7 Ala. 32 | Ala. | 1844
— The act of the Legislature passed for the benefit of Mrs. Hatfield is to the following effect: “ That from and after the passage of this act, it shall be lawful for Harriet Hatfield, of the county of Marengo, to take, receive and hold by purchase, gift or inheritance, any property, either real or personal, free from the hindrance, molestation, control or au
It is very certain that it was not intended by the Legislature that this act should have a retrospective operation, it cannot thereftfre have any effect upon any right of the husband or his creditors, which existed anterior to this act. The right, whatever its character may be, which was conveyed by the deed to Mrs. Hatfield, existed many years previous to the passage of the act, and was by the marriage, and subsequent reduction into possession, vested in the husband; the Court, therefore, erred in supposing that if possession of the slaves have not been taken by the husband and wife, until after the passage of the. act, it would not enure to the benefit of the husband. The possession when taken, must be referred to the authority under which it was taken, and as that existed lo'hg. anterior to the passage of this act, it is not affected by it. The question whether the slaves came Ijo the possession of the husband and wife before or after the passage of the act was unimportant; and it is not necessary to consider the propriety of the refusal of the Court to charge upon the presumption of possession, insisted on by the plaintiff. It is, however, contended, that conceding that the Court erred in its charge to the jury, yet as the right of the wife was a mere equitable interest, it was not the subject of sale by execution at law, and could only be reached by the creditor on application to a Court of Chancery.
Marriage is, in law, a gift to the husband of all the personal property of the wife, in which she has an actual or beneficial interest. If in possession, it vests immediately upon the marriage. If it be a chose in action, it must be reduced to the possession of the husband during the coverture, or it will survive to the wife on the death of the husband. If the interest of the wife be equitable in its nature, and to reduce it into possession, it is necessary to resort to a Court of Chancery, that Court will refuse its aid, unless the husband makes a suitable provision for her out of the fund sought to be recovered, [Bond
In England, the wife’s personal chose in action consists, usually, of either money in the hands of another, or stocks, and in such cases it is perfectly clear, that the husband, after having reduced it into possession, acquires'full dominion over it. The estate of the wife in this case, being the usufruct of the slaves during her life, is supposed in argument to present a different case. In our opinion there is no difference whatever between them as to the question now before the Court. If the wife’s chose in action is money in ■ the hands of a trustee : as for example, a legacy; or, if it be a security for the payment of an annual sum, as an annuity, or a certificate of stock or Bank shares; in either case, upon a reduction into possession, the husband is invested with full dominion over it; because his title to it is the same as would be that of his wife in possession, if she had Remained sole. In this case it is true the interest of the wife in the slaves is for life only, but that interest is as absolute and unqualified, as if it were for the life of the slave. Her right to the possession and services of the slave is subject to no contingency, nor to the control of any other person. The trustee in whom the legal title is vested for the purpose Of the remainder, has no more right to disturb her possession than a stranger. If he had refused to deliver the possession according to the stipulations of the-deed, he could by suit, either by the wife before marriage; or by the husband afterwards, -have been compelled to deliver it, after which he would be estopped by his own deed, from asserting any right to, or disturbance of the possession.
The case of a leasehold estate belonging to the wife, appears to furnish the closest analogy to this of any we can find in the English books, and it appears to be settled, that the husband may assign it, and that whether the estate be legal or equitable, the assignee will take it discharged from the equity of the wife. [Bates v. Dandy, 2 Atkins 207; Druce v. Dennison, 6 Vesey, 385; Shannon v. Bradstreet, 2 S. & Lefroy, 52; 2 Story Com. on Eq. 636, § 1410.
Again, it appears there is a difference between an absolute equitable interest in the wife, and an interest for life only.
It must be kept in mind that the principle we have been considering is applicable only, when the husband or his as-signee are endeavoring, by the aid of a Court of Chancery, to get possession of an equitable chose in action of the wife. If it be legal in its nature, so that the husband or his assignee is not compelled to seek the aid of Chancery to obtain the .possession, the equity of the wife to a settlement does not arise. Indeed the equity of the wife has no existence, but in the power of the Chancellor to refuse his aid, unless a provision is made for the wife. In this case, however, the trustee yielded the possession, and it is therefore entirely unimportant whether the interest thus reducecfinto possession, was legal or equitable; in either case, after such reduction by the husband into possession, it becomes his property to the full extent of the interests of his wife.
It is very clear that the effect, as it respects the husband’s right to the thing, must be the samé, whether he obtains possession of it by suit, or by the voluntary delivery of the person in possession. If in the case of an equitable chose in action, the trustee chooses, without suit, to put the husband in possession, the equity of the wife to a settlement would be gone. In Murray v. Lord Ellibank, 10 Vesey, 89, Lord.Eldon, speaking of an equitable chose in action, says, “ The husband where he cap, is entitled to lay hold of his wife’s property, and this Court will not interfere. Previously to a bill filed, a trustee who has the wife’s property, real or personal, may pay the rents and profits, and ma3i hand over the personal estate to the husband.” It is therefore, perfectly clear, that by this reduction into possession, in this case, the husband acquired all the interest which his wife had in the slaves, and it is entirely unimportant whether they came to the'possession of the wife before marriage, or were reduced to possession by the husband afterwards. What is this interest? It is an estate for the life of the wife, in the slaves in controversy. This
The result of our examination is, that this was such an interest as was the subject of sale by execution, if reduced to possession by the husband, and the Court erred in supposing that the act of 14th December, 1S41, was intended to affect the right of the husband to the interest of the wife in the slaves in controversy.
