go to the merits, and should, therefore, be deemed waived. 3 Wait’s Sup. Ct. Pr. 224, 225, and cases there cited.
But no matter what we think of this question, a new trial should be granted, unless we hold the voluntary delivery estops plaintiff, and he be allowed to recover for that portion of the property taken, which belonged to him, and never to the wife. This property was not claimed, but was delivered with the other property.
I am not prepared to say that plaintiff should be barred by reason of this delivery, even conceding it a question of law. The delivery by plaintiff was in ignorance of his rights as to the property the wife received from her father. The referee finds that, “the said property was delivered by the plaintiff and received by the defendant as his property, under the claim of ■ title made thereto by the defendant, and under no other consideration whatever,” and in his subsequent report he finds that “immediately before the “delivery the plaintiff was in possession, was the owner, and held the legal title thereto.”. It appears then that plaintiff was the then owner, and surrendered the possession to the defendant, believing the defendant to be the owner, and in ignorance of any title in himself.
*508In the recent case of Sanford v. Sanford, in the Court of Appeals, not yet-reported, where a note had been delivered to the administrators as part of the assets, which legally belonged to plaintiff, the court said : “ But it was proved on the last trial that these acts of plaintiff were done in ignorance of her rights to the note * * hence there is no foundation for an estoppel,” and she was permitted to recover. To hold this plaintiff estopped for the reason stated would be unjust. The defendant has got property to which he is not entitled, and the plaintiff has lost property to which he is clearly entitled.
The cases cited under plaintiff’s twelfth point demonstrate quite satisfactorily that in a case like this, this court, as a court of equity, has the power, and ought to grant a new trial.
In my judgment the true rule in such cases is that laid down by Lord Masefield in Bize v. Dickason, 1 T. R. 285, that is, “if a man has actually paid what the law would not have compelled him to pay, but what in equity and good conscience he ought, he cannot recover it back; but when money is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back.” In this case the mistake was mutual.
The defendant, when he claimed the property, believed he was the owner. This view is the most favorable to him, for if, when he claimed and demanded the property, he knew it was plaintiff’s, he would be guilty of a fraud in claiming and'demanding it as his. The property, then, is plaintiff’s, and the possession was surrendered to defendant through mutual mistake. The defendant conceded on the trial that he “ still retains ” the property, and the parties may therefore be restored to their original position. .
Where rights have been impaired through mutual mistake of the parties, and these rights can be restored without injury to either, and the rights of third parties do not intervene, a refusal to grant relief could rest on no sound principle. The doctrine of estoppel or mistake of law has no application. Westerlo v. De Witt, 36 N. Y. 340; Sanford v. Sanford, before cited; see also 2 Alb. L. J. 405, et seq.; 3 id. 448, et seq.; 4 id. 7, et seq.; 6 id. 103, et seq.; 23 Am. Jur. 146, 166, 371, 412, where the cases are all reviewed.
I think the .judgment should -be reversed and a new trial granted, costs to abide the event.
Judgment affirmed.