Gould v. Gould

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 be well questioned, whether, assuming the agreement to have been valid, it was not rescinded by the subsequent cohabitation or living together (Carson agt.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.

It has already been held in two actions in the supreme court—Gould agt. Vandervoort & Gould (December Gen. Term, 1859), and . Vandervoort agt. Gould (February Gen. Term, 1862), that the premises, the possession of which the plaintiff sought to recover by this *461action, are her separate property, and that her husband has no legal or equitable title therein. That point, therefore, may be assumed upon the facts of this case, and upon the respect which is due to these decisions, and the only question presented for our consideration is whether a married woman, who is living apart from her husband,, can against him maintain an action in the nature of an action of ejectment, to recover certain leasehold premises which are her separate property, and of which he holds the possession.

The rule of the common law established at least as early as the fifteenth century, and probably long before it, is in the language of Littleton Inst., 68, “ that the husband and the wife are in law but one person;” and as Sir William Blackstone interprets it (1 Com. 441), “ the very being or legal existence of the woman is suspended during marriage, or at least is incorporated and consolidated with that of the husband.” It follows that if they are in the eyes of the law but one person, that one cannot bring an action against the other, and in Marshall agt. Sutton (8 T. R. 545),' the rule of the common law was applied, even where by a mutual arrangement between them, the wife was living apart from the husband upon a separate maintenance. Lord Kenyon, in that case, after referring to the rule that man and wife are in law but one person, said : “This difficulty meets the plaintiff in limine. If it did not, and the parties were competent to contract at all, it would then become material to consider how far a compact could be valid which has for its object the contravention of the general policy of the law in settling the relations of domestic life, and which the public is interested to preserve, and which, without dissolving the bond of marriage, would place the parties in some respects in the condition of being single, and leave them in others subject to the consequences of being married, and without which, would introduce all the confusion and inconvenience Avhich must necessarily result from so anomalous and mixed a character;” and after *462remarking, that it cannot be in the power of persons by their private agreement to alter the character or condition which by law results from the state of marriage while it subsists, and from thence to infer rights of action and legal responsibilities, as consequences following from such alteration of condition and character, he declares that no power other than that of the legislature, can change that which by the common law of the land is established as the course of judicial proceedings. It followed as the logical result of this rule of the union of persons, that the wife if injured in her person or prpperty, could bring no action without the concurrence of her husband, and it had to be brought in his name as well as her own. (Russell agt. Lord, 1 Salk. 119; 1 Roll. Abr. 341; 1 Black. Com. 443.) And this unity of person brought with 'it many other disabilities, and a unity of interests and of rights in respect to both real and personal property, which were gradually adjusted and settled by a long course of adjudication.

Of the rule itself, but little at the present day can be said in its favor, except that it has been long settled and steadfastly adhered to. It did not exist in the enlightened system of Roman jurisprudence, from rvhich the common law has derived the most durable as well as the most valuable of its rules and maxims, nor has it ever prevailed in other countries, where the law as a science has been studied as profoundly, and interpreted as comprehensively as by the jurists of England. In all these countries the husband and wife are considered as two distinct persons, and may have separate estates, contracts, debts and injuries, and may also by agreement with each other have a community of interest; nor has this mode of considering them “ introduced the inconvenience and confusion,” which Lord Kenyon, in the case above cited, thought “ must necessarily result from so anomalous and mixed a character ” as that of regarding them in some respects as in “'the condition of being single, and in others subject to the disability of *463being married.” Courts are naturally, and perhaps wisely, apprehensive of the consequences of disturbing long settled rules, as it is not possible in all cases to forsee the effects that may follow, and this consideration is very apt, as in the case of Lord Kenyon, to beget a respect for the rule itself which it does not intrinsically deserve.

