Kaufman Baum et al., Respondents, v. Elizabeth Mullen, Appellant

Kaufman Baum et al., Respondents, v. Elizabeth Mullen, Appellant. In an action against a married woman for fraud in a contract for the sale of her real estate, made by her husband as her agent, it is not necessary tó join the husband. It is a matter “ having relation” to her sole and separate property, and under the provisions of the statute of 1860, as amended in 1863 (chap. 173, Laws of 1863), she may be sued the same as if she were a feme sole. These statutes have not altered the common-law liability of- the husband for the personal torts of his wife, but when such torts are committed in the management and control of her separate property the rule is changed, and she only is liable. (Argued February 23, 1872; decided February 27, 1872.) Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming judgment entered upon verdict in favor of plaintiffs, affirming order denying motion for new trial. This action was brought to recover damages for alleged fraud in the sale of land. .The representations claimed to be fraudulent were made by the husband of the defendant, he acting as her agent in the sale of the premises, the title of which was in her. At the close of the evidence, defendant’s counsel moved for dismissal of complaint, on the ground that the action could not be maintained against defendant without joining her husband as defendant. Motion denied and defendant excepted. J. 3. Bergen for appellant. The husband should have been joined. He is not relieved by the acts of 1860 and 1862; Laws 1860, p. 159; § 8 of 1862, p. 344, § 4; 345, § 5. (Horton v. Payne, 27 How., 374 ; 45 Barb., 421; Malone v. Stilwell, 15 Abb., 421; Schau v. Putscher, 25 How., 463; Commissioners of Excise v. Keller, 20 How., 280; Cassin v. Delaney, 38 N. Y., 178.) E. D. Culmer for respondents. The husband not a necessary party. (See act 1862, pp. 344, 345; 45 Barb., 425; 35 id., 78; 52 id., 141; 24 How., 31; 38 id., 37; 8 Abb., N. S., 254; 2 id., 455; Rowe v. Smith, 55 Barb., 417.) [MAJORITY — Church, Ch. J.] Church, Ch. J. The only question presented for onr decision is whether the joinder of the husband with the wife is necessary in an action for fraud in a contract for the sale of the real estate of the latter made by the former as the agent of his wife We are of opinion that such joinder is not necessary. The statutes of 1860 and 1862 provide that “ the wife may sue and he sued in all matters having relation to her sole and separate property, the same as if she were sole,” and judgment may be enforced against her separate property as if she were sole. (Laws of 1862, p. 344.) The counsel for the appellant claims that at common law -the husband is liable for the torts of the wife, and that this act has never been changed.. This position is correct. The statute has not altered the common-law liability of the husband for the mere personal torts of the wife, but when such torts are committed in the management and control of her separate property, the rule is changed, and she is liable the same as if she was unmarried, and can be sued in the same manner. In this case it is found that by the fraudulent representations of the husband,, acting as the agent of the wife in contracting for the sale of her property, $200 was received, which it-is presumed was paid to her. She is responsible for the fraud, and has had the avails of it. The action is clearly for “ matters having relation to her sole and separate property.” They relate to the management and disposition of her property. The circumstance that the fraud was committed by her husband, acting as her agent, does not impair her liability. She had a right to employ her husband as agent, and, while acting as such in relation to her separate property, her liability for his acts is precisely the same as it would be for the liability of any other agent. The statute has in a great degree abrogated the respective common-law rights, obligations and duties of husband and wife growing out of the marriage relation, as it respects property which the wife is permitted to own. As to such property, she is to be treated as unmarried. All the rights of an unmarried woman are conferred upon her, and all correlative obligations are imposed. The statute has declared equality of rights, and equality of obligations and duties, and courts have no alternative but to enforce both. The wife is liable in the same manner and to the same extent for frauds or torts committed in the management of her property, as she is upon contracts relating to it, and just as liable for fraudulent representations upon the sale of it as upon a covenant for quiet enjoyment. In Rowe v. Smith (45 N. Y., 280) this court held that the wife was liable for trespass committed by her hogs and cattle escaping from her lands upon the premises of another, and the same principle is applicable to this case. But the principle here decided does not affect the common-law liability of the husband for the mere personal torts of the wife disconnected from the management of her separate property. The judgment must be affirmed with costs. All concur. Folgkee, J., absent. Judgment affirmed.