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wife entitled to a chose in action, as he may release or forfeit it, so if he should assign for a valuable consideration, it would be good.” This observation also bears no relation to the subject of the decree in that case; which was grounded upon the fact of the husband's having acquired a legal power over the property in question, by the possession of certain premises. Such are the authorities in support of the proposition in question! The following observation of Sir Thomas Plumer, in Purdew v. Jackson,1 seems justly applicable to the stress which has been laid
them. “ It is possible that opinions may occasionally be afloat, founded on loose expressions and scattered dicta, sometimes uttered without mature consideration, sometimes inaccurately or imperfectly reported, which pass from one man to another, and are gradually received and acted upon as forming the law, without sufficient authority for such a conclusion.” This learned judge, in the case just cited, (in which it was after great discussion and deliberation settled, that an assignment for valuable consideration of the wife's reversionary or contingent interests does not defeat her claim by survivorship), took occasion to ask, there any case in which the husband having assigned the wife's present chose in action, and having died before the assignee obtained possession of it, the assignee prevailed over the surviving wife?”. The counsel for the assignee in that case (Mr. Sugden) admitted that he knew of none.
While upon the subject of authorities, it would be improper to pass without notice an inaccuracy into which Mr. Roper appears to have fallen, in so stating the substance of Sir William Grant's judgment in Mitford v. Mitford, as to lead his readers to conclude, that the learned judge signified his opinion, that a sale of the wife's chose in action by the assignees of the husband, under a commission of bankrupt, would have the effect of defeating the wife's claim by survivorship. The inference to be drawn from this proposition, with respect to the husband's power, is so obvious, that it is important to shew with what fairness the proposition has been ascribed to that judge. Mr. Roper states, 3 that in Mitford v. Mitford, “Sir William Grant decided in favour of the wife, upon the princi
1 1 Russell, 63.
2 lb. 19.
3 1 Husb. & Wife, 229.
ple, that this being a chose in action and not reduced into possession during the husband's life, survived to her; and that an assignment under a commission of bankruptcy although it passed her share, passed it to the assignees sub modo, viz. provided they received the share or its value during the marriage, &c.”. Shortly after, the learned writer adds, “ the court of Chancery in analogy to the rule of law decreed, that as neither the husband nor his assignees had, during his life, reduced the wife's share into possession by sale or otherwise, it necessarily survived to her upon his death.” Here we must presume that the learned writer did not intend to state a fact, but merely his conclusion respecting it. For in the first place, there is not a syllable in the judgment expressive of an opinion as to what would be the effect of a sale of the wife's chose in action by the assignees. On the contrary, the Master of the Rolls expressly confined himself to the consideration of the effect of the assignment by operation of law in bankruptcy. He noticed cursorily the alleged effect of a sale by the husband himself in terms (such as “it is said," "supposing this doctrine to be established,” “if such be the rule,”) implying, that he regarded the doctrine merely as an assumption, and as having nothing to do with the question before him. In the next place, Mr. Roper thus explains in a subsequent passage his statement of this judgment :-“Sir William Grant's observation, that the wife's property being a chose in action, and not reduced into possession during the husband's, life survived to the wife, must, it is presumed, be considered in an extensive sense, importing that the assignees having neither reduced the property into their possession, nor disposed of it for value, in life-time of the husband, &c.” “ This interpretation of the expression of the Master of the Rolls,” Mr. Roper says, is founded upon the husband's legal power over his wife's personal estate, whereby his assignment of her real chattels, whether in possession or remainder, intercepts at law her title by survivorship. The fallacy of the notion, that the courts of equity would, in deciding against the wife's claim by survivorship in the case of assignment of her choses in action, observe an analogy to the husband's legal power of assigning, with or without consideration, his wife's chattels real, or chattels personal in possession, has been sufficiently exposed in the case of Purdew v. Jackson before cited, where it was much pressed upon the court. It is moreover worthy of note, that in this very judgment of Mitford v. Mitford, the following observations of Sir William Grant seem designed to shew the wide distinction between the cases. “ As at law her choses in action not reduced into possession by the husband, survive to her, so do her equitable interests in the same case survive to her in equity. But there are some legal interests which do not admit or stand in need of being reduced into possession ; being in possession already, and not lying in action; as terms for years, and other chattels real, of which the legal title is in the wife. They will survive if no act is done by him; but he may assign them, which passes the legal interest, whether with or without consideration : the analogy is followed in equity. Equitable interests of the same nature may be transferred in the same manner.” It seems obvious, that as to such legal interests of the wife as do not lie“ in possession,” (in other words, choses in action), the true line of proceeding in equity, in analogy to the courts of law, is to decide that the assignment of them by the husband, whether with or without consideration, shall not affect the right of the wife surviving. The assumption of Mr. Roper, above noticed, as to the effect of the judgment in Mitford v. Mitford, might not in itself be important, did he not appear mainly to rest upon it (not citing any other authority) his statement of the doctrine we are considering. “ If then such assignees (in bankruptcy) are able by their assignment for value to bar the wife's title by survivorship to her own reversionary choses in action, for the reasons before given, it follows, that an assignee of the husband for a valuable consideration of the wife's choses in action, whether they be immediately recoverable, or be in remainder, &c., will also be entitled to hold them against the wife's claim by survivorship.” 1 When we find so important a statement resting upon such grounds, it is but proper to warn the student of the possibility of being misled, even by so respectable a text writer as Mr. Roper.
