8 Ala. 146 | Ala. | 1845
The third section of the bankrupt act of 1841, enacts “ That all the property and rights of property, of every name and nature, whether real, personal or mixed; of every bankrupt, except as is hereinafter provided, who shall by a decree of the proper court be deelared to be a bankrupt within this act, shall by mere operation of law, ipso facto, from the time of such decree, be deemed to be divested out of such bankrupt, without any other act, assignment, or other conveyance whatsoever; and the same shall be vested by force of the same decree, in such assignee as from time to time shall be appointed by the proper Court for this purpose,” &c. “ And the assignee so appointed, shall be vested with all the rights, titles, powers and authority to sell manage and dispose of the same, and to sue for and defend the same, subject to the orders and direction of such court, as fully to all intents and purposes as if the same were vested in, or might be exercised by such bankrupt before or at the time of his bankruptcy declared as aforesaid; and all suits at law or in equity then pending, in which such bankrupt is a party, may be prosecuted or defended by such assignee to their final conclusion, in the same way and with the same effect as they might have been by such bankrupt,” &c. There is a proviso, which excepts from the provisions of this section, household and kitchen furniture, &c. not exceeding in value, in any case, the sum of three hundred dollars ; also the wearing apparel of the bankrupt, &c.
The terms of this enactment are exceedingly comprehensive, and operate not alone upon the property of the bankrupt, of which he is in possession, but upon actions pending, and mere rights of action; so that it is important to inquire, whether the husband at the time of the application tobe discharged as a bankrupt, had any right growing out of the cause of action stated in the declaration.
Marriage, it is said, operates as an absolute gift to the husband
The right of the husband to the wife’s choses in action, is recognized by law as something valuable, and may be disposed of by him, so as to cut off her right of survivorship, though they be not reduced into possession. Thus it may be barred by a settlement, either before or after marriage; by a release of the demand ; by an award of payment to the husband; by a judgment and execution at the suit of husband and wife ; by husband’s assignment for valuable consideration, &c. [Clancy on H. and Wife, 110-136.]
It is a rule of the English Common Law, that a married woman cannot possess personal property, and that every thing of this nature to which she is entitled at the time of her marriage, and which accrues in her right during its continuance, is vested solely in her hnsband ; they are but one person, and all the rights and duties which are her’s at the period of the marriage, become his during its continuance. Hence, it is said that a man cannot by any conveyance at the common law, limit an estate to his wife, and if a joint estate be conveyed to husband and wife, and a third person, the husband and wife would take a moiety. The unity of their persons, disables her to possess personal property, and the husband being the head of the wife, all that she hath belongs to him. [Clancy on H, and Wife, 1,2; 2 Steph.Com. 296; 2 Kent’s Com. 136.]
The release (as it is called) to Mrs. Butler by her husband, is not the mere abandonment or discharge of a right of action; whatever the terms employed may be. If operative at all, it must be as a conveyance among other things of the husband’s interest in, or right to the choscs in action of the wife, which have not been realized by him. Releases, it is said, frequently operate as conveyances. [2 Bouvier’s Die. tit. Release.] Assuming such to be the character of the writing under which the title of the wife is attempted to be sustained, and the conclusion necessarily follows, that it is inoperative at law for all purposes. The effect of a conveyance (we have seen) from the husband directly to the wife, is not to invest the latter with any rights which a court of law will recognize; but as it respects that forum, the thing granted remains in the same predicament in which it was before the deed was executed. If the husband convey directly to the wife, property of which he is in possession, if the conveyance could operate to invest the wife with the legal title, as her head, and in virtue of the unity of their persons, her title would immediately vest in him : and a conveyance by the husband to the wife of his interest in her choses in action, would be alike inoperative, to take from him the right to sue for or assign them. A Court of Equity, in such case, is alone competent to give effect to such deeds, if they can be upheld. [2 Brock. Rep. 285; 3 Paige’s R. 440; 4 id. 64; 10 Pet. Rep. 594.]
This brings us to the conclusion, that the wife, in the present case, can claim nothing from the release; and ourinquiriesmight now close, but we will add a few words upon the effect of the husband’s bankruptcy. It is said to be now settled, that neither the assignment produced by the bankruptcy, or the insolvency of the husband, will defeat the wife’s title by survivorship to her
The view we have taken, is conclusive of the cause as presented by the record; the consequence is, that the judgment of the Circuit Court must be affirmed.