6 Paige Ch. 366 | New York Court of Chancery | 1837
The answer fully denies all the allegations in the bill impeaching the consideration of the judgment. Although the judgment creditors admit they had occasionally gambled with the husband of the complainant, and that it is impossible for them to say whether they have won more money from him than he has from them, yet they both explicitly swear, in their answer, that not one cent of the monies for which the judgment was obtained was won at gaming, or grew out of any gaming transactions. Neither do I think it competent for the wife, in such a case as this, to impeach the consideration of a judgment recovered against the husband, unless she can also satisfy the court that the judgment is the result of collusion, or of a conspiracy between her husband and mere nominal creditors to deprive her and her children of an equitable right to a provision for support out of her property. There is no doubt, however, as to the fact that the husband has ruined himself by gambling ; and that if his interest as tenant by the curtesy initiate in his wife’s real estate is sold on the execution upon this judgment, his wife and her infant children will be left without any means of support during his life. The only question to be decided, therefore, upon the present application is, whether this court has any power to reach this life interest so as to preserve it for her support ; and thus to protect her and her helpless children against a vicious and improvident husband and his creditors.
If the wife has any equitable rights as against the husband himself, she is equally entitled to protection as against the lien of a judgment; which cannot in this court be permitted to overreach a prior equitable claim upon the land, although at law it is a lien upon the legal estate of the hus
It was upon this principle, as I understand the facts in the case, that the late Chancellor Kent decreed a perpetual injunction against the creditors of the husband, in Haviland v. Myers & Bloom, (6 John. Ch. Rep. 25, 178.) It is true the language of the court in that case would seem to imply that the learned chancellor intended to decide that the general equity of the wife to a support out of marital property originally hers, extended to such property which the husband had already reduced to. possession, as well as to that
How far this court is authorized to interfere for the protection of the wife’s equity in the marital property, not under the protection of this court, which the husband has not reduced to possession, does not appear to be fully settled. There appears to be no doubt, however, as to the power of the court to protect her equity in such property when the husband or his assignee is obliged to resort to this court for relief. (Howard v. Moffat, 2 John. Ch. Rep. 206.) The decisions, however, still leave the question in doubt how far this court can interfere, upon the application of the wife, to protect that species of property against the improvidence of the husband, where either he or his creditors can reach it without the aid of a court of equity; though Chancellor
In the case under consideration, however, with the strongest desire to protect, if possible, this unfortunate wife and her helpless children, who are about to be reduced to beggary in consequence of the improper conduct of an improvident and gambling husband and father, aided and encouraged perhaps in his vicious courses by those who are now about to take from the wife and children their only means of support, I have not been able to find any principle either of law or of equity which can authorize this court to interfere with the husband’s legal estate, as tenant by the curtesy initiate in his wife’s real property, so as to place it beyond his reach and the reach of his creditors. The general rale of law is well settled, that by the marriage the husband takes an immediate vested interest in his wife’s freehold estate for their joint lives, at least, and an absolute right to all her personal property in possession, unless the same is in the hands of a trustee, or is protected by an ante-nuptial contract. The case of Thomas v. Sheppard, before the court of appeals of South Carolina, (2 M’Cord’s Ch. Rep. 36,) is a direct decision upon the question now under consideration; and after a careful examination, I have not been able to find that any judicial tribunal has adopted or sanctioned a principle of equity which would necessarily lead to a different conclusion. The opinion of the learned commentator upon American law, who has carried the doctrines of the wife’s equity as far as it had ever been supposed to extend by any judge who has preceded him, evidently is that it does not extend so far as to authorize a court of equity to seize upon property which formerly belonged to the wife, hut in which the husband has, without fraud, obtained a vest
The injunction must therefore be dissolved.