The opinion of the Court was delivered by
Gibson, C. J.The inconvenience which induced the Legislature to dispense with an insolvent debtor’s formal assignment, induced them to dispense with no part of its operation in practice. It had sometimes happened that the trustee died or would not accept, whence a necessity for further assignment, the property often being left for a time in the control of the debtor; to avoid which, it was thought preferable to vest the title at once by force of the statute itself. The wife’s interest therefore passed to the trustee on the principle of Richwine v. Hearn, and her survivorship was barred by the principle of Siter’s case.-
The solidity of the latter has been disputed in the argument; but I believe we all concur that it has so far become a rule of property as to preclude us from disturbing it, were we so disposed, for the sake of an hypothesis. For myself, it is proper to remark, that nothing which has been said here or elsewhere has shaken my confidence in the soundness of it, and that I am unable to perceive the force of Sir Thomas Peumer’s argument in Purdew v. Jackson, which is thought by Mr Clancy to have overthrown the previous English decisions as being unanswerable on principle, but which is more accurately thought by him to be as applicable to the wife’s choses presently reducible to possession, as to her choses in reversion. If, as supposed, he has overthrown them as to the one class, he has as certainly overthrown them as to the other. And on what ground ? On that of a supposed technical incongruity. The foundation of his argument is, that marriage gives the husband a distinct but inchoate title of his own; and that, when he assigns her chose before reduction of it to possession, he assigns, not her title to it as the instrument of her power, but his own inchoate title, and no more; the fallacy of which is proved by the fact that he must join her in an action to recover it. If he had a separate title to the thing, he could recover separately on it; but as he cannot recover without joining her, as he would in an action for a wrong purely personal, he recovers on her right, not his own: consequently, he recovers her property, not his own. But I mean not to repeat the arguments used in Siter’s case. Sir Thomas seemed to think in Purdew v. Jackson that reduction to possession enlarges the husband’s ownership, and bars the wife’s survivorship, by some sort of technical legerdemain, as a common recovery bars an entail, and for reasons not less inexplicable. But when a train of decisions are to be overturned for the sake of a theory, it ought to be plainly founded *170on incontrovertible principles of technical reason. I conclude with remarking that the principle of Siter’s case is to be considered the law of the land.
Judgment affirmed.