Bruce v. Thompson, 26 Vt. 741

Bruce v. Thompson

26 Vt. 741 | Vt. | 1854

The opinion of the court was delivered by

Redeield, Ch. J.

This action is brought to recover the value of property, sold by the defendant as an officer, upon execution, for the sole debt of the husband, the property being the annual products of the wife’s land, in possession, and carried on at the expense of the husband. The parties, before their intermarriage, made, in contemplation of such an event, what they considered a marriage settlement which was a stipulation between themselves, merely, and without the intervention of trustees, that the wife *746should enjoy her separate property, without interference on the part of the husband. The statute law of the state in force, at the time of the crops being grown, and which it is claimed, controls the matter was as follows : “ The rents, issues, and profits of the real ■ estate of any married woman, and the interest of the husband, in her right in any real estate, shall, during coverture, be exempt from attachment, or levy of execution, for the sole debt of the husband, and no conveyance by such husband, of such rents, issues, and profits, &c., shall be valid, unless by déed of husband and wife,” executed according to the general laws of the state.

It is claimed, first, that the marriage settlement, as it is called, was sufficient to exempt the annual crops of the wife’s land from attachment and levy of execution, on the husband’s debt. But such-a contract, without the intervention of trustees, will not, at law certainly, have that effect. Such a contractso executed, is incomplete. It is, at most, but an agreement to make a suitable marriage settlement. And the parties, beneficially interested, whether the wife or children, may, on application to a court of equity, compel the execution of such a settlement, as the court shall deem reasonable, which will then be effective to protect the property at law. 2 Story’s Eq. Jurisp. § 983, 999.

In regard to the effect of the statute, which is similar to those «f some of the other American states, there seems to have been, ito some extent, a popular impression, that it would exempt the annual products of the wife’s land, from the control of the husband ■or his creditors. Such was the decision of the court below, and such the impression of one member of this court, at the first argument. But a careful examination of the terms of the statute, cannot fail, we think, to convince all, that the words used have no very marked fitness, to express the yearly products of land, which are the joint results of labor and the use of the land.

Rents, issues and profits, more commonly, in the books, certainly -signify a chattel real interest in land, a kind of estate growing out of the land for life, or years, producing an annual or other rent. And in this statute, it is so connected with “ the interest of the husband in her right in any real estate,” so as to induce «the the suspicion, certáinly, that the legislature supposed they were only limiting the husband’s control over such estate, as he would upon the marriage, acquire in the wife’s land, and really doing *747nothing more than securing to the wife and family, the use of the wife’s chattels real, and the husband’s estate in her lands, whether during coverture or by the courtesy. These estates, (although growing out of the wife’s lands,) by the common law, upon ' the marriage, become vested in the husband, and he may sell, assign, mortgage, or otherwise dispose of them. 2 Kent’s Com. 113. They may, too, probably he levied upon, for the sole5ebt of the husband, or might have been before this statute. And the statute of this state, giving the right generally to levy, upon leasehold estates, uses almost the same terms as the statute under consideration. “ The rents, issues, and profits of real estate, leased for life or years, shall be liable to be taken on executionthus showing that the two statutes, might, very likely, have adopted the same form of expression, de industria. Rents, issues, and profits, too, apply only to net profits, and such as are of the nature of rent, which is, as every one understands, a reditus or return by some one, holding the land of another, for which he owes such return. Now the husband holds the wife’s land, in no such tenure, hut in his own right as husband, owing a return to no one. It is observable, too, that the legislature, in providing a homestead for the family, and securing its annual products for their support, use appropriate and specific language by providing that the homestead, “ and the yearly products thereof,” shall be exempt from execution, and that the husband shall not alienate or mortgage the homestead, hut no provision is made against conveying the yearly products of the homestead.

And if we regard, in the statute under consideration, the terms “ rents, issues, and profits,” a's equivalent to yearly products, we must all allow, that this statute has, in express terms, required the transfer of such yearly products, to be by deed of the husband and wife jointly, and to give effect to such provision, we must hold, that any other mode of alienation, even for value, cash in hand, if you please, or necessaries for the family, or .to pay the very laborers upon the land, is altogether void.

The very use of the term conveyance, in the statute, with reference to this intei’est, shows the probable application of the term to some estate in the realty, for it is scarcely supposable, that the legislature would have used such a term, requix-ing it to be executed, with all the solemnities of other deeds of real estate, for the transfer of mere personal chattels.

*748It may be supposed by some, perhaps, that this construction gives less adequate protection to the wife’s property, which seems of late to be regarded as a very cherished object by all. But we can only say, it affords all the protection which the law gives at present, and to carry the protection the length claimed, would certainly be attended with serious inconvenience, and often produce injustice, and for one, I am ready to say, I have no expectation, the legislature ever supposed they were making any such provision, or that they ever will, so far as the conveyance or transfer 'of the yearly products of the wife’s land is concerned.

Judgment reversed, and case remanded.