Chilton v. Cabiness

DARGAN, J. By marriage, the husband is entitled to all the personal property of which the wife was possessed at the time of the marriage, and also to all her ohoses in action, if he reduce them to possession during her coverture. But if they are not reduced to possession before the dissolution of the marriage, they remain the property of the wife. Andrews & Bros. v. Jones, 10 Ala. 401; 12 Pick. Rep. 173 ; 11 S. & R. 325; 8 Mass. R. 99. The right then, that the husband takes in the choses in action belonging to the wife, is the right to reduce them to possession during the coverture, and if he do this, they become absolutely his own; if however, the marriage is dissolved, and they are not reduced to possession, they belong to the wife. By the bankruptcy of the husband, all his estate, real or personal, at law or in equity, passes to the assignee, and he holds the estate, and rights of the bankrupt, by the same title the bankrupt did, and in the same plight and condition. If the bankrupt had a legal title, the title of the assignee is a legal title ; if the bankrupt had but an equitable title, the as-signee has but an equitable title — and whether his title is legal, or equitable, it is subject in his hands to the same conditions and equities that the title would have been had it not passed from the husband. See Mitford v. Mitford, 9 Vesey, 87; Clancey’s H. & W. 127, and the cases there cited. This being, in my judgment, the correct rule of law, the only inquiry is, whether the bankrupt, Rezin R. Chilton, could, either in his own name, or in the name of himself and his wife, have sustained an action at law, to recover of the plaintiff in error, on the cause of action as described in the declaration ? The notes were given to Benjamin Silman, guardian of Mary Harding. P. Chilton was the principal, and the bankrupt, Rezin R, the security. The declaration does not show that the notes ever passed from the guardian, to R. R. Chil-ton, or that he has ever come to a final settlement with the guardian, or how the accounts stand betweeen the guardian and his ward. He may be entitled to retain all, or a portion [450] of the notes in his hands, to indehinify himself for advances made on account of the ward, ancj it is evident that the notes have not been paid, although the legal reipedy may be extinguished or suspended. Under thése circumstances, before any settlement of the guardianship h|as been had, or before it is ascertained how the account stands between the guardian and his ward, it cannot be permitted to a ward to sue at law on notes taken by the guardian, in his own name as guardian, and recover, and thus defeat the right the guardian has to retain for advances made to the ward; even if the ward can sue in hig’own name, on notes given to his guardian, as such, without indorsement, after a final settlement. We come to the conclusion, that had the suit been brought by the bankrupt and his wife, under the same facts alledged in the declaration, they would not show a legal right of action in them, and consequently the declaration does not show a legal right of action in the assignee. Let the judgment be reversed and tho cause remandedl Chilton, J.-, not sitting.