Van Sickle, by her guardian, &c., agt. Van Sickle, 8 How. Pr. 265

By the Court-T. R. Strong, Justice. This case comes before the court under

section 372 of the Code, which declares that “ Parties to a question of difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same, to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceeding in good faith, to determine the rights of the parties.

The court shall thereupon hear and determine the case at a general term, and render -judgment thereon as if an action were depending.” The action which was commenced by the wife against the husband, must be deemed to be abandoned or at least suspended, and the case must be considered and determined entirely independent of it. No authority is contained in the

section referred to for the submission of actions; it relates solely to the submission of questions of difference, without action. If the submission of the case did not of itself work a discontinuance of the action, it must do so when followed by a judgment, and meanwhile suspend it. The court are not therefore called upon to decide whether the action was properly brought; or could have been maintained on the facts agreed on by the parties.

It is simply to determine the controversy upon the facts and render judgment thereon as if a proper action— one adapted to the case and the relations which the parties sustain to each other, was depending. The 11 question of difference ” in the case, is, as to the title to the property specified in the statement of facts; each party claiming to be the owner. By the common law as it stood prior to the act of April fall, 1848, “ for the more effectual protection of the property of married women,” it is clear that all the property would belong to the husband.

At common law, if a wife, at the time of her marriage, was seized of an estate of inheritance in land, her husband, upon the marriage, became seized of the freehold in right of the wife, and was entitled to the rents and profits during their joint lives. And all goods and chattels which the wife owned at the time of marriage vested immediately and absolutely in the husband. Under these rules the husband in the present case would have a perfect title to all the property in question.

The act referred to, has however, introduced an important change in respect to the legal effect of marriage, in operating a transfer of property then owned by the wife, and the issues and profits thereof to the husband, and it is under that act that the claim of the wife in this case is made. By the first

section it is provided, that “ The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents, issues, and profits thereof, shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.” The language used plainly discloses the intention of the Legislature.

The property real and personal, and the rents, issues, and profits thereof, are not to be subject to the control of the husband, hut are to continue the sole and separate property of the wife as if she were a single female. Her title, during the marriage, is to remain the same as if the marriage had not taken place. The effect of this provision, in the case before the court, is, that the wife is the owner of all the property in controversy, which belonged to her at the marriage, and all which can properly be considered rents, issues, or profits thereof.

This includes the red two years old heifer, one plow, fifteen drag teeth, four hundred and seventy-five pounds of pork, the lard, casks, vinegar barrel, one white hog, one lumber sleigh, one large kettle, and one barrel for pickles. The "heifer was raised after marriage from a cow owned by the wife at the time of the marriage. Part of the swine from which the pork was made, were also raised after the marriage, from a sow owned by the wife at the time of the marriage. The wife had at all times the possession, or right of possession of the animals, and she was entitled to the increase of them. Orser agt.

Storms, (9 Cow. 687; Story on Bailments, § 99,260.) Allowing the swine to be fattened and made into pork by the husband, did not impair her title. And there is nothing which shows, or from "which the court can infer, a sale or gift of any of this property by the wife to the husband. In regard to the property bought by the husband after marriage, I am satisfied that he is the owner. This includes the breeding sow and five pigs, the red and white cow, five drag teeth, vinegar, paper curtains, one pair of pillow cases, the buffalo robe, large kettle, cucumbers and stove.

The sow was in part paid for by the wife, and in part by wheat raised on the wife’s land, and in part by cash advanced by the husband. The cow was paid for in part by rent due for the use of the wife’s land; the balance was paid by the husband in cash. The payment in part by the wife, and from produce and rent of her property, did not give her any title, she not having been the purchaser.

It is proper to remark here, that the husband having been permitted by the wife to occupy her land, and receive and dispose of the products, the law will not, in the absence of proof of an express agreement that she should share in the products, or that he should account to her, imply such a contract, but will rather regard her as having made a gift of the use of the land to the husband, while such occupation continued. All the property in dispute belonging to the wife, and most of that belonging to the husband, appears to have been delivered to the former, under proceedings in the action which was commenced.

No judgment therefore can be rendered in her favor in this proceeding, further than that she has title to the property herein found to be hers. And I do not perceive that any judgment can be rendered in favor of the husband, further than that he has the title to the rest of the property. He, of course, has a right to take his property wherever he can find it. Judgment must be entered declaring the rights of the parties as before stated. Regarding the case as one of an equitable nature, the Court have a discretion as to the costs, which will be best exercised by denying costs to either party.