Stehman v. Huber

The opinion of the Court was delivered by Lowrie, J. — When land is held in common by a married woman and others, and they all join in a partition, and her share is conveyed to her and her husband, the law looks at the character of the transaction, rather than at the form of the conveyance, in order to define her interest, and considers the share as still hers, a divided share being substituted for an undivided one. If the husband has paid money for equality of partition, and the conveyance be to the husband and wife, he acquires an interest in common with her in proportion to the amount. It is not important here to consider the interest thus acquired by the husband; but we may assume that the land was the wife’s as of the date of her father’s death in 1843. As the law then stood, the husband was immediately seised of an estate for life in right of his wife, and entitled to all the issues and profits thereof as his own property. On the 28th December, 1850, the husband conveyed his interest in the land to Jacob Eehl, who, on the 13th January, 1851, conveyed it to the wife; but the conveyance to Eehl has been tried on correct principles, and found to be fraudulent as to this creditor. The result of course is, that he has a right to treat the land as the husband’s for life, and it is very difficult to prove so plain a corollary as his right to levy on the crops, which, as to him, ought to be and are the husband’s. The Act of 1848 has nothing to do with the case ; for it does not mean to take away any previously vested rights of the husband, or to [263] allow him to give them away in fraud of his creditors. There is no error in the ease. • Judgment affirmed.