Dr. Hartley, a metaphysician of the last century, who wrote a book of some reputation entitled “ Observations upon Man,” supports the maxim of the English law that man and wife are to be regarded as but one person, by the broad declaration that the authority of the man over the wife is but a mark of our degenerate state, by reason of which dominion must be placed somewhere, and therefore in the man; and what the nature of it was under the common law may be told in the language of Mr. Macqueen: “ The wife was precluded from the enjoyment of property, for whatever belonged to her while single, or came to her while covert, passed absolutely to the husband, or fell under his dominion. In vulgar phrase, what was hers became his, and what was his remained his own; she could possess nothing to her separate use; she could alienate nothing in her life time; she could bequeath nothing by her death ” (Macqueen on Husband and Wife, 283). And Blaclcstone tells us that the husband might “ give his wife moderate correction, for as he is to answer for her misbehavior, the law thought it reasonable to entrust him with this power of restraining her by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices and children.” He says, however, that in the politer reign of Charles, II, this power of correction began to be doubted, but that in his [Blaclcstone’s) time, the lower ranks of people, from their affection for the old common law, still claimed and exerted their ancient privilege (1 Black. Com. 444).

The passages above quoted, indicate better than anything else, how little the policy of the English law respecting *464women is in consonance with the present views of society, or with the usages and laws of other countries. When Henry the First, in the twelfth century, by his courtesy, as the Mirror of Justice expressed it (§ 3), declared that all husbands who survived their wives, who were with child by them, should hold their wives’ inheritance forever, it was followed by the general suppression of the more liberal laws and customs respecting women, that prevailed among the Saxons, and by the institution of usages and laws conformable to the peculiar policy of the feudal system, a system which was simply, to use the expressive language of Mr. Jeremy, in his work upon Equity Jurisdiction, “ a scheme of plunder and oppression.” It was when this scheme was in its full perfection, that the maxim, that man and wife as respects their civil rights, are to be regarded but as one person, was conceived and laid down as a rule by which courts were-to be governed, and however possible it may have been in the very unnatural state of society to adhere to it as a principle of law, it was not possible to do so as society improved, and hence at an early period, to prevent oppression and wrong, it became necessary that the court of chancery should assume a jurisdiction in respect to married women and their rights, directly in conflict with the maxim of the feudal law. The chancellors professed to recognize it as the settled law of the land, but rested their jurisdiction upon the ground that there were cases to which it ought not to be applied. “ When the general maxims of the law,” says the writer of that early work, the Doctor and Student, “ be in any particular cases against the law of reason, it must be reformed by conscience ; that is to say, by the law of reason” (Chap. 16) ; and as as this power of reforming by conscience was lodged in the court of chancery, that court, though proceeding very cautiously at first, began gradually to exercise it largely for the protection of the rights of married women.

In the reign of Queen Elizabeth, Mary Larky, who was *465living apart from her husband, brought her suit in the court of chancery to compel the defendant to apply moneys in his hands to her maintenance, which were derived from the sale of her inheritance, and the defendant relying upon the maxim of the common law, demurred, upon the ground that she could not sue him without her husband, but the chancellor, Sir Thomas Bromley, overruled the demurrer, and compelled the defendant to answer (Cary's Reports, 124). And under Sir William Hatton, the court a few years after went a step further in disregard of the common law rule, and held that in that court a wife might sue her husband (Rivet agt. Lancaster, TothilVs Rep. 93), and though still regarding the rule of the common law as one to be enforced in proper cases, the courts of equity from thenceforward have, for all essential purposes, regarded the husband and wife as the civil law treats them, as distinct persons, capable, to use the language of Story, “ in a limited sense of contracting with each other, of suing each other, and of having separate estates, debts and interests ” (Story’s Eq. Juris. § 1368).

