Rice v. Hoffman ex rel. Hoffman

35 Md. 344 | Md. | 1872

Robinson, J.,

delivered the opinion of the Court.

Philip Horn died in 1834, seized and possessed of a large real and personal estate. Caroline A. Hoffman, who intermarried with Ephraim Hoffman in 1845, is a daughter of the said Philip, and entitled to an undivided one-ninth part of said property.

Under a bill filed for partition in 1869, part of the real and leasehold estate of the said Philip was sold, and the question is, whether the distributive share of Caroline A. Hoffman, arising from the sale thereof, is liable to execution for the debts of her husband, contracted in 1869.

I. No question can arise, we think, in regard to the proceeds of sale from the leasehold estate. By the law of this State, as it stood at the time of the marriage, the husband was entitled to the chattels real of the wife, with power to sell, assign or transfer the same at any time during the coverture; and in whatever light this interest or right of the husband thus acquired under the marriage contract may be viewed, we are of opinion that it was not taken away, nor in any manner affected by the subsequent legislation in regard to the rights of married women. If so, it must follow that the proceeds arising from the sale of the chattels real belong to the husband, and are therefore liable to execution for his debts.

II. — In regard to the real estate.

By the marriage, the husband was entitled at common law to the rents and profits of the wife’s real estate during their joint lives, or as stated in some of the cases, during the coverture. Upon the birth of a child alive, he became tenant by the curtesy initiate, and upon the death of the wife, to a life estate in the lands and. tenements of which she was seized during the marriage. This interest of the husband was liable to be taken in execution and sold at any time for his debts, until the act of 1841, chapter 161, which provided, “That no real estate hereafter acquired by marriage, should be liable to execution during the life of the wife, for debts due from the husband.” The effect of this Act, according to the decision in Logan vs. McGill, 8 Md., 469, was not to destroy the tenancy 'by curtesy, but to suspend the right of execution on the part of the husband’s creditors, during the life of the wife.

It is contended however, that the provisions of the Act of 1841 are omitted in Article 45, of the Code, and that Ephraim Hoffman being a tenant by curtesy initiate, his interest in the real estate of his wife may be taken and sold under execution. Article 45, of the Code, however, must be construed in the light of the previous legislation on the subject. By the Act of 1841, the real estate of the wife was protected from sale for the husband’s debts during her life. Then came, the Act of 1842, chapter 293, providing that a married woman might become seized or possessed of any property real or slaves, in her own name, and as of her own property; and then the Act of 1853, chapter 245, passed in pursuance of the Constitution of 1851, which exempted all the property, both real and personal, of the wife from liability on account of the debts of the husband. Such then were the statutes in regard to the property of married women at the time of the adoption of the Code. Now, section 1, of Article 45, of the Code, provides “ that the property, real and personal, belonging to a woman at the time of her marriage, and all property which she may acquire or receive by purchase, gift, grant, devise, bequest, or in a course of distribution, shall be protected from the debts of the husband, and not in any way liable for the payment thereof,” &c. * * *

Having thus exempted all the property of the wife, both real and personal, from liability on account of the husband’s debts, it was unnecessary to add in terms the provisions of the Act of 1841. It would be a strange construction to say, that in thus exempting the wife’s property of every kind and description, the Code had in effect repealed the provisions of the Act of 1841, so as to allow her real estate to be sold for the debts of her husband. Such a construction surely never entered the minds of the codifiers, nor do we think it warranted by a fair interpretation of the Code itself. The Code was intended mainly as a revision or embodiment of preexisting statutes, and having provided in express terms that the real and personal property of the wife should be exempt from all liability, it was hardly necessary to add that her real estate should not be sold for the debts of the husband during her life.

But it is contended that the real estate being converted by a sale under a decree of the Court for partition, the proceeds arising therefrom belong to the husband, and are therefore liable to execution by his creditors. “ The proposition then, is,” as stated by Chancellor Johnson, in Hall vs. Hall, 4 Md., Ch. Dec., 288, “ that though the real estate of the wife may not be liable for the husband’s debts during the life of the wife, if for any purpose it becomes necessary to convert that real estate, the protection of the law is withdrawn, and the creditors of the husband, so far as his interest is concerned, may seize upon it. If this be so, it would follow in many eases that the law which was intended to shield the real estate of the wife during life from the claims of the husband’s creditors, would be illusory and ineffectual, as it frequently happens that a sale for the purpose of partition is absolutely necessary, and may be enforced against the consent of die wife.” And the Chancellor further says:

“ In this case the wife is still living, and therefore, if there had been no sale, the creditors of the husband could not now resort to his interest in her land to pay their claims against him, and as the money, the proceeds of the land, must be regarded as standing in the place of the land, it appears to me the Act of Assembly extends to and protects it.”

(Decided 15th March, 1872.)

We are of opinion therefore, that the proceeds arising from the sale of the wife’s real estate, must be regarded as standing in the place of the real estate, and that only so much thereof as may be allowed to the husband, in lieu of his interest as tenant by curtesy, is liable to his creditors upon the death of the wife.

Order affirmed.