Peacock v. Pembroke

Mason, J., delivered the opinion of this court. Upon an attachment issued out of St. Mary’s county court against Russell, the defendant in the present action, and which was laid in the hands of Pembroke, as garnishee, the latter pleaded nul tiel record and nulla bona. Judgment was rendered in favor of the plaintiff upon the issue in the plea of nul tiel record, and upon the trial of the issue in the plea of nulla bona, it was disclosed in evidence that the garnishee admitted his indebtedness for a balance due on land which he had purchased from Russell and wife, but that the land which he had purchased was the land of Mrs. Russell previous to her marriage, and that the notes or bonds were drawn payable to her. The debt upon which the attachment issued was a debt due by the husband. Upon this evidence the defendant prayed the court to instruct the jury, “that if they find that the garnishee, P^f)broke, had purchased from Russell and wife the maiden lajúl of the wife, and that the notes for the payment of the safflifc [282] were in her name, and that the debt for the recovery of which this action was brought, was due by Russell, the husband, .alone, then the plaintiff is not entitled to recover.” This prayer the court granted, and we are now called on to inquire into the correctness of this decision of the court below. We think the principles involved in this case have been fully settled by this court, in the case of the State vs. Krebs, 6 H. & J., 31, to say nothing of other cases and treatises upon the subject which might be cited. The present case we regard as a clearer one even than that of the State vs. Krebs. Here the mutation of the estate from real to personal, resulted from the act of the wife or feme: covert herself, while in the other it resulted from the operation of a proceeding under a statute, over which she could exercise no control. In the case of the State vs. Krebs, the court use this plain language: “We think that the mutation of her estate from real to personal, may be determined to be complete when the sale is ratified by the court, and when the purchaser has complied with the terms of it, by paying the money, if for cash, or by giving bonds if the sale is on credit. The bond passed to the wife by the purchaser is a chose in action, liable to be sued for and recovered by the husband at his pleasure.” The court further adds: “Let the law be considered as settled, that the husband may sue in his own name for money situated as this is, and it seems to follow, necessarily, that it may be attached by the husband’s creditors to satisfy a debt due by him.” , The case from which we cite was like this, an attachment sued out for a debt due by the husband, and laid upon credits-arising from the sale of realty belonging to the wife, and is therefore directly in point. .■brill be observed that no question of survivorship arises i^^Hcase. It is a case of a chose in action accruing to the ^^Hfuring coverture, and no rule is better established than ^Ht common law, personal property accruing to the wife ■ring coverture, including choses in action, vests- in the hus [283] band, on the principle that husband and wife are but one in law, and her existence, in legal contemplation, is merged in his. In addition to the authority already cited, we refer in support of the views we have expressed to the following cases: Newcomer vs. Orem, 2 Md. Rep., 297. Shuttlesworth vs. Noyes, 8 Mass., 229. The Fourth Ecclesiastical Society in Middletown, vs. Mather, 15 Conn., 587. We reverse the judgment and remand the case. Judgment reversed and procedendo awarded.