I have thus stated the rule, its history, and the reasons that have been assigned for it, that we may be the better enabled to judge whether the legislature intended or not, to change it, when they enacted “ that any married woman may while márried, sue and be sued in all matters having relation to her property which may be her sole and separate property, or which may hereafter come to her by descent, devise, bequest, or the gift of any person except her husband, in the same manner as if she were sole ” (Laws of N. Y. 1860, p. 158, § 1). The language of the legislature is certainly broad enough to have that effect, and such would necessarily be the effect of it, unless it is manifest from other considerations that such could not have been the intention of the legislature. It is very clear that this enactment has swept away one incident of the doctrine of the unity of person, that is that a wife could not sue except *466in equity, unless with the concurrence of her husband, and by his being joined with her. It certainly allows her to sue others, and permits others to sue her in any matter having relation to her separate property, in the same manner as if she were a single woman, and if the general words that she may sue or be sued in all matters relating to her separate property, are not to be understood as conferring a right to sue her husband in a matter relating to her property, the reason must be sought in some other part of the act, or in the previous legislation, or in some fundamental principle of right and justice, which we must suppose that the legislature did not intend to disregard. With the view of ascertaining whether there are any such reasons, it may be well to consider what was the state of the law before the passage of the statutes of 1848, 1849,. 1853 and 1860, and to what extent these statutes have altered it. As the law stood before their enactment, the personal property of a woman passed absolutely to her husband upon her marriage, nor could she by her own labor or service acquire any during its continuance, unless an express agreement was entered into with her husband before marriage, or after, by the interposition of trustees, authorizing her to carry on trade or business on her own account. Her husband was entitled to the rents and profits of her real estate, and after her death he had in it, if there were issue of the marriage, a life estate as tenant by the curtesy. The only way in which this effect could be avoided was by an ante-nuptial settlement, or by a gift, bequest or settlement of property to her separate use, which a court of equity could enforce as a trust; she could enter into no covenant or contract, though she could by agreement charge her estate with a debt or obligation which a court of equity would enforce, or an intention to charge it would be implied, where the consideration received was for the benefit of the estate.

As respects her separate estate when secured to her by *467a settlement, she was regarded in equity as a “feme sole,” as well in her dealings with her husband as with other persons ; she might sue or be sued by her husband, and might with her own money purchase a judgment against him, sell his real estate under an execution upon it, and become the purchaser (Strong agt. Skinner, 4 Bari. S. C. R. 546). And when there was no settlement, and the husband had to get the assistance of a court of equity to obtain property which had accrued to him in right of his wife, or where the wife was living separate from him, and not in a state of adultery, he would be required to make a reasonable settlement out of property derived through her for her maintenance and that of her children. The statutes of 1848, 1849, 1853 and 1860, have made many important changes. They have taken away from the husband any right to the personal property which the wife has at the time of her marriage, or to the rents, issues and profits of her real estate during marriage, and have, by implication, abolished the tenancy by curtesy. They would seem to have abrogated, also, that incident of the doctrine of the unity of the person; that if one was indebted to the other before marriage, the marriage operated to release the debt; and they have limited the liabilty of the husband for the debts of the wife contracted before marriage, to the extent only of the property he may acquire through her; and provided that a judgment obtained upon a'debt of that nature shall issue .against, and bind her separate estate and property only, and have relieved him from all liability upon contracts made in relation to her separate property, or in carrying on any trade or business. They have allowed her during marriage to take real or personal property, hold it to her sole and separate use; to acquire property by trade, business, labor or service, carried on or performed on her own account, and when so acquired, have secured it to her as her separate property. As respects both her real and personal property, she has the same power over *468it, and right of disposition, as if she were unmarried. These statutes have gone very far to sever the interest which the husband had in the property of the wife, both real and personal, but not entirely so, as in the event of the death of either without issue, it is provided that the survivor shall have a life estate in one-third of the real estate of which the other died seized; or if either die intestate, leaving minor children,; that the survivor shall take the whole of the real estate of the other during the minority of the-youngest child, and afterwards-a life estate of one-third in it.

