Hockaday v. Sallee

26 Mo. 219 | Mo. | 1858

Richardson, Judge,

delivered the opinion of the court.

.The questions to be considered, in this case are unaffected by the apt of March 5, 1849, for the benefit of married women, because the debt on which the judgment was rendered was incurred before the passage of the act. (Cunningham v. Gray, 20 Mo. 170; Tally v. Thompson, id. 277.)

The note executed by the garnishee and assigned to Mrs. Jamison during her coverture must be treated in all respects as if it had been made payable directly to her ; and in reference to the power of the husband over the wife’s dioses in action, it may be observed that there is a difference between such as accrue before and after marriage. At common law a note executed to the wife during coverture becomes the absolute property of the husband, but subject to her right of survivorship in the event of his death before he reduces it to his possession. He may sue on it without joining her in the action; (Chitt. Plead. 33;) he can transfer it by his simple endorsement and thus defeat her interest; (1 Bright, Husb. & Wife, 38;) or he may release it; (Shep. Touch. 333;) and a general assignment in bankruptcy by the husband will carry the wife’s chose in action to the assignee, though subject to her right of survivorship if the husband dies before the assignees reduce it to their possession; for they acquire only the right which the husband had before the bankruptcy. (2 Kent, 135.) While living he has the absolute control over it and, with the power of converting it at any time, may appropriate the proceeds to his own use. His creditors may secure this right by garnishment or attachment on execution, which will operate as a statutory assignment of the husband’s interest; but as the garnishment only creates a lien, the creditor will obtain no better right than the husband had, and the wife’s right of survivorship will not be defeated if the husband dies before judgment. (Shuttleworth v. Noyes, 8 Mass. 229; Commonwealth v. Manley, 12 Pick. 176; Holbrook v. Waters, 19 Pick. 354; Wheeler v. Bowen, 20 Pick. 567; Strong v. Smith, 1 Metc. 476.)

The note, then, assigned to Mrs. Jamison becamjj attachment for her husband’s debts independent oifany quesP* tion of fraud or resulting trust, and this view cStJ renders it unnecessary for us to consider the exception taken' to the admissibility of testimony.

The court properly directed the jury in the first instruction given for the plaintiff as to the form of the verdict, and the verdict being in accordance with the instruction is in proper form. The other judges concurring, the judgment will be affirmed.