So the common-law incidents of marriage are swept away only by express enactments. The ability of the wife to make contracts is limited. Her general engagements are absolutely void, and she can bind herself by contract only as she is expressly authorized to do so by statute. A husband still has his common-law right of tenancy by the curtesy. Although § 7 of the Act of 1860 authorizes a married woman to maintain an action against any person for an injury to her person or character, yet we have held that she cannot maintain an action against her husband for such an injury, and so it was held, notwithstanding the acts of 1848, 1849 and 1860, that the common-law disability of husband and wife growing out of their unity of person to convey to each other still existed. White v. IVager, 25 N. Y. 333; Winans et al. v. Peebles et a/., 32 Id. 423; Meeker v. Wright, 76 Id. 262, 270. It is believed also that the common-law rule as to the liability of the husband for the torts and crimes of his wife are still substantially in force.
[After discussing Goelet v. Gori, 31 Barb. 314; Farmers and Me-chanics' National Bank of Rochester v. Gregory, 49 Barb. 155; Miller v. Miller, 9 Abb. Pr. (N. S.) 444; Freeman v. Barber, 3 N. Y. Sup. Ct. (T. & C.) 574; Beach v. Hollister, 3 Hun 519, and Ward v. Crum, 54 How. Pr. 95, the court proceeds:]
It is true that these decisions are not absolutely binding upon this court, but they settled the law in the Supreme Court. For twenty years after 1849 there was no decision or published opinion in this State in conflict with them, and they are, under the circumstances, entitled to great weight here. They undoubtedly lay down a rule which has been followed and observed by conveyancers, and we have no doubt that property to the value of millions is now held under conveyances made in reliance upon the common-law rule as thus expounded. These decisions were never questioned in this State by any court until the decision in the case of Meeker v. Wright, which was rendered in this court in 1879 (76 N. Y. 262). In that case the learned judge writing the opinion reached the conclusion that the common-law rule governing conveyances to husband and wife had been abrogated by the modern legislation in this State. But that portion of the opinion was not concurred in by a majority of the judges. The views of that judge were very forcibly and ably expressed, and they have been carefully reconsidered. They do not convince us that the conclusions he reached should be adopted by this court. That case is supposed to have unsettled the law somewhat in this State. In Feely v. Buckley, 28 Hun 451, it was held upon its authority, by a divided court, that tenancy by the entirety is abrogated by the Married Woman's Acts; and upon the same authority it is said a similar holding was made in Zorntlein v. Brain, decided in the Superior Court of New York, in January of this year, by a divided court. It is also said that in Forsyth v. McCall, in the fourth department in June, 1880, and in Meeker v. Wright, after a new trial, in the third department, in April, 1882, it was decided that the common-law rule was not abrogated. 27 Albany Law Journal, 199. And these decisions, together with the one which is now under review, are all the decisions made in this State since the case of Meeker v. Wright was in this court which have come to our attention.
Legislation similar to that which exists in this State, as to the rights and property of married women, exists in many of the States of the Union, and the decisions are nearly uniform in all the other States where the question has arisen, that a conveyance to husband and wife has the common-law effect, notwithstanding such legislation. Without citing all, we call attention to the following cases and authorities: Bates v. Seeley, 46 Penn. St. 248; French v. Mahan, 56 Id. 289; Diver v. Diver, Id. 106; Fisher v. Peovin, 25 Mich. 350; McDuff v. Beauchamy, 50 Miss. 531; Washburn v. Burns, 34 N. J. 18; Chandler v. Cheney, 37 Ind. 391; Morburgh v. Cole, 49 Md. 402, 33 Am. Rep. 266; Bennett v. Child, 19 Wis. 362; Robinson v. Eagle,
29 Ark: 202; 1 Washb. on Real Prop. (3d ed.)577; Schouler on Husband and Wife, §§ 397, 39S; 1 Bishop on the Laws of Married Women, 438, §§ 613, etc.; 2 Id. 284, § 284. In the last section the learned author says: "Under the late married woman's statutes, the effect of which is to prevent any part of the wife's interest in her lands passing to her husband, the rule of the common law, by force of which the two became tenants by the entirety of lands conveyed to both, is not changed," and he says: "The reason for the doctrine, looking at the question in the light of legal principle, is, that the statutes which preserve to married women their separate rights of property do not have, or profess to have, any effect upon the capacity of the wife to take property, or the manner of her taking it, but when she does take it they simply preserve the right in her, to her separate use, forbidding it to pass in part or in full to her husband under the rules of the unwritten law. If, then, land is conveyed to a husband and his wife, they take precisely as at the common law - that is, as tenants by the entirety." In Diver v. Diver, Strong, J., said: "But it is said the Act of 1848, by destroying the legal unity of the husband and wife, has converted such an estate into a tenancy in common; that is, that such a deed conveys a different estate from that which the same deed would have created if made prior to the passage of the act. To this we cannot assent. It mistakes alike the letter and the spirit of the statute, imputing to it a purpose never intended. The design of the legislature was single. It was not to destroy the oneness of husband and wife, but to protect the wife's property, by removing it from under the dominion of the husband. To effect this object she was enabled to own, use and enjoy her property, if hers before marriage, as fully after marriage as before, and the act declared that if her property accrued to her after marriage, it should be owned, used and enjoyed by her as her own separate property, exempt from liability for the debts and engagements of her husband. All this had in view the enjoyment of that which is hers, not the force and effect of the instrument by which an estate may be granted to her. It has nothing to do with the nature of the estate. The act does not operate upon rights accruing to her until after they have accrued. It takes such rights of property as it finds them, and regulates the enjoyment, that is the enjoyment of the estate after it has vested in the wife." At common law, where the estate was conveyed to husband and wife, as above stated, the husband had the control and use of the property during their joint lives. It is unnecessary now to determine whether, under the Married Woman's Acts in this State, the husband still has such a right in real estate conveyed to him and his wife jointly. It was said in some of the authorities cited that the statutes had changed that common-law rule, and that while husband and wife, in conveyances to them jointly, each took the entirety, yet that the land could not be sold for the husband's debts, or the use and profits thereof during their joint lives be entirely appropriated by him. It is not important in this case to determine what the relation of the wife to the land, in such a case, now is, during the life of her husband.