On the 1st March, 1855, the parties hereto ratified in writing the result of the negotiations of referees selected to accomplish an amicable separation between them. They were then living together in the house to recover the-possession of which this action is brought, and they continued to live there together until the 28th July, 1855, when, or about which time, Mrs. Gould went to Europe. The referees determined, among other things, that the parties should live separately, and retire from each other, from and after the 1st May, 1855, and this was ratified in the manner stated. It was not carried out, however, according to the provisions of the agreement of the parties, they having lived together until July following, as already stated. What reasons led to this agreement was not shown upon the trial; whether it was necessary in consequence of the misconduct of either or *458both, or whether it arose from an incompatibility of temper, or was for the gratification of a mere whim by either or both, does not appear. The instrument, hoAvever, no matter Avhat the inducing cause may have been, did not contemplate an immediate separation, and Avas void as against the policy of the law, (Hindley agt. Marquis of Westmeath, 6 B. & C. 200; H. agt. W. 3 Kay Sf Johns. 382 ; Durant agt. Tiltey, 7 Price, 577 ; Carson agt. Murray, 3 Paige, 483, and briefs; Rogers agt. Rogers, 4 Paige, 516 ; Florentine agt. Wilson, Hill & Denio’s Sup. 303;) assuming it to possess the necessary auxiliary of a trustee, which it does not, and Avhich affects its validity. (Cases supra.)
As an agreement for a future separation, it was not carried out according to its terms, the parties having lived together for nearly three months after the day agreed upon to separate, and it may. be well questioned, whether, assuming the agreement to have been valid, it was not rescinded by the subsequent cohabitation or living together (Carson agt. Murray, supra, Chancellor’s opinion, p. 501). This case must therefore be regarded as an action of ejectment brought by a Avife against her husband, from whom she has voluntarily separated, and the right to maintain it depends entirely upon the enabling statutes of 1848, 1849, 1860 and 1862. I have had occasion in several cases determined at the special and general terms of this court, to express my opinion upon the object and intent of these statutes, and there can be no doubt that the legal status of a married woman created by them is entirely different from that accorded her by the common law. The literal construction of the act of 1862, would authorize any proceeding by a wife against her husband that she could initiate against any other person, and it may be that it was the intention of the legislature to grant to her the right suggested. She is authorized by section 2 of the act of 1860, to carry on any trade or business, and perform any labor or services on her sole and separate account and her earn*459ings are secured to her as her sole and separate property.
It may be that the legislature intended by the act referred to, to authorize a married woman to abandon her husband, neglect her children, and in disobedience to her husband, engage in any pursuit in which she chose to invest her separate estate, or risk her credit. A literal reading of the statute would .lead to no other conclusion, and if such was the intention of the legislature, it has inaugurated an element which strikes at the very foundation of conjugal happiness, and which must ultimately produce great mischief. I do not believe the legislature designed to establish any such authority. The act of 1860 went still further. It made every married woman the joint guardian of her children with her husband, with equal powers, rights and duties in regard to them. The act of 1862 repealed the provision just recited, and several provisions also of the act of 1860,' the object of which was to enable a woman who could not obtain the assent of her husband to the sale of her property, to procure the power to do so on application to the county court. The legislation on the subject of married women, has been, therefore, unsatisfactory and wavering. The effect upon marital happiness has been doubted or ascertained, and as each one of the influences has operated upon the legislators, they have enacted, repealed, amended or modified existing laws. There is nothing in any of the acts mentioned, which shows an intention on the part of the legislature so to invade the existing legal relation of husband and wife, as to authorize the latter to commence an action of this character against her husband; an action in form, and by proof on the trial, presenting no other feature than a title to the premises.
The legislature did not intend by the acts referred to, to make a husband in the language of Lawrence, J,, tenant at will to the wife, of his marital rights (Chambers agt. Canfield, 6 East, 244). The object of these statutes was to afford ample protection to the wife against the improvi*460dence of her husband, by securing to her all her separate estate, free and clear of his debts, and to enable her with his consent, or upon his abandonment of her, to carry on business on.her separate account. The design was not to release her from all her marital obligations, and make her entirely independent of her husband, sweeping' away the right of the husband to any control over her, and all his rights, acknowledged for hundreds of years, by a series of legal decisions. It was no more intended by the legislature that she could eject her husband from her house, than that she could maintain an action of assault and battery against him, although by the literal reading of the statute of 1863, section I, that right of action is granted (Longendyke agt. Longendyke, Albany Gen. Term, September, 1863).
When a wife having a separate estate, of which she is unjustly deprived by her husband, wholly or partially shall establish by proper proofs her right to its absolute possession, then she must be protected by the law, and her property restored. When she becomes an actor, it must be upon proper allegations and proof, and not upon the mere abstract doctrine of title.
If upon the trial of this action, although in form as already suggested resting upon title, the plaintiff had offered to prove such facts as would entitle her to the possession of her property, I thing she might have proceeded with her action regardless of its form. She did not offer to do so, and the case made out is one which cannot be sustained at law, and to which on the facts proved the rules of equity do not apply.
She is not entitled, therefore, to the relief demanded, upon the whole law of the land.