We do not think it necessary to examine into the merits of the settlement between the husband and Dawson; for,
however the validity of an assignment by the husband of the wife's legal or equitable chose in action might depend upon its consideration, when set up in opposition to her right by survivorship to the subject then outstanding, the husband may certainly at law release, without consideration, to the wife's debtor, and also in equity, unless she has a right in this Court to have her equitable choses set apart as a separate provision for her and her family. This case is brought to that point, on which the Court is more ready to place it, because the case of Bryan v.Bryan, 16 N.C. 47, has been supposed in argument not to lay down the rule then adopted, as a general principle. We have considered that case, and although some exceptions are supposed by Chief Justice Taylor,arguendo, to be under certain circumstances admissible, yet no case can be supposed which could more emphatically call for the interposition of the court than the one then under consideration. The husband was insolvent, and had made no settlement on the wife, but had converted a larger part of the proceeds of her real estate, and she had been bred in affluence, and had brought into the family a large fortune. This was admitted by the counsel for the defendant to be an irresistible case, if the equity of the wife raised by the British courts was to be acknowledged in ours, and it seems to us that the admission was not inadvertent or beyond the truth. Yet the Court refused the relief, and that not upon the ground that the husband had released or disposed of the wife's interest by assignment, but that Sellers, who held the fund, was a creditor of the husband to a larger amount than her share. The judgment of the Court, therefore, went as far as it could do to establish the general principle; and we know that the other judges who then sat in the (385) Court intended to adopt the rule then acted on, universally, as being appropriate to the habits of our people and the state of our society, and a necessary result from the indefeasible interest given by our law to the wife in the personal estate of the husband.
The same may be said of the case before us, that the merits of the wife are great, and the demerits of the husband glaring, and that the Court would protect her if we could in any case intercept the exercise of the marital rights of the husband. But the authority of the decision in Bryanv. Bryan is conclusive against it, and therefore the petition must be dismissed, and the sum raised on the execution and now in court refunded to the defendant.
PER CURIAM. Dismiss petition.
Cited: Allen v. Allen, 41 N.C. 295; Arrington v. Yarborough, 54 N.C. 81.