Perkins v. Cottrell

By the Court, Welles, J. The defendants should -have judgment on the demurrer, for the following reasons: 1. The second section of the act of 1848 (c/i. 200) was intended to apply only to property acquired after its passage and taking effect, and should not be so construed as to have a retroactive operation. While the plaintiff was the owner of the house and lot in question, she married Elijah H. Perkins, whose interests the defendants are seeking to acquire, or to sell on their execution. This was before the passage of the act. By the marriage, the husband became vested with an estate in the premises for at least the joint lives of himself and wife, and during his life in case of issue. That was an interest which might be sold on execution. Afterwards the husband assigned his interest to W. H. Perkins, who subsequently, and in May, 1842, assigned such interest to the plaintiff. This was in effect a reassignment to the husband, because it gave him the same right which he possessed before he assigned, and which he continued to hold until after the Cottrells and White obtained their judgment, and which was subject to the lien of such judgment. That the plaintiff has had the control, and received to her own use the rents, &c. by the husband’s consent, does not, in my opinion, vary the question; because he had the right at any time to refuse such consent and to assume the control and take the rents, when he thought fit. It was a vested right which was not taken away or destroyed by a temporary relinquishment of it to his wife. 2. If it was the intention of the act to apply to property acquired by the wife before and held by her at the time of its taking effect, it was void, as taking away a vested right of the husband, which could not be done without his consent, or by judgment of law; and was against the constitution of the United States, as_ impairing the obligation of the marriage contract between the plaintiff and her husband; and was also against the spirit of the state constitution, which declares that no person shall be deprived of life, liberty or property, without due process of law. 3. I can perceive no occasion for this action. No sufficient . ground is shown for-asking for the relief prayed for, on the sup [449] position that the judgment is not a lien. If the ground assumed in behalf of the plaintiff be true, there is no such cloud on the plaintiff’s title as to justify the interposition of the equity powers of the court for its removal. If the judgment is in fact a lien, the judgment creditor should have the benefit of it. If it is not a lien, it is by reason of the act, and the plaintiff will not be injured by the sale, nor her title be put in jeopardy. The cases where courts of equity have interfered, are where the lien was apparently valid, or colorable at least. [Monroe General Term December 2, 1851. Welles, Johnson and Taylor, Justices.] Judgment for the defendants on the demurrer.