Hamnett & Son's Appeal

The opinion of the court was delivered, by

Sharswood, J.

The facts found by the auditor appointed to distribute the fund in court, are substantially these: Adaline Smith, the real or supposed wife of John C. Smith, having money in her hands, whether her own or as guardian of her ohildren by her former husband, is, as we shall presently see, entirely immaterial, entered into articles with Thomas Mellon for the purchase of a lot of ground, and proceeded to erect a small frame house' upon it. Afterward a deed was executed to her, and she gave a mortgage to the vendor for the unpaid purchase-money, and a balance due him for building materials furnished to her by him. All the money expended on or about the building of the house was paid by Mrs. Smith, no part of it having been contributed by her husband. The house and lot were sold under proceedings upon the mortgage, and after discharging that, the balance was paid into court for distribution. The appellants are judgment-creditors of John C. Smith, the husband or supposed husband of Adaline Smith. It is entirely unnecessary to enter upon any question as to the unlawfulness of the marriage, or whether it can be set up in this proceeding. It is very clear that upon the facts reported by the auditor the appellants had no claim upon the fund, but that it was rightly awarded to Adaline Smith. It has been maintained indeed that if the money used by Mrs. Smith belonged to her children, it was an embezzlement or misappropriation by her to invest it in the house and lot, for which her husband would be legally responsible, and that therefore it ought to be considered in law as belonging to him. The premises may perhaps be true, but the conclusion by no means follows. The utmost inference which could be made would be that upon payment by him to the wards of his wife, he would then have an equitable estate in the land. It may also be that as against Thomas Mellon, the mortgagee, with notice that it was the money of the children, they could follow it into the land, but the sheriff’s sale without notice vested the legal title in the purchaser discharged of the secret trust resulting to them, and they are necessarily thrown upon the fund. Mrs. Smith is their guardian, and in that capacity, if it is their money, she is entitled to receive it. The appellants have no standing in court to contest the right on that ground. The decree of the court below was therefore right in awarding the money to Adaline Smith or Bruner.

It may be that the costs of the first audit, if the matter had rested there, ought not to have been put upon the appellants. But they renewed their claim with full knowledge of the facts upon the second audit, and it was agreed that the testimony taken on the first audit should be received, and used on the second. Under these circumstances we think that the order by the court below, that the appellants should pay the costs of the audit, was also right.

Decree affirmed, and appeal dismissed at the costs of the appellants.