THE STATE USE ROGERS, vs. KREBS et al. Garn. of HORNE. APPEAL from Baltimore county court. The cause, which is sufficiently stated in the opinion delivered by this court, was argued at June term last before BUCHANAN, EARLE, and STEPHEN, J. 1823. The State JUNE. This court has adopted, and con siders itself bound be die supreme court by the decis ons of on of the United States respecting the state insolvent re- Where the real laws. (note) estate of a feme covert is sod un der the art to di muration of her release estate from real to personal is cum special plete when the commissioners' ac- sale is ratified by the court, and the to purchaser ha com. exe terms plied with the of it, by paying the money, eash, or by giving Williams, for the appellant. 1. The subsequent acquisitions of Horne were not discharged from a liability to taken in execution under the judgment against him, which the attachment in this case issued, by Horne's lease under the general insolvent laws; both because the bond, on which the judgment was obtained, was executed reet descents, the before the passage of those laws, and because his was only of his person. 2. His release, under a insolvent law, has not the effect to discharge his future quisitions, because that law, and the general laws which that law refers, were passed subsequent to the cution of the bond, on which the judgment was obtained. if the sale was for 3. Under the decision of the supreme court of the United States, a discharge, in pursuance of a state insolvent law, cannot constitutionally have the effect to release the future to the wife by the acquisitions of an insolvent petitioner. 4. The judgment chose in action, as is the money in rendered in this case was not made subject to Horne's dis- the hands of the charge under the insolvent law, but was an absolute judge withheld from her; ment. 5. The money arising out of the sale of the real sued for and reestate of Mrs. Horne, by the commissioners under the act husband alone. to direct descents, was personal property, and belonged to in the hands of her husband, and, as his property, was consequently liable may be attached to be taken in execution for the satisfaction of a judgment creditor to satisfy obtained against him. (a) to the rp resentatives, if the sale was on a cred The bond passed purchaser is commissioners, if both able to be covered by the The money thus the commissioners by the husband's This court adopting the decision of the supreme the last point only is necessary to be attended to, is the principal point in the case. The funds attached the hands of Krebs, and others, were a subsequent acquisition of personal property by Horne, except to the value of his tenancy by the curtesy, which belonged to his trus- made of it by tee. The real estate of his wife was sold pursuant to the acts to direct descents. It is converted into personal property; for by those acts there is nothing in them which ex (a) BUCHANAN, J This court has adopted, and considers itself bound by the decision of the supreme court of the United States, respecting the state insolvent laws, him. 1823. The State VS Krebs empts such proceeds from becoming personal property, the moment the land is sold and paid for-1786, ch. 45, s. 8. When it becomes the personal property of the wife, eo instanti it becomes the personal property of the husband; and as such, becomes liable to all the incidents his personal property is subject to, and consequently to that of being attached to pay his debts. The commissioners are the husband's agents, or his stakeholders, for this collection. The purchaser has paid over the money to them, and they have made the deed. The instant the legal interest has passed from the commissioners, and they have received the money, they are clearly his depositaries of the money. It is an acquisition subsequent to his release, because, when he applied for the benefit of the insolvent law, and executed a deed to his trustee, all the interest which he had in his wife's real property was an eventual tenancy by the curtesy. Property in the hands of a sheriff may be attached.-Davidson vs. Clayland, Garn. of Blake, 1 Harr. & Johns. 546. Campbell vs. Morris, 3 Harr. & M Hen. 556. Decisions have been made in our court of chancery of the real estate having been converted into money, and became personal property. This was done in the case of John Spurrier's estate in 1813, and in that of Price's estate. In Spurrier's case, the wife of one of the claimants died after the decree, and one of the sales under it, yet the chancellor directed the whole proceeds to be paid to the husband. R. Johnson, for the appellees. The fifth question may be divided into two branches-1st. Whether the funds in dispute are the personal property of the husband; and if so, 2d. Whether they are liable to attachment under the act of 1715, ch. 40? 1. The act of 1786, ch. 45, never intended to deprive the wife of her real estate, or the proceeds of it. The case of Spurrier was under the act of 1785, leaving it discretionary with the chancellor to appropriate the fund for the advantage of the parties concerned. The county court of Prince-George's (Gantt, Ch. J.) decided, in the case of Duckett's estate, that the proceeds of the real estate, under the act of descents, should be considered as real estate. Courts of equity will not let the husband get possession of money of the wife, unless he will give secu ity to settle it on the wife. 1 Fonbl. 