11 Husb. & Wife, 231.
ship, there are many dicta which, taken abstractedly, seem to go the whole length of the proposition here contended for. As however, in truth, it may be doubted whether they were not intended to apply principally to the wife's equitable property, respecting which, the doctrines of the courts of equity have in some points been till lately very unsettled, the bringing of them into this discussion would only increase the great amount. of unfair reasoning which has been applied to this subject. In the case, however, of Burnet v. Kinaston, 1 referred to by Sir William Grant, is a dictum of the lord keeper Wright, strictly in point. It was explicitly laid down by that judge, that “ If a husband assigns a bond of his wife for valuable consideration, this assignment will not bind the wife if she survives.”
Seeing, therefore, that the wife surviving, has by the common law of England (and not by the authority of the court of Chancery), an absolute right to such part of her personal property, of a legal quality, as at the time of her husband's death remains “in action;" and that no case is to be found in which a court of equity has deprived her of such property ; it remains to be seen, what “ equitable" grounds have been alleged for establishing against her the claim of the assignee. We are told, that “the property is altered.”! If the expression is meant to be applied to the transfer of the husband's interest to the assignee, its correctness cannot be denied. Undoubtedly, all that the husband has to transfer passes by the assignment. But this argument goes too far; for (as was observed by Sir Thomas Plumer 3), “in bankruptcy also the property is changed, every thing being transferred to the assignees which the bankrupt himself could lawfully part with.” Yet it is quite settled, that the wife's claim is not thereby affected. “ The property” (in this sense of the word) which the husband has, is a right to reduce the thing into possession during his life. What more a purchaser can take by the transfer is inconceivable, for how can an absolute right to any thing pass, by an assignment of any description, out of one who had in himself but a limited and defeasible interest? “ If,” said Sir William Grant, in Morley v. Wright,* “ the husband has but the right of reducing the wife's interest into possession,
1 Prec. Chan. 118. 2 Vern. 402. 3 Ib. 27.
2 1 Russell, 38. 4 11 Ves. 17.
how can he for valuable consideration, or otherwise, convey more than he has ? If he does not reduce it into possession, it clearly survives. If then he parts with it for valuable consideration, and the assignee acquires a right different from that which the husband had, he parts with something different from what he has." If, on the other hand, by “the property” it is meant that the subject matter is altered, what ground is there for such an assertion? It is as much “in action,” and therefore as much witbin the application of the rule of law, after the assignment as before. An action is as necessary on the part of the assignee as on that of the husband, with this difference, that though the husband might have sued for the recovery of it in his own name only, the assignee would have to employ the name of the wife to obtain possession of that property, the unqualified right to which would by law have become vested in her.
What then are the extraordinary claims of the party in whose favor the widow is to be made the passive instrument of her own deprivation, perhaps ruin? He is one who buys a right of action; well aware of the chance of the husband's dying in the lifetime of the wife, and before the chose in action is reduced into possession; and who is bound to know of the wife's legal right by survivorship! Is this a case calling for the interposition of the court of chancery? Should a man be so ill advised as to purchase land entailed of the tenant in tail, without taking care to have the entail barred before payment of his purchase money, equity would not compel the issue in tail to vest the inheritance in the purchaser. So (to come nearer to the point) “ in equity no agreement of the husband to part with the wife's inheritance shall bind the wife, or be carried into execution.”l There seems no reason for contending, that the purchaser of the wife's property, would in the one case any more than in the other, have that given to him by a court of equity, which he knew at the time of entering into the contract for purchase, it was not competent to the vendor to convey to him. The right to the chose in action vests as elearly in the wife in the one case, as her right to the inheritance in the other; and if there be any truth in the professions of the courts of equity, that a married
1 Tr. Fq. 5 1. c. 4. 5. 23.