The principal questions in this case are, 1, Is the conveyance of the lands made about the first day of May, 1866, by James Farthing, the husband (through the medium of Weber,) to Christiana Farthing, the wife of said James, valid ?
2. If valid, what is the nature or quality of the estate which she took by that conveyance ?
1. The validity of the conveyance is not affected by the married woman’s act. Before that act, a married woman could take property by descent, devise, bequest, gift and grant, but on receiving property,, if personal, it immediately became the property of the husband, if real estate, while the fee vested in the wife, the husband took an estate in it, and was entitled to the possession of it and its rents, issues and profits.
The object of the married woman’s act is, to change the quality of the estate which a married woman may take by *31enabling her to take and hold personal and real property as her sole and separate property free from the interference or control of her husband, or liability for his debts.
It is not necessary to determine whether the married woman’s act has abrogated the technical rule of the common law, (resulting from the artificial theory, that husband and wife are one person,) that the husband cannot convey directly to the wife, nor the wife to the husband. There seems to be some conflict of judicial opinion on that point. (Rawson agt. Penn. R.R. Co., 2 Abb. N. S., 220; Little agt. Willetts, 37 How., 481.)
It is so well settled that it may be said to be elementary, that a transfer of lands made by the husband to the wife through the medium of a third person, in the manner in which the transfer under consideration Was made, vests, if fairly and honestly made, the title of them in the wife.
The validity of the transfer under consideration must, therefore, be tested by the same circumstances of good faith, solvency and intent, by which a voluntary conveyance made before the passage of the married woman’s act by a husband for the declared purpose of providing for his wife out of his estate, would have been tested.
I am convinced as matter of fact, that the transfer of the land was made by Farthing, the husband in good faith, without any intent to defraud, and asa just provision for his for his wife out of his estate.
The • husband was fifty-three years of age; he had been married twenty-eight years; his two children (two daughters) were married; he was engaged in a prosperous business which he had followed for twenty-eight years, and in which he had accumulated about all the property he possessed; he intended to continue his business, and was confident that the success of the past would attend him in the future; he possessed lauds of the value of $25,000, had $30,000 in money, and some few thousand dollars of other personal property, and was entirely out of debt, and he gave to his *32wife that portion of his estate (his land) which was yhe least available to him in his business, but most likely to secure a permanent provision in' her.
It was said that the business in which the husband was engaged, was hazardous, risky. It is quite apparent that all that was meant by these expressions is, that the market price of cattle was variable.
I hold the transfer of the lands valid.
2. This brings me to consider the quality of the estate of the wife in the lands transferred to her, and thus involves a consideration of the married woman’s acts.
In the case of Bank of Attica agt. Niles, we held that under the act of 1849, the husband had, at law, an estate in lands conveyed by him, through a medium to his wife, and the right to the possession of them during their joint lives. That act enabled the wife to hold lands to her sole and separate use free from her husband, &c., which came to her by gift, grant, &c., from any person “ other than her husband,” leaving the nature and quality of her estate in those which came to her by gift from her husband, to be determined by the rules of law or equity, in force at the. time of the passage of that act.
The supreme court in géneral term, in this district has made the same ruling.
The provisions of the act of 1849, enabling a married woman to hold property to her sole and separate use, which came to her from .others, were general, and.excepted only that which came to her from her husband. I think, that the act of 1860, removed that exception, and enables a married woman to hold lands to her sole and separate use, free from the control of her husband, or liability for his debts, which since the passage of that act have, or may fairly and honestly come to her from her husband, in the manner and form sanctioned by law.
The legislation of this state concerning the rights and liabilities of husband and wife, has been progressive. Hus*33band and wife are no longer in this state one person in the law, in respect to the rights of property, the-wages of labor • and responsibility for each others. acts, but two separate and distinct persons.
The plain intention of the act of 1860, was to enlarge the capacity of married women, and to enable them to hold to their sole and separate use, &c., property acquired in a manner which would, under the law as it then was, be subject to the control of the husband, and liable for his debts. The first section of the act of 1860, divides the property of a married woman into four classes, which it declares shall “ notwithstanding her marriage," be and remain her sole and separate property, &c.”
1. “The property both real and personal, which any married woman now, owns is her sole and separate property.” This protects the wife in the enjoyment of that which was her sole and separate property at the time of the passage of the act.
2. “That which comes to her by descent, devise, bequest, gift or grant.” That is, that which shall thereafter come to her by descent, &e.
There is no limitation as to the persons from whom it must come. From the progressive character of the act, the construction of the section, and the clear and explicit language used, I am of the opinion, that the intention was to embrace the husband.
3. “That which she acquires by her trade, business, labor or services, carried on or performed on her sole or separate accountunder the previous statutes, property thus acquired could not be the sole and separate property of the wife. The provision shows the spirit of the act.
4. “ That which a woman married in this state, owns at the time of her marriage.”
I hold that the transfer of the lands by the defendant. Farthing, to his wife, through the medium of Weber, vested them in her as her sole and separate property, free from the *34control of the husband, or liability for his subsequently contracted debts.
The evidence fails to show that the defendant, James Farthing, has or had any interest in the farm purchased of Wells.
There must be judgment for all the defendants, with costs, except the defendant, James Farthing; as to the defendant, James Farthing the plaintiff, must have judgment appointing a receiver, &c., with costs to be paid out of any properly which may come to the hands of the receiver.