| Mass. | Mar 15, 1872
A bill in equity, to reach the separate estate of a married woman, for the payment of obligations contracted by her, is maintainable, if there is no adequate remedy at law. Rogers v. Ward, 8 Allen, 387.
The husband may be trustee for his wife. Manual possession by him, of her personal property, is not necessarily inconsistent with her separate title. The property may be charged, in his hands, with a trust for her. Turner v. Nye, 7 Allen, 176, 181.
There are three grounds of demurrer in this case.
1. That the bill does not set forth or show any privity between the plaintiff and the defendant, Edward T. Trofitter, and does not show any cause of action or ground for relief against him.
As the property sought to be reached is alleged to be in the hands of Edward T. Trofitter, the husband, he is a necessary party, in order to make any relief effectual, to which the plaintiff may show himself entitled as against the wife.
2. That if the plaintiff has any remedy in the premises, he has a good and sufficient remedy in a court of law, and therefore is not entitled to any relief in equity. It is alleged that the defendant, Lydia A. J. Trofitter, has no property which can be attached. If the plaintiff has any remedy at law it must be by process of foreign attachment. The defendant contends that the plaintiff can have his remedy in that form; and that it is adequate.
We need not determine whether a husband may, in any case, be charged as trustee of his wife, in the ordinary proceedings by trustee process ; because, if he may, it can be only for personal property, “ goods or effects,” in his hands specifically as the separate property of the wife, at the time of the service of process upon him. The previous receipt of money, under circumstances which would make him liable to any other person for “ money bad and received,” would not alone be sufficient to charge him as trustee for his wife, in an action at law; because the relation of debtor and creditor cannot subsist between them. If he can be charged at all, it must be on the ground of actual possession, specifically, at the time of service of the writ upon him.
It is manifest that a remedy at law, of so limited and uncertain character, is not plain, complete or adequate. It is not probable that the proceeds of the sale of the wife’s land still remain in the husband’s hands in money, as a separate fund ; and the plaintiff has no means off knowing in what form they now exist or are invested.
Pioccedirigs under that statute are of a summary character, without provision for repeal, or revision in any other mode. The result, if successful, is an order to produce and surrender, or to assign property or rights of property, to satisfy an execution previously obtained. The husband was not and could not be a party to those proceedings. The property in his hands was not fraudulently conveyed to him. It might be doubted therefore whether the proeeeedings were applicable to the case at all.
Without determining whether, if they were so applicable, a mere refusal of the magistrate to make and enforce the peremptory order, contemplated by that statute, would be an adjudication upon all" questions involved therein, which would conclude the parties in all proceedings in other courts, it is sufficient for this case that it does not appear from the bill that any such adjudication has been made. The proceedings are referred to only so far as to show what account Mrs. Trofitfcer then gave of the disposition of the proceeds of the sale of her real estate. It does not appear but that they were thereupon abandoned.
We are satisfied therefore that, upon all the grounds relied on, the demurrer must be
Overruled.