Southard v. Plummer

Wells, J. —

Both the real and personal property in reference to which the trespass is alleged to have been committed, belonged to the wife of the plaintiff at the time of the coverture, and when the acts, of which complaint is made, were done by the defendants. They acted under the authority of the plaintiff’s wife, and the question presented is, whether they were justified in conforming to her orders and directions.

By the common law the husband has a freehold estate in the real property of the wife, and the use and control of it, and by the marriage the title to personal chattels in her possession passes to him.

By the Act of March 22, 1844, c. 117, § 2, it is provided, that “ hereafter when any woman possessed of property, real or personal, shall marry, such property shall continue to her notwithstanding her coverture, and she shall have, hold and possess the same, as her separate property, exempt from any liability for the debts or contracts of the husband.”

The phrase “ such property shall continue to her notwithstanding her coverture,” implies that it shall remain her property, and that the coverture shall not deprive her of it, and the possession of it “ as her separate property” gives her an entire dominion over it. This language could not have been employed simply for the purpose of exempting the property from attachment for the debts of the husband, and from liability on his contracts. It is very evident, that something more was intended, that her right of property and control over it should remain, not only against the creditors and contracts of the husband, but against the husband himself.

This construction is strengthened by the terms of the third section of the Act, which provides, that “ Any married woman possessing property by virtue of this Act, may release to the husband the right of control of such property, and he may receive and dispose of the income thereof; so long as the same shall be appropriated for the mutual benefit of the parties.” The control of the property having been given to the wife, it then became necessary by further legislation to authorize her to release it to the husband.

And as the wife of the plaintiff did not release it to him, it continued to her and she could direct the defendants to enter upon the real estate, and take and carry away the personal property. It would be doing violence to the language and spirit of the Act to say, that it did not confer upon the wife the 'control of the property independently of her husband. And she might exercise that control herself personally, or through the agency of another. The statute having given to her the direction and management of her property, would necessarily and by implication clothe her with all the power requisite for the performance of those acts, and would justify the defendants, who were employed by her.

Exceptions overruled.

Howard and Hathaway, J. J., concurred. Rice, J. dissented.