State ex rel. Rogers v. Krebs , 6 H. & J. 31 ( 1823 )

At this term the opinion of the court was delivered by*'

Earle, J.

In this cause there was a pro forriia decision fjy Baltimore county court .on a base stated. Among other things, very foreign to the subject in-controversy, the? case in súbstánce states, that in the year 1804 Elizabeth Young, wife of Joseph Youngs Maty D. Horne, wife of John S. Horne, and Rebecca Barney, wife of William B. Barney, became entitled, by descent, to a Certain undivided real estate, situate within the city of Baltimore, as heirs at law of their father, Charles Ridgely, and that Rebecca Barney died intestate of her' Undivided, part thereof, in 1807, leaving three infant children, Joshua Barney* Charles Batney, arid Rebecca Barney! that on the 27th day of April 1816, Joseph Young, and Elizabeth his wife, petitioned Baltimore comity court for a division of the Said reql estate, according to the act of assembly entitled? ScAn act to direct descents,” and the several supplements to the said act; and thereupon the appellees, William Krebs, George Warner, and other's, were appointed comSnissioners for the purposes in the said law's prescribed, who- reported to the court that the real estate would not admit of a division among the heirs, without loss and injury to them; that the said report was ratified by the courts and none of the heu;s. having elected to take the said real’, estate at the value set thereon by the commissioners,- the court directed the said commissioners to make sale of the-Same; who, pursuant to the directions of the court, did sell the real estate for the sum of §3,331 29, expenses deducted,. which sale being approved of, the purchase money was accordingly received into their hands,, between, the months; of August 1816 and May 1817,. one third of which sum was paid over by the commissioners, to John Eoung, and Elizabeth his wife, one third thereof to. William B.; Barney, as surviving husband and guardian of; the infant children of Rebecca Barney, and the remaining third is still in, the hands of the commissioners, subject to certain deduc-. lions agreed on, by the- appellant and appellees. The casual so states, that in the year 1805, John S. Home took out letters of administration on the- estate of SaniudR, Ro.~ ger.s,. with the w-ill of the said deceased annexed, and in, due form executed an administration bond-, in the penalty, of §30,000, on which bond a suit was instituted against the said John S. Horne in Baltimore county court,.to September term 1815, in the- name of the state at the instance and for the use of Robert Rogers, the sole legatee of Samuel S. Rogers, and that, an absolute and unconditional judgment was obtained in, said suit against the said John S. Horne, at September 1817,. for the sum of §8,820 98. and costs. The case further states, that on the 15th day of December 1817, the. writ of attachment in this cause,, upon the judgment aforesaid, was. issued, and was laid in the. hands of the commissioners, between the-issuing of it and the 12th day of March 1818,. to, affect, the property or credits of the said John S. Horne, no. part of the money arising out of the sale of the said Mary D. Home’s real estate haying been paid over, but being thea; i.n the hand*, pf the garnishees, the appellees in this cause..

On this statement of facts the question is made, whether-the attachment m, sustainable? It was decided in. the court below against the attachment, and we are now called on tot review the decision,, and if necessary, to correct it.