Let the judgment be reversed and the cause remanded.
— I dissent from the opinion delivered by Judge ORMOND, because I think this á very clear case for Mr. Banks on the question of title.
It seems to me, whatever may be the equities of Mrs. and Mr. H. under the deed of trust executed by Mrs. Smith, that Banks was thereby invested with the legal title to the slave in controversy, and that it must remain in him until the complete execution of the trust, unless he is removed by competent authority.
But it is said, the possession of the slave by H. after marriage, constitutes a legal title, which is subject to execution, the more especially, as the trusc, or use, will be considered as executed, so far as the life estate of Mrs. H. is concerned, by the delivery of it to her or her husband pursuant to the deed. This argument demands consideration, for upon it, as it seems to me, the decision of the Court is based.
The fact that the legal title is in Banks, would of itself be sufficient, in my opinion, to save the judgment from reversal; but as this point merely settles that the creditor cannot pursue the life interest of Mrs. H. at law, I am willing to concede it is of little value if the creditor has the right to subject her interest to the payment of this debt in any form; if he is entitled to sell her life estate without any qualification, it is of little importance whether he does it under execution at law, or by direction of a Court of equity. Indeed, in all cases, the leaning of my mind is to get at the result, when it is to be the same in either Court, as speedily and as cheaply as possible.
But I think there is no case, in which a creditor can at law pursue the equitable estate of the wife for the satisfaction of a debt due from her husband. It has been held by very high authority that a creditor, as such, cannot go into equity to subject either the choses in action, or equitable estate of the wife. [Gallego v. Gallego, 2 Brock. 285.] Waiving the distinction between a creditor, as such, or the assignee under a decree of bankruptcy or insolvency, and considering both to have the same rights, I shall consider what are the rights of the wife with respect to an estate held for her use by the intervention of a trustee; and I also lay out of view the value of property, inasmuch as I presume there is no such rule recognized in this country, as obtains in the English Equity Courts, where two
By the common law, marriage is a gift by the wife of all the personal chattels which she has in possession, and of all the choses in action to which she is entitled, if the husband shall reduce them to possession during the coverture. In relation to equitable estates, as the common law knew nothing about them, it was silent; and Courts of equity, looking beyond the mere arbitrary rule to its reason, have, by a gradual course of decision? built up a system to govern the equitable estates belonging to married women, which is termed the wife’s equity. Some eminent jurists have thought it not easy to ascertain the precise origin of this right of the wife, or the precise grounds on which it was first established. [Murray v. Elibank, 10 Vesey, 90; 13 Ib. 6; 2 Story’s Eq. 635, § 1407.] But others, with more propriety, in my opiuion, refer the jurisdiction to the reason which induced the common law to give the husband the wife’s property. [Elliott v. Cordell, 5 Madd. 155.] This reason is, that the husband is bound to support and maintain his wife, therefore as long as he does so, a Court of Equity will allow him to receive the income of his wife’s equitable estate. [2 Story Eq. 642, § 1415.] But, in general, he will not be permitted to receive the principal,- nor to assign it to a purchaser, even for a valuable consideration; nor will his assignee in bankruptcy or insolvency, take it discharged from the wife’s equity. He, and any one claiming under him, will be compelled to make an adequate settlement upon the wife and her children before receiving the principal sum. [2 Story on Eq. 639, and cases there cited, 641, § 1412, 1414; Kenny v. Udall, 5 John. Ch. 473, S. C. 3 Cow. 590 ; Elliott & Wife v. Waring, 5 Mon. 340 ; Bennett & Wife v. Dillingham, 2 Dana, 437.] So far is the future maintenance of the wife looked to in England, that there the husband will neither be permitted to sell his wife’s reversionary interest in an equitable estate, although she join in the sale. [Purdew v. Jackson, 1 Russ. 1; Horner v. Morton ; 3 Ib. 65.] Nor will the Court permit it to be conveyed to the husband absolutely, though she join in the petition. [Stiffe v. Everett, 1 Mylne, &c. 37.] The wife’s equitable estate in a term of years, is an exception to this rule, created by the House of Lords, against the opinion of the Chancellor.
I am not prepared to say how far the wife’s equity ought t O' be sustained here; but certainly it must be conceded that under peculiar circumstances she has it not only against her husband, but against any one claiming under him. This right o f the wife is incapable of examination or of adjustment in a court of law; and therefore, a creditor seeking to charge the equitable estate of the wife, in my opinion, must resort to a Court of equity. My judgment also leads me to the conclu - sion, that neither Hatfield or his wife have any legal estate in the slave in controversy, which can be successfully used by his creditor, to defeat the claim of the trustee, under the deed of Mrs. Smith,