It appears in this case that Mrs. Russell, being possessed of money, part of which had been given to her by her father, and part of which was the proceeds of her own earnings without any of the property of her husband entering into them, had loaned the same to him, and that he transferred the notes in question to her in payment.
By Gen. Stats., ch. 164, sec. 1, she was entitled to hold this money to her sole and separate use.
If, according to the doctrine of Albin v. Lord, 39 N.H. 196, she might lease her real estate, held to her separate use, to her husband, I can see no reason why she might not lend him her money. *Page 282
It is said, however, that by sec. 14, same statute, the husband cannot convey any property to his wife, and that therefore, however just the debt might be, the husband could not pay it because he could not give his wife a title to any of his property — money or other property.
By 1 Pars. on Cont. 345, and authorities cited, it appears that a husband may at common law make to his wife a valid gift of a chattel, so that such a conveyance is not prohibited at common law, and therefore permitted by our statute. This conveyance, therefore, being in this respect not different from a gift, excepting that being for a valid consideration it cannot be disturbed by creditors, is good, and the trustee must be discharged.
SMITH, J. Albin v. Lord, 39 N.H. 196, is authority to the point that the wife may lease real estate to her husband. If she may make a valid lease, it follows that any other contract which she may enter into with him, which is not in fraud of his creditors, must be a valid contract.* The power to contract implies, of course, the power to enforce compliance with its terms. Claremont Bank v. Clark, 46 N.H. 134. If, then, the wife can compel the husband to perform his contracts with her, there is no reason why he may not do voluntarily what she has the power to compel him to do. Russell, being indebted to his wife, had the right under our laws to prefer her over his other creditors if he chose, the same as he might have preferred any other one or more of his creditors by voluntary payment of their claims, if he had chosen to do that. It is, of course, understood (and the case so finds) that the debt to his wife was a bona fide debt.
In re Richardson Cooper, in the district court of the United States for the district of New Hampshire, it was held, by CLARK, J., that a wife, having a valid claim against a firm of which her husband was a member, might prove it against their estate in bankruptcy. Burnham, assignee, v. Russell and wife (the same defendants who are the principal defendant and claimant in this suit), was a bill in equity brought by the assignee of Lahey Russell, bankrupts, in the district court of the United States for this district, to recover the sum of $2,000 in money which Russell had paid to his wife — the same money referred to in this case, and the same notes for which it is sought to charge *Page 283 Murray as trustee of the claimant's husband in this suit. The bill was dismissed by Judge CLARK upon the ground that the complainant had failed to show that Lahey Russell were insolvent, or contemplated insolvency, or that Mrs. Russell knew or had reasonable cause to believe them insolvent, or that the payment to her was in fraud of the bankrupt act, — the learned judge thereby clearly recognizing the right of the husband to pay a valid debt due from him to his wife, if not done in fraud of the bankrupt act.
The trustee must be discharged.
* The opinion delivered in Albin v. Lord was very elaborate. It was very much abridged for publication. Judge MINOT, who tried the cause before Judge FRENCH in the court of common pleas, March term, 1859, and argued it in the law term of the supreme court, strenuously contended that if the construction finally given should be engrafted upon the statute, the wife could not only sue her husband as if he were a stranger, but could in a large class of causes arrest him and throw him into jail. The court conceded that this would be the necessary and logical result of their decision, but said that this would not be a sufficient warrant for a construction which, as it seemed to them, would nullify the legislative will. It is well known that Mr. Justice BARTLETT, individually, always denied the soundness of the decision, but he never claimed that it did not cover cases like the present. REPORTER.