This legislation has almost dispensed with the necessity hereafter of marriage settlements, as.it has left nothing to the husband but a contingent and possible interest in one-third of his wife’s real estate. It has taken away the necessity of compelling settlements for the maintenance of the wife, founded upon what was termed her equity, as she has now during her marriage the sole right to the use of her property, whether real or personal, and the effect of these changes must be to dispense hereafter with a large portion of that equitable jurisdiction in respect to a married woman’s property, or in enforcing what was equitable, where property had been derived through her, which was exercised for her protection and benefit by courts of equity.

“ Harried women,” says Selden, J., in Yale agt. 1lederer (22 JV*. Y. R.);- “ are not hereafter to be indebted to equity only for protection in the enjoyment of their separate estates. * * * They hold them by a legal title, and have a legal right to dispose of them. * * * There is no longer any foundation for the argument that as equity creates and protects these estates, equity has a right to control them. Eules which have grown up under this idea, which I regard to some extent illusory, will be hereafter inappropriate.” She has no longer .occasion for that protection which a court of equity afforded, as the husband is now deprived of that right to, or that control over her *469property which he previously possessed, and as where rights which did not before exist are conferred, the remedies which are adequate to maintain and secure them are regarded as conferred also. I can see no reason why a married woman should not have that remedy in a matter relating to her separate property, even as against her husband, which is the best adapted and the most adequate to enable her to enforce her rights. To that remedy she is entitled, and it is altogether immaterial whether it be a legal or an equitable one. Her rights are no longer depend-ant upon the favor and protection of a court of equity, but are founded upon positive legislation, which has greatly enlarged them, and if a legal remedy is the best adapted to enforce a right conferred upon her by statute, I see no reason why she should not have it even against her husband. We have necessarily retained the distinction between legal and equitable remedies, but have abolished that which existed between legal and equitable tribunals. We are no longer in the anomalous state of having one class of courts in which the rule of the common law that man and wife are but one person, was rigidly administered, and another in which it was disregarded, where the ends of justice required it. We have now but one form of tribunal, and one mode of procedure. The functions of the courts of common law and the court of chancery are now united in the same court, and the distinctions between an action .at law and suit in equity no longer exist.

Legal and equitable causes of action may be joined (Phillips agt. Gorham, 17 N. Y. R. 270) by a plaintiff in the same action, or a plaintiff may bring an action seeking a legal remedy, and the defendant may set up an equitable defence, and have affirmative equitable relief (Crary agt. Goodman, 12 N. Y. R. 266). “ The question in an action,” says Johnson, J., in the case last cited, “ is not whether the plaintiff has a legal or an equitable right, or the defendant a legal or an equitable defence against ■ the plaintiff’s *470claim, but whether according to the whole law of the land applicable to the case the plaintiff makes out the right which he seeks to establish, or the defendant shows that the plaintiff ought not to have the relief sought forand their views of the effect which the changes made by the Code have produced, have been reiterated and affirmed in The N. F. Ice Co. agt. The Northwestern Ins. Co. (23 N. Y. R. 375), and Barlow agt. Scott (24 Id. 40).

Mrs. Gould in the present case does not seek any equitable remedy, and had no occasion to frame her complaint with a view to that peculiar kind of relief. She has been living for the last eight years separate and apart from her husband, under an agreement in writing mutually entered into. The house and lot in Clinton Place, which she seeks to recover in this action, is a leasehold interest, constituting an estate for years, in which her husband has no contingent interest under the act of 1860, as it belongs not to her real but to her personal estate, and would upon her death go, not to her heirs, but to her executors (2 R. S. 82, § 6). It is her sole and separate property; she alone is entitled to the benefit and enjoyment of it, and her husband wrongfully withholds the possession of it from her, and enjoys, and has enjoyed whatever benefit has accrued from it while in his possession. She brings the action to recover it, and to recover what he has obtained by the use of it, or compensation fdr what she has lost by being deprived of it since 1855. Her remedy is, therefore, a legal one. The. Code makes provision for an action to recover property like this, with damages for the withholding of it. If the possession and use of the property was withheld from her by any other person than her husband, an action in the nature of the one she has brought would be the proper remedy (Darby agt. Callaghan (16 N. Y. R. 71), and to say that she shall not have such an action against her husband, where he is the wrong doer in keeping her out of the use and enjoyment of her property, would be to allow him to *471defeat the object of the statute, and to leave her without remedy. The statute has declared in express words that the property of a married woman “ shall not be suject to the interference or control of her husband,” and if we deny to Mrs. Gould her right of action, it would be equivalent to saying that it shall be.