In reflecting on this subject, the first doubt- that arise* in the mind is as to. the nature of this property of the wife in the hands of the commissioners. It is in fact money, but the point cf hesitancy is, whether in legal contemplation it is to be so considered? No discrimination is made by the descent laws, between tlje interest of a feme covert, and that of any other heirs of the intestate. Those laws di-> rect the commissioners, who have sold for cash,, after the ratification of' the sale, and the deduction of the expenses to be ascertained by the court, to divide justly the purchase money among the. several persons interested, according to their respective, titles to the estate; and when the estate is sold- by the commissioners on a credit, bonds are. to be taken by them for the purchase money, to' each re-, presentative respectively, according to his or her proportional part of the nett amount of sales. The feme covert is treated, like the other heirs, and it is to be presumed hen property, after sale, assumes the same character- as theirs. The money is to be paid to her as heir in the one case, and. the bond is to be passed to her in the other, according to. the injunctions of theact of assembly, A change in the. nature of her property is thus operated by the safe of the. commissioners,, but the point of time- when the change takes place, is a question of interesting consequence to the relative rights of her and her husband-. Upon this question the court have deliberated, and we- think that the. mutation of her estate from real to personal may- be determined to be complete when the commissioners’ sale is., ratified by the court, and the purchaser has complied with the terms of it, by paying the money, if the sale is for-cash, or by giving bonds to the representatives, if the sale is on. a credit. The bond passed to the wife by the purchaser is a chose in action, as is the money in the hands of' the commissioners, if withheld from her; both liable to be - sued for and recovered by the husband at his pleasure. But ■ a difficulty was urged in argument to the recovery of the money in. this case by the husband, and it was said that the court, where, the sale of the wife’s land was effected, would not permit him to receive the proceeds of the sale., without making a provision for his wife. To this it is to be answered, that the distribution of the money appears to have been made by. the commissioners^ and not to have been brought into the county court; and it is admitted in the statement* that the. money of Mary L. Horne is still -in the hands of .the commissioners, ready to be paid to the person best entitled to it. To.regover the money of the commissioners in such a case, the. husband’s remedy would be by a suit in, a court of law, apd the principle seems to. be a settled one, that wherever a husband can come at the estate of the wife, without the aid of the court of chance-; ry, that court cannot interfere in her behalf. See Attorney General vs. Whorwood, 1 Ves. 539. Hargrave & Thomas's Co. Litt. 310. In what light we consider a county court, ordering a sale of real property under the. descent laws, we do not mean to suggest} it is enough for us to say, that in this case the money was not brought into Baltimore county cc®rt, and that that tribunal had not aa opportunity of exerting its authority over the subject, either as a court of equity or as a court of law.

We have already said, that where a bond has been passed to the wife, for live proceeds of the sale of her real estate sold by commissioners, or where a sale has been made for cash, and the money has been received and is withheld by the commissioners, the husband may sue for and recover those debts at pleasure, of the purchaser in the first case, and of the commissioners in the. last. In the action in either case, he may join his wife with him, or the husband may sue alone at his election. That a husbamFmay in his own name sue a bond passed to him. and wifey or to the wife alone during coverture, there are, many authorities to-show, independent of the act 1798, ch, 101; and it is equally certain, that he may sue alone for a breach of promise made to him and his wife, after coverture, or to the wife only, to pay a sum of money to her. For the first position, see Ankerstein vs. Clarke, 4 T. R. 616, and Philliskirk vs. Pluckwell, 2 Maule & Selw. 396; and for tluj last, see Hilliard vs. Hambridge, Aleyn’s. Rep. 36, and Prat vs. Taylor, Cro. Eliz. 61. 1 Selw. N. P. 245. If the husband may sup alone, where an express, promise is made, to the wife, after coverture, what good reason can be assigned why he could not sue in the same way on a promise to the wife raised by implication of law, as in this case, had ü be.en against the commissioners for the money had and received by them? The express promise, and the promise implied, are of the same character* as to the husband’s claims, and resting upon similar principles, they ought to be adjudicated on in the same way. Yet the law be considered as settled, that the husband may sue in his own name for money situated as this is in the hands of the commissioners, and it seems to follow necessarily, that i( may lie attached by the husband’s creditor, t® satisfy a debt due by hip. If the commissioners and gárnishess here had plead nulla bona on the trial of the issue, it would have been competent to.the piafo tiff to give evidence qf the wife’s money in their liaqds, and it would have been sufficient to have sustained his case. The money being at the disposal of the liusband, is in truth and ip, law his, and is liable for. his debts, and can never be enjoyed by the wife but upoq the single contingency of her surviving her husband, before an appropriation is, made qf it by him. '%■

Thq judgment b.elqw we think ought to be reversed..

JUDGMENT EEVEUSEiy.