Duncan v. Roselle

Lowe, J.

Whether the premises in dispute were purchased with the husband’s means, derived from the proceeds of his Ohio property, or with the money of the wife earned as a dressmaker in Burlington, is a question concerning which the evidence is somewhat conflicting, with a preponderance, perhaps, in favor of the latter proposition, yet in respect to which we feel relieved from expressing any positive opinion, because we are constrained to hold that whether the one or the other is so is an immaterial matter in this controversy. The marital rights of the husband and wife, as they exist at common law, are undoubtedly changed and modified by the Code; not in all particulars, but in a prescribed or to a limited extent.

For instance, personal property or specific articles of personal property, or money, or things in action, which the wife may bring into the family at marriage, or which, after coverture, may be derived from her parents by gift or devise, or from other third persons, for a consideration originating outside of the marital relation, does not at once, under the statute, vest in the husband, but she may hold such property as her own, exempt from her husband’s debts, even although she leave the same under his control, provided, nevertheless, she complies with the provisions of the statute in giving notice, and duly filing her right thereto for record, &c.

This, with some other minor or less important provisions, is the general scope of the changes which the statute has made upon the common law on this subject; and it does not in terms or by necessary implication provide that the money or other property which the wife may acquire by her own labor and industry during coverture, whilst she is receiving the protection and support of her husband, shall vest in herself or be exempt from her husband’s debts. But, on the other hand, by the principles of the common law, the ownership thereof did vest at once in her husband, and should be'made available for the payment of his debts. In all such cases we are to follow, first, the rule prescribed by the statute, if it has laid one down; if not, then the doctrine which obtains at common law, by the rules of which, in the case before us, the right to and property in the money which Lucinda earned in dressmaking vested at once in her husband; and • if she purchased real estate with it, taking the title in her own name, she holds the property simply in trust for her husband and his creditors. Such being the law, the decree in this case should have been for the plaintiff, subjecting the property in controversy to the satisfaction of his execution. Such a decree will be entered in this Court, and the judgment below

Reversed.