Logan v. McGill , 8 Md. 461 ( 1855 )

Le Grand, C, J.,

delivered the opinion of this court.

This is an appeal from the decision of the circuit court of Washington county on a case stated. The facts which it is necessary to notice are these: — certain parties obtained a judgment before a justice of the peace against the defendant, 'Charles McGill, and caused to be issued thereon a fieri facias, which was delivered to the appellant, as constable, for levy, which was accordingly done on a certain quantity of wheat alleged to be part of the yield and rent of a farm which had been devised to the wife of the said McGill. The farm was rented or leased by the said McGill, “for his wife, to a certain 'William Peter, who was tenant in possession, and who seeded on the said farm, as tenant as aforesaid, in the fall of the year 1853, a crop of wheat, and harvested or gathered the same in the summer of 1854, and that the said quantity of wheat so seized and levied upon as aforesaid, to satisfy the execution against the said McGill, was part of the rental proportion of the said crop of wheat so sown and gathered, which the said tenant, Peter, was to pay as rent for the said farm.” The words of the devise are as follows: “I give and devise to my daughter, Mary McGill, and her heirs and assigns forever,” &e.

The question is, whether, under the laws of Maryland, the crop or rent of the farm devised to Mrs. McGill be liable to execution for the debts due by her husband ?

The act of 1841, ch. 161, provides, “that no real estate hereafter acqidred by marriage shall be liable to execution, during the life of the wife, for debts due from her husband.” And the first section of the act of 1842, ch. 293, declares, “ that from and after ¡he passage of this act, any married woman may become seized or possessed of any property real, or of slaves, by direct bequest, demise, gift, purchase or distribution, in her own name and as of her own property; provided the same does not come from her husband after coverture.”

We consider this case must be decided by the act of 1841; the section of the act of 1842 was designed to authorise a wife to acquire title to any property real, and slaves, in the particular modes therein pointed out, without the intervention of a trustee. The act of 1841 was intended to shield any real estate acquired by marriage from execution, during the life of the wife, for debts due by the husband. Although it does not destroy the tenancy by the curtesy, it nevertheless suspends the right of execution during the life of the wife, leaving, however, the judgment lien perfect on the life estate of the husband, to be enforced on the death of the wife. Anderson, et al., vs. Tydings, et al., Ante., 427.

Whatever maybe thought of the wisdom of such legislation, it is clear to our apprehension, that it was the purpose of the legislature to secure to the wife and husband the enjoyment of her real estate during her life. To allow the rent or yield of the property to be taken in execution for the debts of the husband, would be, in effect, to render the law in most cases wholly inoperative. Concurring with the court below, we accordingly affirm the judgment.

Judgment affirmed.