delivered the opinion of the court:
The plaintiff below, Taylor, occupied with his wife in the spring and summer of 1862, a piece of land owned by her, on which he planted corn. In the course of the summer he went into the army, leaving his wife in charge of his affairs. She sold the standing corn to the appellant, Elijah, at 20 cents per bushel, for which he gave her his note, estimating the corn at 400 bushels, and agreeing to pay her at the same rate for any surplus. She went on a journey, leaving him to gather and measure the corn, and on her return he paid her for 425 bushels, she insisting, however, that there was a larger quantity. Her husband, on his return from the army, brought suit for the alleged surplus, and obtained a verdict and judgment for $53.
It is insisted, as a ground for reversing the judgment, that, admitting there was a surplus of corn unpaid for, the husband cannot maintain the suit—that the act of 1861, in regard to the property of married women, made the wife of the plaintiff the sole owner of the corn, because it was raised on her land, and that the husband had no legal interest in it.
We desire to proceed cautiously in the construction of that act, because, although passed without much consideration, it involves interests of great magnitude, and questions of no little difficulty. All that we deem it necessary to say, in regard to the case before us, is this : that where the husband, as the head of the family, occupies and cultivates the land of the wife, he must be considered as occupying it with her consent, for the common benefit of the family; and the products of his toil upon such land, are as much his property, notwithstanding the act of 1861, as if he had occupied, as a tenant, land rented from some third person. Any other rule would plainly lead to great confusion, and open a wide door to fraud. In the ease at bar, the corn was planted, and at least partially raised, by the husband, and must be regarded as his property.
The question as to whether there was really more corn than the 425 bushels for which Elijah accounted, is left in some doubt by the evidence, but it is a question which the jury wore quite competent to decide, and we cannot say that the evidence does not sustain the verdict. Indeed we think the preponderance of evidence is in its favor.
Judqmmt affirmed.