95, (note K.) Sup pose in this case Horne had applied for the money, would not Baltimore county court, being a court of equity, have - compelled him to give security to settle it on the wife? Attorney General vs. Whorewood, 1 Ves. 548. Adams vs. Pearce, S P. Wms. 13. If Horne could not get the money without security, or settling it on his wife, then his creditors could not affect it in this way. In Davidson vs. Clayband, the surplus of the money remaining, after satisfying the fieri facias under which land was sold, was considered as land. The act of 1786 directs, that the money shall be divided among the heirs according to their titles to the estate. The interest of the tenant by the curtesy was valued at ten dollars; and his wife had an interest in one fourth of the purchase money, subject to the payment of the ten dollars. 2. If it was the personal property of the wife, and the husband could get possession of it, does it follow that it can be attached? It was a chose in action, and it was discretionary with the husband whether or not he would reduce it into possession. 2 Blk. Com. 434. If he does not, no other person can do it for him. Suppose this a note to the wife, and the husband had not chosen to turn it into possession, could the creditor do so by any proceeding? It is similar to a devise of an estate to A, on condition he changed his name. The act of 1798, ch. 101, is different from the statute of Charles. The husband, in England, has the right to administer on his wife's estate; and if there is a chose in action, not reduced into possession, it devolves on the wife's representatives. But under the act of 1798, if the husband does not take possession of the choses in action of his wife, they devolve on her representatives. This fund is in the hands of the commissioners, who are officers of the county court. There is no order for them to pay over the money. This case is not different from that of Sowers vs. The State use Schell, decided by this court. There is nothing to show that Baltimore county court would decree to Horne any part of the money. The funds are in the hands of the commissioners, and they are responsible for them to the court. Williams, in reply. The last point is a matter of fact. The proceeding was not before Baltimore county court as 1823. The Sta Krebs a court of equity, it was under the act to direct descents. The sum and proportions have been ascertained by the county court. But it is said to be a chose in action, and not liable. Creditors may pursue a chose in action. ▲ chose in action, arising after the marriage, is reduced into possession, and is not similar to a chose in action before marriage. The cases in Fonblanque, P. Williams, and Vesey, are equitable cases of proceeds from the wife's estate. The application must be resisted by the wife or the children, or the money is paid over to the husband. That was not done here. By the act of 1786, ch. 45, s. 8, if the money was to have been considered as real estate, it would have been so stated. By the act of 1816, ch. 154, 3. 9, the legislature has declared, that the money alluded to by that act is to be considered as real estate. Why not have said so in the act of 1786, if it was so intended? There can be no distinction between sales under the act of 1785, and that of 1786. Neither of them say the proceeds shall be considered as real estate. Cur. adv. vult. At this term the opinion of the court was delivered by EARLE, J. In this cause there was a pro forma decision by Baltimore county court on a case stated. Among other things, very foreign to the subject in controversy, the case in substance states, that in the year 1804 Elizabeth Young, wife of Joseph Young, Mary D. Horne, wife of John S. Hornë, and Rebecca Barney, wife of William B. Barney, became entitled, by descent, to a certain undivided real estate, situate within the city of Baltimore, as heirs at law of their father, Charles Ridgely, and that Rebecca Barney died intestate of her undivided part thereof, in 1807, leaving three infant children, Joshua Barney, Charles Barney, and Rebecca Barney; that on the 27th day of April 1816, Joseph Young, and Elizabeth his wife, petitioned Baltimore county court for a division of the said real estate, according to the act of assembly entitled, "An act to direct descents," and the several supplements to the said act; and thereupon the appellees, William Krebs, George Warner, and others, were appointed commissioners for the purposes in the said laws prescribed, who reported to the court that the real estate would not admit of a division among the heirs, without loss and injury to them; that the said report was ratified by the court, and none of the heirs having elected to take the said real On this statement of facts the question is made, whether the attachment is sustainable? It was decided in the court below against the attachment, and we are now called on to review the decision, and if necessary, to correct it. In reflecting on this subject, the first doubt that arises in the mind is as to the nature of this property of the wife in the hands of the commissioners. It is in fact money, but the point of hesitancy is, whether in legal contemplation it is to be so considered? No discrimination is made by 1823. The State V'S Krebs |