Mallory v. Vanderheyden

The Chancellor. Previous to the marriage of Mrs. Vanderheyden, all her estate was liable for the payment of this debt; whether it was held as separate estate or otherwise. And the question is whether it is equitable to permit her to hold that estate, in the events which have occurred, and to set her creditors at defiance. [22] The liability of l,he husband, for the debt of the wife, and td be sued jointly with her in an action at law for the recovery of ibe same, is at an end by bis discharge under the bankrupt act. (Miles v. Williams, 10 Mod. Rep. 160, 243; 1 Peera Wms. Rep. 249, S. C.) And no suit at law can be maintained against the wife, during the life of the husband, without joining him with her in the same suit., The remedy at law is therefore suspended as to the wife, or her estate, during the coverture. There is no doubt that the certificate of bankruptcy is an absolute discharge of the husband, and his estate, from all further liability for the debt of his wife. I think the reasoning of Chief Justice Parker in Miles v. Williams is conclusive on that point. He indeed intimates an opinion that the certificate of the husband will operate as an absolute discharge of the wife, even after the death of her husband. But he admitted there was no such question in .the cause which he was considering. Nor was there any thing in the English bankrupt act which, in terms or by implication, made the discharge of the husband a discharge of the debt as to the wife, and her estate. The seventh section of that act declared that the bankrupt should be discharged from all debts which he owed at the time he became a bankrupt, and that if he should be sued for any such debt, he should and might plead geherally that the cause of action accrued before he became bankrupt. But there is not a word in the act as to the discharge of the bankrupt’s wife, or her separate estate, or her reversionary interest in her real estate after the death of her husband. Nor is there any thing in our bankrupt act of 1841, which discharges the debts, as against the wife, by the discharge of the liability of the husband. Indeed, it would be manifestly unjust and inequitable to discharge the wife absolutely, and permit her to enjoy, or to dispose of for her own use, property which might have been reached by her creditors if her husband had not been discharged upon the surrender of his own property merely, and of that which belonged to him in right of his wife. The remedy by'action, therefore, as against the wife, and her estate, is only suspended by the discharge, during coverture. And where she survives her husband, ac [23] tians at law may be maintained against her for the debts which she contracted before her marriage; in the same mannej as if her husband had not been discharged from his liability. For upon the death of the husband, the debts contracted by her before the marriage, and which have not been recovered of her and her husband during her'coverture, survive against her: and the estate of her husband is not liable therefor. (Woodman v. Chapman, 1 Camp. Rep. 189. Chapline v. Moore, 7 Monr. Rep. 175.) On the other hand, where the husband survives the wife, although he is no longer liable for debts contracted by her while sole, however much he may have received by the marriage, her separate estate in the hands of her personal representatives is liable for those debts. (McKay v. Allen, 6 Yerg. Rep. 44.) The debt in this case still existing as against the wife, and her property' which belonged to her before marriage, and which is now holden for her separate use, and the remedy at law being suspended by the discharge of her husband, I think the vice chancellor is right in supposing the complainants could come into this court to reach her properly and have it applied to the payment of their debt. If a precedent were wanting, I should deem it my duty to make one in such a case. For where rights exist, and the remedy at law is inadequate to meet the equity and justice of the case, it is a part of the ordinary jurisdiction of this court to provide for such cases as they occur. But we have a precedent in the case of Briscoe v. Kennedy, (1 Bro. C. C. 18;) decided at the rolls in 1762, during the mastership of Sir Thomas Clark. There the creditor had no remedy by action against the husband and wife, because the husband had absconded, and the complainant had proceeded to outlawry against him : and had seized all his property, without being able to obtain satisfaction of the debt due from the wife. (See 2 Wils. 127.) The creditor then filed his bill in chancery to obtain payment of the wife’s debt out of her separate estate. The defendant’s counsel, in that case, as in this, insisted that the wife’s separate estate, during the life of her husband, was not liable for the [24] cfel't, contracted by her before marriage. But his honor decided that the effects of the wife, vested in her trustee for her separate use, were to be considered as the property of a feme sole. He therefore ordered the stock belonging to her separate estate to-be appropriated to the payment of the complainant’s debt and costs. The husband, in this case, was a necessary and proper party, not only to defend the suit for the' wife, but also as the trustee of his wife, whose concurrence in the sale and transfer of the trust property was, necessary to vest the legal title in the purchaser. For, as there was no other trustee, the legal title was vested in him, for the benefit of the wife, by the transfer of the stock into her name for her separate nse. And as he had no beneficial interest in the property, the legal title did not pass to the assignee in bankruptcy. The decretal order appealed from was not erroneous; and it ihdst be affirmed With costs.