Moore v. Richardson

37 Me. 438 | Me. | 1854

Hathaway, J.

— The petitioner, the' widow of William Moore, prays partition of certain real estate of which her father, Andrew Mackie, died seized, and of which she claims one eighth as her inheritance. When the petitioner married William Moore she was in debt, and a suit was instituted against her and her husband, and prosecuted to final judgment, and execution thereon levied upon a portion of her inheritance, July 27, 1838, for satisfaction of her debt contracted before coverture. There is no question made between the parties, that if the levy was not effectual to transfer the estate levied upon, to the judgment creditor, she is entitled to one eighth; and if it was effectual for that purpose, she is entitled to but one fifty-sixth.

By virtue of their marriage, Moore acquired a life estate in his wife’s 1 and; the reversion was hers. By statute of 1821, c. 60, § 1, it is provided, that “all rights in equity of redeeming lands mortgaged, reversions or the remainder shall be liable to attachment upon mesne process, and to be taken by execution upon 'judgment recovered for the payment of the just debts of the mortgager or the owner.”And such is the law in Massachusetts. Williams v. Amory, 14 Mass. 20; Atkins v. Bean & als. 14 Mass. 404. And it has been well decided in Vermont, that the wife’s land might be taken in execution, in satisfaction of her debts contracted before marriage. Fox v. Hatch, 14 Verm. 340, cited in argument. The description in the levy, of the land levied upon, as “the property of the said William and Agnes, being her right of inheritance,” is broad enough to embrace the husband’s freehold and the wife’s reversion.

The levy was a valid transfer of .the land levied upon, and the petitioner is entitled to one fifty-sixth part of the premises only, and partition is ordered accordingly.

The respondents are entitled to costs by the statute.

Shepley, C. J., and Howard, Rice and Cutting, J. J., concurred.