Brevard's Executors v. Jones

B. F. SAFFOLD, J. In 1854, B. C. Jones became the administrator, in Alabama, of the estate of E. A. Brevard, a resident citizen of North Carolina, who left there a will, of which the appellants were the appointed executors. On the 29th of May, 1869, these executors, on a bill filed in Montgomery county in 1860, against Jones and his sureties, for the settlement of his ancillary administration, recovered a decree for a large sum against the sureties and his administrator, he having died after the commencement of the suit. An execution on this decree was levied on certain lands, an undivided half interest in a stock of drugs, &e., and one hundred shares of stock in the Red Mountain Iron & Coal Company, as the property of B. R. Jones, one of the sureties. The appellee, his wife, claimed the property, as her own, and not subject to the payment of the debt for which the levy was made. By this bill she obtained an injunction against the sale, and a decree declaring her title. — 238 — The appellee’s claim rests upon the following facts: In January, 1867, she recovered against her husband, B. R. Jones, a decree in equity for $9,098.44, and a further sum of $4,500. Two executions were issued on the decree, both dated December 18, 1868, and returnable by their terms on the first Monday in June, 1869. They were levied on the lands in controversy, as the property of the husband, and said lands sold by the sheriff, on the return day of the executions, for $13,800, Mrs. Jones becoming the purchaser. The proceeds were applied in full satisfaction to the larger debt, and in part to the other. A conveyance was made by the sheriff to the appellee as the purchaser. The shares of stock stood on the books of the company as originally issued to her. The half interest in the drug store was personal property, held by her under parol contract of partnership with Cary. [1.] So far, the legal title to all of the property is vested in the appellee. There seems to be no interest of B. R. Jones, subject to sale under the execution of the appellants, and, consequently, no necessity for her resort to equity. But it is evident, from facts presently to be stated, that as soon as the sale under the appellants’ execution should be effected, the appellee would be liable, for a time limited only by the statute of limitations, to assault by the purchaser, claiming whatever interest in the property he might be able to show existed in B. R. Jones. As the decree of January, 1867, would not be conclusive against the assailant, the contest would involve transactions of husband and wife, and rights of property, perhaps, only sustainable in equity. [2.] Mrs. Jones, the appellee, was married in 1841, when the law gave to her husband absolutely whatever of personalty she possessed, with the right to reduce to possession such as had not been received; and, in her real estate, a life interest, as tenant by curtesy, after issue born; all of which could be sold away from her, for the payment of his debts. But the real estate remained the property of the wife, unless both of them converted it into personalty; and on the death of the wife, whether before or after the death of the husband, it descended to her heirs. Bibb v. McKinley et al. 9 Porter, 636; Nunn v. Givhan, 45 Ala. 370. Between the years 1855 and 1858, the appellee and her husband sold two parcels of land, one of which was given to her by her mother, Mrs. Taliaferro, in 1843, and the other descended to her previously from her father. For the first, $2,000 were obtained, and for the other $2,<500. The money was appropriated by the husband to his own uses. The laws protecting the estates of married women certainly fastened on to these lands, to the extent of securing to the wife whatever interest — 239 — she had in them at the date of their passage. They may not have divested the husband of any right which he had previously acquired by his marriage, and was in the enjoyment of. When the sale was made, some years after their passage, the husband could not have taken the proceeds as personalty. That belonged to the wife, as did the lands. Whatever change or alteration of right was effected in the property by its conversion into money, must be held to have enured to the benefit of the wife. In Sessions v. Sessions, 33 Ala. 522, it was said, that the sale operated as a conversion of the realty into personalty, which, as new property, became her separate estate by virtue of the Code, § 1982 (R. C. § 2371). Even if it were practicable to trace the husband’s marital right to the use of this property, through its transformation, it is inexpedient and inequitable to do so against the wife, in favor of creditors of the husband, whose claim accrued after the enactment of the statutes referred to, which made so radical a change in the law. It was within the authority of the legislature to exempt the rents, income, and profits of the wife’s property from the payment of the husband’s debts, while permitting to him the enjoyment of them ; and this, I think, the law has done. At any rate, real and personal property are subject to the laws which govern them respectively, and may be converted by the owners from one into the other before the rights of others have attached. [3.] In 1849, B. R. Jones conveyed to Mrs. Taliaferro, in trust for his wife and children, several lots of land in the city of Montgomery, and a considerable amount of personal property. Mrs. Taliaferro was a naked trustee, holding the legal title merely. In equity, Mrs. Jones and her children were the owners as well as the beneficiaries of the property. Her interest, which was a life estate, was subject to the act of 1848 for the protection of the estates of married women, to the exclusion of her husband’s creditors, in any respect not protected by the deed. The conveyance is to the trustee, in trust “ for the said Frances Amelia Jones during the term of her natural life,” &c., “ not in any event to be subject to the debts, contracts, liabilities, or forfeitures of the said Benjamin