Jackson v. Hubbard

36 Conn. 10 | Conn. | 1869

Butler, J.

The first question presented, upon this record is, whether a trustee can maintain the action of replevin where the trust property is attached in a suit against him as an individual and as his individual property. We see no objection to the maintainance of such a suit; conceding that under our statute he could not maintain it in his individual capacity, we think he could maintain it in his capacity as trustee. The law distinguishes between the capacities, and makes him, as it would an executor, quoad the property, a person “ other than the defendant ” in the original suit, within the true intent and spirit of the statute.

2. The second point made is that the suit could not be maintained by the plaintiff because the attachment was imperfect. To this there is a perfect answer. The court has found that the defendant attached, as the property of the said John R. and James Jackson, the property in question, left a copy of the writ' at the town clerk’s office with his return thereon, describing the property as attached, and placed the properly in the custody of a keeper ; and the only defect in the proceedings relied upon consisted in the fact that the officer did not leave the copy of the writ in the office of the town clerk within twenty-four hours after the attachment. But all was done by the officer which it was essential for him to do to acquire and change the custody and possession of the property, and we are of opinion that the plaintiff was entitled to his action “eo inslanti” that the officer levied upon it and took such custody and possession. The plaintiff was not bound to wait until the attachment was completed in all its details, nor precluded from bringing his action by an error in those details. That error did not restore the possession, and the plaintiff was entitled to his action to regain the possession and custody of his property of which he was deprived ; and his right to the action was perfect when the officer of the law, under a process of law, transferred the custody from him to the law.

Under this point the defendant further claims that the husband, if trustee, could not maintain this action without joining the wife. But it was holden otherwise in Smith v. Chapell, 81 Conn., 589, and we are not disposed to overrule that case.

8. The third claim made by the defendant is that the crops in question were not the property of the plaintiff as trustee.

Under the first subdivision of the point he claims that, although the crops were raised on the farm of his wife, he had united with her in a promise to pay a mortgage on the farm and therefore had an interest in the land and crops. The claim is without foundation. There was an agreement to assume, but no actual perfected assumption or transfer of the mortgage lien. If the husband had paid or purchased the mortgage with his own money, he would have had an equitable interest or lien upon the land and a right of possession under it. But the mere agreement to assume could not give him any interest or right of possession that would vest the crops in him. And the court has found that the lien was actually paid to the mortgagee by the wife with her own funds, and prior to the time when the crops in question were raised.

The defendant under this point further claims, that on the facts found the plaintiff, as an individual, was entitled to the use of the land, and therefore that the crops were his individually, and liable to attachment for his debts ; and that on the trial he prayed the court so to decide, but the court did not so decide. In that we perceive no error. The facts as found are that the crops grew on land which was purchased and paid for by money which in part belonged to the wife at the time of her marriage and in part accrued to her afterward by inheritance. With the money so received she purchased real estate in Hartford, and afterward exchanged that real estate for the farm upon which the crops in question grew. And it is further found that the crops were raised by her, and at her expense. These facts were not sufficient to justify the claim made, or authorize the decision prayed for.

Full and complete protection to married women in their rights of property against creditors of the husband, is nor the established policy and settled law of the state. That result was attained gradually and with difficulty owing to an unwillingness to change the settled rules respecting the rights of the husband at common law:

The first act was passed in 1845, and protected the interest of the husband in the real estate of the wife which was hers at the time of the marriage, or accrued to her, by devise or inheritance, during coverture. The second, in 1849, protected the personal estate which should thereafter accrue to her during coverture by bequest or distribution, by vesting it in him as trustee for her. The third, in 1850, protected real estate conveyed to her during coverture in consideration of money or property acquired by her personal services during coverture, or while abandoned by her husband. The fourth, also in 1850, protected reinvestments of the avails of her real estate when sold. The fifth, in 1858, vested in her, for her sole use, all her property real and personal, when abandoned. A sixth} in 1855, extended the provisions of the act of 1849 to personal property owned by her at the time of her marriage. A seventh, in 1856, extended the provisions of the act of 1849 to patent rights, copyrights, pensions and grants and allowances by government. Another, in 1857, extended the provisions of the act of 1849 to property acquired during coverture by gift. Another,, in 1860, extended the act of 1850 respecting property acquired by her personal services, to reinvestments of the same. And so the law stood when the transaction in question took place, and until 1865, when the provisions of the act of 1845 were extended to real estate acquired during coverture by gift or purchase, and in 1866, when those of 1849 were extended and applied to all her personal property, whether acquired before or after marriage, and the policy was fully carried out and completed.

■ Now, conceding that the rights of these parties respecting the property in question were fixed, and must be determined by the law as it stood in 1864, we are satisfied that the crops in question vested in the husband as trustee.

It appears from the finding of facts that a part Of the money paid by the wife for the Hartford property accrued by inheritance during coverture and vested in the husband in trust by force of the act of 1849 ; and the balance was personal property which belonged to her at the time of the marriage and also vested in him in trust, in like manner, by force of the act of 1855. The Hartford property then was purchased entirely with money of the wife, held in trust under the provisions of the act of 1849. That property was exchanged for and invested in the Cromwell farm. There was a mortgage on that farm, which was subsequently discharged by moneys belonging to the wife, but when and how obtained, and what the interest of the husband was in them, does not appear upon the motion, and that fact cannot be taken into consideration to affect the enquiry.

We have then a case where real estate has been purchased in the name of the wife with funds held by the husband in trust for the wife under the law of 1849, and that exchanged for other real estate; and the question is whether the crops taken from the latter in 1864, vested in the husband in trust for the wife. It is apparent that the claim of the defendant that they did not, involves the proposition that the investment, by the husband, of moneys belonging to the wife, and held by him in trust, in real estate, in her name, extinguishes the trust; and that he takes an unincumbered life estate in the land, subject to alienation by him, and attachment by his creditors. We cannot yield our assent to such a claim. It is not in conformity with the principles of equity which relate to trusts; or the policy of our statutes and legislation ; and would open a door by which the husband could divert the property of the trust for the wife and her heirs, after his decease, and appropriate a transferable life estate to himself. As to his life estate we think the trust should be liolden to have continued.

4. It is claimed in the fourth place that the interest of the husband in the Cromwell farm was not protected because the investment under the statute of 184-9 should have been in his name as trustee. But we are of opinion that the provision so relied upon had relation to reinvestments of personal estate only.

For these reasons the motion for a new trial should be denied.

In this opinion the other judges concurred.