The remedy by an action of this kind is a necessary result of the change which the statutes have made. It was not one. that was likely to arise in the exercise of equitable jurisdiction anterior to the passage of these statutes, for if there was no settlement, the husband was entitled during marriage to the use and possession of his wife’s real estate, and if there was a settlement, a court of equity interposed simply to administer it as a trust. Now, however, when her husband has no control over her property, and the wife is, or need be, no longer in the position of a cestui que trust, but holds her property by a legal title, she would have the same legal remedy where her husband interferes with or attempts to control it, that she would have against any other person. No inconvenience was experienced in equity from allowing husbands and wives to bring suits against each other, and none need be apprehended in affording a married woman a legal remedy, when it is the appropriate and the proper one. When the doctrine that a trust might be created in' property to the separate use of the wife, was first advanced in the courts of equity, it was strenuously objected to upon the ground that it would have a tendency to create divided interests and hostile feelings in married life, and Lord Alvanly, when master of the rolls, said in Lamb agt. Milnes (5 Vesey, Jr. 511), that many people disapproved very much of the course of courts of equity in making husband and wife separate persons, yet experience has shown that the apprehensions entertained were wholly groundless, and that this jurisdiction was attended by the most beneficent and salutary result. The act of 1860 also allows married women to *472bring actions to. recover damages for injuries to their person or character, against any person, or body corporate, and declares that the damages when so recovered, shall be their sole and separate property.

. It was held in Longendylce agt. Longendylce (Albany Gen. Term of Supreme Court, September, 1863), that this provision could not be regarded as allowing a wife to maintain an action of assault and. battery against her husband. Judge Hogeboom said, that the right to bring the action might be covered by the literal language of the statute, but he could not suppose that such was the intent of the legislature, as it would be contrary to the policy of the law, and destructive of that conjugal union and tranquility which it has always been the object of the law to guard and protect,; and after remarking that the object of these statutes was to add to and distinguish her rights to property as a feme sole, and to distinguish her property from her husband, he adds : “ the effect of giving so hard a construction to the act of 1860, might be to involve the husband and wife in perpetual controversy and litigation; to sow the seeds of perpetual domestic discord and broil; to produce the most discordant and conflicting interests of property between them, and to offer a bounty or temptation to the wife to seek encroachments upon her husband’s property, which would not only be at’war with domestic peace, but deprive her probably of those testamentary dispositions in her favor which he might otherwise be likely to make.” These are certainly grave considerations, and may be sufficient to justify the court in that case, when the husband and:Wife were living together when the action was brought, in its conclusion that the statute was not designed to extend to such a case, but they have no application or pertinency in a case like the one before us, when the husband, in direct contravention of the statute, keeps the wife out of the possession and enjoyment of property which belongs exclusively to her, and when there is ,no means of getting it *473away from him and of restoring it to her,, except by the assistance of the court.

The statutes which have conferred upon her an absolute and exclusive right to this property, have conferred upon her also the necessary remedy to obtain it; -the one she has sought will be attended by no inconvenience arising out of the relation of husband and wife. It is a very direct and appropriate one under the statutes, which says Brown, J., in Darby agt. Callaghan (supra) are remedial statutes, and should have a liberal construction.

The nonsuit should be set aside, and a new trial ordered.