Porter v. Caspar

Chalmers, J., delivered the opinion of the court. George C. Porter holds the land involved, just as he held that with the proceeds of which this was purchased; that is to say, seised with the fee as trustee for his wife for life, and remainder to her children. He could not defeat this trust by taking title to himself, nor will the property thereby become liable to those who have trusted him on the faith of his apparent ownership by virtue of the provisions of § 1779 of Code of 1871, which makes property standing in the husband’s name liable to his debts, where the credit has been extended in consequence of this apparent ownership. That section applies to the acts of a husband who, as husband, has obtained possession of and invested the money of the wife in his own name. It finds illustration and application in the ease of Brooks v. Shelton, ante, 353. In the case at bar, Porter was invested with the legal title of the original land, as trustee for his wife, by deed duly executed and recorded, from the Union Bank. He sold the land, and with its proceeds bought the tract now in controversy, taking title to himself. In so doing he was guilty of a breach of his trust, and acted, and is to be regarded, as an ordinary trustee, and not as husband. It is evident that a trustee other than the husband could not by such a proceeding have [362] subjected the land bought in his own name to his general individual debts, so as thereby to defeat the trust, however it might be as to mortgage debts. That the trustee in this case happened to be the husband cannot affect the result. The cross-bill, however, sets up that the judgment enjoined was based upon an indebtedness for plantation supplies furnished to Porter and wife for the use of the plantation, with the fee of which the husband was clothed as trustee for the wife, and also for supplies and necessaries for the family, purchased by the wife, or by the husband with her consent. The equitable life-estate of the wife would therefore be liable for this indebtedness, under the provisions of our statutes governing the separate property of married women, and under § 2295 Code 1871, which makes trust-estates liable to the debts of the cestui que trust, to the same extent as estates held in fee. Indeed, independent of this section, there would be no difficulty in subjecting such estates in equity. It is no objection to the maintenance of the cross-bill against the life-estate of the wife, that the original indebtedness has been merged in a judgment against the husband, as held in Clopton v. Matheny, 48 Miss. 285. Especially must this be so where the title of the property stands in the name of the husband, and the wife comes into equity to enforce a trust in her own behalf. In such a case she must certainly do equity, by paying such debts as were properly and legally chargeable to her, though they have become merged in judgments against the husband. There are no allegations in the cross-bill which could impose any liability upon the children’s interest in remainder, and the demurrer should have been sustained as to them. Decree reversed, and cause remanded with instructions to sustain the demurrer as to the children, and overrule it as to Mrs. Porter.