Rush Jones,” &c. The “married woman’s law ” operates on all the property or interest of the wife, except so far as the terms upon which she obtains it require the application of a different rule. Where the contract is silent, the law must govern. Molton v. Martin, 43 Ala. 651. [4.] Upon one or more of the above mentioned lots there were buildings, which B. R. Jones removed, and placed on a lot belonging to himself. The removal was made with the understanding between him and his wife, that they were to be — 240 — replaced with others of more value. This precludes the idea of a gift of her own or any larger interest to him. The damage thus done to the fealty, the houses not having been built, was estimated in the decree of 1867 at $6,000. [5.] In 1855, the appellee received from her mother two slaves, Allen and Polly, which her husband sold for $2,100. Afterwards, ,on the final settlement of her mother’s estate, she became entitled to $1,198.44. These two sums of money her husband appropriated to his own use. It is claimed for the appellants, that the property and money so received were but the accretions of property left to the mother for her life only, with remainder to her children, by the will of David Taliaferro, her husband; and, consequently, that as a vested remainder, and by virtue of the possession of the tenant for life, B. R. Jones had acquired actual possession. Without discussing the correctness of the sequence, it is sufficient to say, that the fair interpretation of David Taliaferro’s will gives to his wife an absolute title to her portion of his personal property. He directs the keeping of his property together, under the control and management of his wife and his executors, until the coming of age or marriage of the eldest child, who was then to receive an equal portion according to the number of children surviving, counting their mother as entitled to a child’s part. The portion of the eldest, so ascertained, was to be the standard of distribution amongst the younger children respectively, as they married or came of age. But, if his wife should marry again, her interest might be withdrawn on that event, and, perhaps, the keeping together abandoned as to the ghildren’s shares. He then devises to his wife a life estate in the land on which he was residing. His appropriation of $5,000 out of the profits of his property for the benefit of his son William Benjamin no more affected the tenure of Mrs. Taliaferro’s estate than it did the children’s. All of the property above described, to wit, the two parcels of land converted into personal property, the damages on account of the removal of the houses, the two slaves, and the distributive share in Mrs. Taliaferro’s estate, aggregating in value about $13,798, clearly belonged to the appellee, as her separate statutory estate, and was not subject to the payment of her husband’s debts. It was so decreed by the chancery court in 1867, and the land in controversy was sold under the judgment then rendered, and purchased by the appellee in satisfaction of it. [6.] In 1854, the appellee received from her mother $1,000, which her husband also appropriated. In 1867, he supplied her with that amount, with which she purchased or paid for the stock in the Iron & Coal Company. He had previously, — 241 — in 1862, subscribed for stock in tbe company, but had not paid for any portion of it. In 1867, tbe company reorganized its affairs, and offered to its subscribers a certain amount of stock at a specified price, in lieu of tbe former subscriptions. Tbe appellee complied with tbe terms in respect to ber husband’s subscription, and received tbe certificate and stock in ber own name. This was a legitimate investment of so much of ber statutory estate. [7.] In 1866, ber husband gave her $8,500, witb which she purchased tbe half interest in the drug store. She claims that this money was tbe profits of tbe property conveyed by him in 1849 for tbe benefit of herself and ber children. Tbe appellants insist that, as she bad a life estate in all of that property, and ber husband was not accountable to ber for tbe profits, bis gift to ber in 1866 was in fraud of the rights of bis creditors. Tbe identical profits of the wife’s separate statutory estate do not belong to tbe husband. If be misapply them, so that she is deprived of proper maintenance, be will be removed from tbe trusteeship, and tbe control of tbe property, witb its rents, issues, and profits, will be given to her. R. C. §§ 2383, 2384. They are not subject to the payment of bis debts. R. C. § 2372. If he should invest them in ber name, or for ber account, such investment would be her property. Must be, in making tbe investment, use the identical profits ? If be were to buy a tract of land for himself, and one for bis wife, for cash, and pay for bis own with ber money, and for hers witb bis money, would both parcels be his, without regard to bis intention ? If so, then circumstances of indifference may overrule reason. A person may sell his own property bond fide, or make a simulated sale of it, before bis creditor obtains a lien. In the first case, be will defeat his creditor of tbe property. In tbe other, he will fail on account of bis fraud. If be restore to his wife property for that of hers which be bad taken, and which was not his, nor subject to bis debts, is there no consideration for it, because be is not accountable to ber, and husband and wife cannot contract witb each other ? He is not forbidden to account to her, and he need not contract witb ber. Restitution is not alone of tbe specific thing, but it may be of something else. Tbe creditor’s ground of complaint, in such case, is not tbe restitution, but some imposition practised upon him, whereby be was induced to give the credit, or is withheld from collecting his demand. In short, tbe creditor is not injured, if tbe husband honestly restores to bis wife what be bad taken from her. The rule is tbe same as between other persons, if be chooses to account. Tbe justice of it is shown in tbe fact, — 242 — that