¶1The act of 1849, in respect to married women, was designed for their safety and protection from the debts and contracts of the husband.
¶2It is declared that the rents, issues and profits of her property shall not be subject to the disposal of the husband, nor be liable for his debts, and shall continue her separate property as if she were a single woman.
¶3The inquiry is naturally suggested, whether the married woman loses the protection of this statute if she permits her husband to reside with her upon her own farm, and to work on it at his pleasure, assisting her in making it productive, without any agreement between them as to the ownership of the crops, or as to the compensation for his labor? To my mind, the answer is obvious.
¶4The principles of the common law, as expounded by Clancy and Roper, when attempted to be applied to the rents, issues and profits of her estate or her separate property, are repealed.
¶5It has become the duty of courts to execute the law, both in letter and spirit, and they are not to seek how not to do it.
¶6The demands of the husband's creditors are not to be elevated above the rights of the wife, under this statute. Her property and its income are exempted from that liability, in cases free from fraud. The creditor who sells or lends to a man who has not the means of making payment, does so at his own hazard, and he does not thereby make a case for construing this statute with strictness against the married woman. According to the argument of the learned justice who delivered the opinion at the General Term of the *299 Supreme Court, if the husband is permitted to reside with his wife, and sells or exchanges any of the property which is the produce of her farm, or the offspring of her live stock, without the express authority of the wife, it is to be deemed a gift or dedication to the husband of the articles sold or exchanged.
¶7This ruling maintains the ancient doctrine in respect to the personal estate of the wife, which has been permitted, voluntarily on her part, to come to the possession of her husband. Such a rule can be maintained only upon a narrow and strict construction of the statute. The fault of such a construction is that it permits the mischief to remain, which the statute was designed to remedy. The income and profits of her separate estate are not then free from liability for the debts of her husband.
¶8It is urged as a reason for this rule, that the labor of the husband is entitled to its reward, and that if the wife were single or unmarried, and Goodwin, the husband, had entered upon her land and raised a crop, without any agreement constituting them landlord and tenant, she could not have taken the crop, but would be entitled to recover only for the use and occupation of her land. "Surely," says the judge, "her relation to him as a wife, does not confer greater rights than she would have had as afeme sole."
¶9The case is speciously presented in this manner. Let us state the fact a little differently. Let Goodwin, a stranger, come upon the land where the owner, a feme sole, resided, and using her team and implements of husbandry to cultivate her land, would it not be implied that he worked for wages, or that he was the servant or agent of the owner? Surely, with the statute in her favor, her relation to the laborer, as a wife, should not deprive her of the benefit of the same rule.
¶10It is not competent for husband and wife to make an agreement between themselves for wages, nor for the renting of the wife's land. It should not be inferred from the want of an agreement of this nature, which cannot be enforced, that the wife consented that her husband should *300 be the owner of the produce of the land, or of the offspring of her live stock.
¶11The argument is, that we must imply that the wife consented that the husband should be owner of the crops, c., which were the products, in part, of his care and labor. The implication establishes a rule, and effects a result that deprives the wife of the rents, issues and profits of her property, and is subversive of the remedy incorporated in the statute, and reëstablishes the former mischief. The case of Buckley v.Wells, decided at a late term of this court, and not yet reported, of which the learned reporter of this court has furnished me a copy since the foregoing opinion was written, is a full authority for the views I have here expressed.
¶12For these reasons I think the General Term were in error, and that their judgment should be reversed, and that of the circuit be affirmed, with costs.