Timbers v. Katz

The opinion of the Court was delivered .by

Gibson, C. J.

This ejectment is brought by the trustee of an insolvent husband, against the husband’s daughter, whose mother assisted her with the proceeds of the mother’s bond, to pay for land which the daughter had purchased; and the plaintiff insists that the money must be taken to have been in the husband’s possession, because he signed the receipt for it: consequently that his creditors may follow it into the land. It was proved that the bond had been a security for the price of land sold by the wife when she was sole; that the husband, though struggling with poverty, had not enforced the payment of it, or exercised any act of ownership in respect to it, till his wife gave the money to their daughter to make up a payment for the land on which the family were living; that the daughter paid another part of the purchase money with her own earnings, and that she mortgaged the land for the residue. There was no evidence that the husband had exacted the money from the obligor, or that it had passed through his hands on its way to his daughter’s vendor; or that the husband had taken part in the transaction, farther than to sign the receipt, which was necessary to discharge the obligor’s responsibility. Did that constitute reduction to possession?

There was an evident design that it should not; and it is an undoubted rule, that between the wife and the husband himself, his possession, even in fact, may be qualified by his intention, as it was in the case of Hinds’s Estate, (5 Whart. 138), where an absolute transfer of her stock was qualified by his certificate that it was received as a loan. In the case at bar, the husband neither handled the money nor did more than was necessary to accomplish the wife’s purpose by discharging the bond. The act was not reduction into possession in contemplation of law, because, as was said by Lord Eldon, in Wall v. Tomlinson, (16 Vez. 413), in regard to a transfer of the wife’s stock to her husband as a trustee, it was done diverso intuitu. The sum of the matter is, that the ownership follows the husband’s will; for the law will not cast it on him against his consent. Take the case of a wife who sells her land to invest the price of it in other land as her separate estate, and whose husband joins her in the conveyance and the receipt for the purchase money, as he necessarily must, but with no view of making it his own ; surely that would not give him a resulting trust in the land. Now that is the case before us, except that the feme’s land was sold by her before her coverture, and the price of it was invested by the daughter, to whom it was given in her own name. If the husband’s title must necessarily intervene by reason of the temporary conversion, there can be no way for a feme covert to part with land for land, except by exchange, and that could seldom be effected. ' If there were not creditors in the way, then the law of the case would be clear for the defendant; and how far does the intervention of their interest affect it ?

It must be taken for granted, that the husband refused to touch the money purposely to keep it out of their reach. There was evidence from which the jury might have inferred it, and the fact was doubtless so. Was that a fraud? To have been defrauded, the creditors must have had an interest in the money such as the law would recognize and protect; but they could not have had such an interest, unless the ownership was in their debtor. The stat. 13 Eliz. would operate on nothing less. Now, though marriage is an absolute gift of the wife’s chattels in possession, it is but a conditional gift of her choses in actions. To speak more accurately, it is perhaps a gift of her power to dispose of them to himself, or any one else, by force of the dominion to which he has succeeded as the representative of her person. Not to dispute about terms, it is enough for the argument that the gift of the thing, if there be one, is on a condition precedent which must be performed to vest the title, and the husband has not the semblance of ownership in the mean time. If there is a gift of the title on a condition subsequent, what is the contingency which must happen to divest it? Death, without reduction to possession, would not be a condition, but a conditional limitation; and if a limited title resides in the husband during his lifetime, why might not his creditors acquire it by the process of the law, and reduce the chose into possession in his place? It may be said, that the common law has no process by which the title to a chose in action can be reached. The husband’s conditional title.then, is an unsubstantial thing, and the creditors’ derivative interest in it moonshine: for what is the value of a right which cannot be enforced? Yet it is said, that such a right may be prejudiced by a fraud ! Choses in action could not indeed be taken in execution at the common law, but they might always be reached by attachment; yet it was ruled by this court, in Dennison v. Nigh, (2 Watts 90), and Robinson v. Woelpper, (1 Whart. 179), that a wife’s outstanding legacy cannot be attached for the husband’s debt, because the husband has no property in it. These cases are authorities in point, for they stand on the very principle which lies at the root of the present defence. A wife’s chose in action passes by the husband’s assignment under the insolvent laws, only because it is a voluntary transfer of it for valuable consideration, and an exercise of all his power. Taking the gift then to be conditional, he surely has a right to reject it by refusing to perform the condition. The law certainly does not cast it upon him beyond his power of resistance ; for every gift requires the assent of the donee. As to her chattels in possession, indeed the husband has no choice, for her user of them is his user, and whatever benefits her benefits him; consequently, her possession and acts of ownership are his possession and acts of ownership. But a right of choice residing in his person as the representative of his wife, cannot be severed from it or controlled ; and on what principle maya creditor insist that he shall .exercise it in a particular way? Now, as a creditor must claim through his debtor, and not paramount, the plaintiff, representing the husband’s creditors, stands, in relation to the land in contest, in no greater equity than the husband stood before his assignment. But before that time he had suffered his wife to part with her money, and no trust resulted to him by the investment of it in land purchased in the daughter’s name.

The record of the plaintiff’s recovery against the father seems to have been erroneously received in evidence to affect the daughter, who does not seem to have been party or privy to it. It could be made competent only by showing that the father was her tenant; and if the fact were so, there would have been no need of an ejectment directly against herself and her husband. It is certainly not enough that the former ejectment was for the same land, on the same title, and under the same deed by which the parties at present claim : it is necessary beside that the parties be the same, or stand in privity with those who were.

Judgment reversed, and a venire de novo awarded.