by refusing to account he may subject the corpus of her estate to sale for the necessary support of the family. [8.] No executions were issued on the decrees of January 6, 1867, in favor of the appellee against her husband, until after the expiration of a year and a day. When issued, on the 18th of December, 1868, they were made returnable on the first Monday in March, 1869. The sheriff having failed to take any action by that time, the register’s clerk who had issued the executions, a few days after the return day, erased the word “ March,” and substituted “ April; ” and in like manner he afterwards erased “April,” and substituted “ June.” On this last return day, the sale was made. The executions were not at any time formally returned by the sheriff, but on account of his failure to enforce them, the register’s clerk, on his request, extended the return day. The statute very explicitly declares, that “ no execution shall issue on a judgment or decree of the circuit, chancery, or probate court, on which an execution has not been sued out within one year after its rendition, until the same has been revived by scire facias, ” &c. R. C. § 2820. The Code of 1852 was to the same effect in respect to judgments of the circuit court. Code, § 2419. The law previously, as far back as 1807, allowed execution on the judgment of any court of record, within the year. In 1835, the legislature, because doubts had arisen whether a scire facias would lie on a judgment where execution had not issued within the year and day, enacted that the plaintiff should have it. Clay’s Dig. 199, § 1; 207, § 29. If it was doubtful whether a scire facias would lie, it must have been certain that an execution could not have issued. Under these older laws, this court has held, that executions issued after the year and day were not void, but voidable at the option of the defendant alone, unless other persons had in the mean time acquired rights. Collingsworth v. Horn, 4 S. & P. 237; Boren v. McGehee, 6 Port. 432; Fournier v. Curry, 4 Ala. 321; Jackson v. Bartlett, 8 Johns. 361; Pollard v. Cocke, 19 Ala. 188. It can make no difference if the plaintiff in execution is the purchaser, because the question is not one of notice, but of the status of the execution. [9.] The effect of the alterations of the return day is fully contained in the inquiry, whether the executions, when they were issued, might have been made returnable on the first Monday in June, 1869. If they could have been so made, they appeared on the face to be valid and operative at the time of the sale. In a collateral proceeding, the purchaser may rely on the judgment, execution thereon, levy, and sheriff’s deed. Ware v. Bradford, 2 Ala. 676. The erasures and interlineations were not, of themselves, sufficient to vitiate the executions; — 243 — and their explanation rested solely on the parol testimony of the register’s clerk and the sheriff. Even on a direct proceeding to quash the executions, a harmless explanation, such as, that the register wrote “ March ” and “ April ” by mistake and erased them, and substituted “ June ” before issuing them, would not have shown irregularity. Harrell v. Martin, Pleasants & Co. 6 Ala. 587. [10.] Writs from the court of chancery, for the collection of money, are to be made returnable on the first Monday of a month, to be specified in the writ. R. C. § 3478. “In all cases where an account is taken between the parties, and the amount of indebtedness between them ascertained by the decree of such chancery court, such decrees shall have the force and effect of judgments, and executions thereon may be issued by the registers,” which “ shall have the force and effect of executions issued from the circuit courts, and shall be levied, collected, and returned in the same manner.” R. C. §§ 3479, 3480. The varied relief which the chancery court is authorized to give, presents a reason why its process for the collection of money should not be so strictly confined as in the courts of law. The collection of money is rather an adjunct to its 'jurisdiction, which must often yield to its main purpose. For instance, it would formerly foreclose a mortgage, or enforce a vendor’s lien, by a sale of the property, leaving any balance due to the complainant to be recovered by him in an action of law; but for the sake of convenience, and to prevent a multiplicity of suits, it may now, under the authority of statutes, render judgment and enforce its collection by execution. The retention in the Revised Code of section 3478, which was anterior to section 3480, makes it our duty to give effect to it, if practicable, not inconsistent with a just interpretation of the latter. An execution levied, collected, and returned, is the work of the sheriff. He must return it at the time specified in the writ, whether that be a particular day, or simply “ according to law.” Forward v. Marsh, 18 Ala. 645. Section 3480, in respect to the return, is a direction to the sheriff, who has no discretion in the matter. Neither the law court, nor its clerk, is given any discretion about the return day of an execution issued from it. But the court of chancery, as a court of relief, must be allowed more latitude. On a decree for the foreclosure of a mortgage, or the enforcement of an equitable lien, the property must be sold, and the sale confirmed, and the balance due ascertained by the decree of the court, before an execution can issue. R. C. § 3479. This will take time, and equitable time should be given, which may extend beyond the next term of the court. Therefore was the return day left discretionary with the court, or the register, except that it must — 244 — be on tbe first Monday of a month. The lien and priority of such executions, if the return day is unreasonably postponed, are not involved in this case'. The appellants had acquired no rights between the teste and the return day; and as many of our chancery courts are held only once a year, a postponement less than one year would not be an unreasonable length of time. The decree is affirmed.