Ex parte Mobley

Curia, per Dunkist, Ch.

The land belonging to the wife was sold only because it could not be properly divided among those entitled to it. The sale was then for the purposes of partition. Ackroyd vs. Smithson, 1 Bro. C. C. 503, was decided by Lord Thurlow, who was induced to change his opinion on the argument of Mr. Scott, afterwards Lord Chancellor Eldon. The language of Lord Thurlow in that case is — “that he used to think, where it was necessary for any purposes of the testator’s disposition, to convert the land into money, that the undis-posed money should be personalty; but the cases fully proved the contrary.” This principle has been recognised in our own courts. But the very point submitted by the appeal has been decided by the court of law. In Hood vs. Archer, 2 N. and McC. 149, the wife’s inheritance was sold by the sheriff, who had received the purchase money. The wife then died, and the question was whether the money belonged to the husband, by-virtue of his marital rights, or whether the right did not remain in the wife so as to vest in her administrator. The court held that it belonged to the administrator of the wife. The authority of this case is fully recognised and the principle applied in Wardlaw vs. Gray, 2 Hill Ch. 644. Of course the assignee of the husband can stand in no better situation.

The appeal is dismissed.

Johnson and Johnston, CC. concurred. Boyce, for the appellant.