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how can he assign over to another the right to reduce it into actual possession ? The husband's right is merely a right to obtain possession of the subject, when the period arrives at which his wife is entitled to the possession of it; and if he dies in the meantime, leaving his wife surviving, his right is gone, and the right of the surviving wife takes effect. The assignee for valuable consideration with notice must take the right as the husband himself had it; he buys the chance of the husband's outliving the wife, or of the reversionary chose in action falling into possession during the coverture; and he must wait to see how the event turns out.

[27] Suppose that a married woman is entitled to a bond debt payable upon the death of A. B., if her husband assigns this for a valuable consideration during coverture, and if he dies in the life-time of A. B., in whose name would an action on the bond be brought? The assignee could not bring his action in the name of the husband; he would be obliged to bring it in the name of the wife but what obligation would she be under to recover this debt on behalf of the assignee ? or what right would he have to use her name for such a purpose? The husband might contract that the assignee should be at liberty to sue in his name at any time, or in the name of him and his wife during the continuance of the coverture; but could he give authority to a stranger to sue in her name after his own decease? The bond debt was a chose in action; assignment could not alter its nature; and continuing to be a chose in action, it would be the absolute property of the surviving wife.

It is admitted that an assignment in bankruptcy does not deprive the bankrupt's wife of her right by survivorship to her reversionary choses in action: now where is the difference between that species of assignment and an assignment to an individual for valuable consideration? If the wife's right is to prevail only as between her and her husband, and not where third parties acquire an interest, why is it not barred in the former case as well as in the latter? It is said that an assignment for valuable consideration to a particular assignee changes the property; but in bankruptcy, also, the property is changed, every thing being transferred to the assignees which the bankrupt himself could lawfully depart with. It has been contended, that, as the husband's assignment will transfer the future interest of the wife at law, where the subject is capable of a legal transfer, so this [28] Court, following the law, ought to give full effect to his assignments of those future interests of her's, which, though not assignable in law, are assignable in equity. But though a future chose in action, which is not assignable at law, is assignable in equity, the assignment does not alter the nature of the thing. It passes the interest of the assignor, but the subject remains what it was beforea chose in action not reduced into possession. A court of equity will not refuse to give effect to the assignment, so far as the assignor had any right or interest to assign; but where is the authority for saying, that his assignment shall alter the nature of the thing, and cause that thing to be regarded as no longer a chose in action?

The current of authorities, showing that the Court will not receive the wife's consent to part with her reversionary property, bears strongly on the question. If the assignment of the husband passes the interest to the assignee, and destroys her legal right by survivorship, all that could remain to her would be an equity to have a settlement; and there can be no reason why she should not be permitted to extinguish by her consent that equity as completely as if it were an equity attaching upon property in possession. The Court, however, will not take her consent while the fund remains in reversion; and the reason which it has assigned for this refusal is, that it will not prejudice the future right which the wife may have by survivorship. The language of Sir William Grant, in Woollands v. Crowcher (12 Ves. 177), is very strong: "In this instance the object is not to bar her equity to have a settlement, but to bar her right to survivorship; for upon his death it belongs to her entirely. She is giving up, not her equity only, but her entire right by survivorship. That is not the case in which the Court takes [29] her consent. If the husband has a right to convey, let him exercise his right. But why this Court should join, and aid him for that purpose, I do not know."

Such are the general views which I now take of the question, and with reference to which I wish that it should be argued again.

C. XVIII.-1*

Feb. 3, 1824. The case was again argued by Mr. Shadwell on the one side, and Mr. Sugden on the other.

Mr. Shadwell's argument consisted of a brief recapitulation of the principles and authorities on which he had before relied.

Mr. Sugden for Rose. The ground, on which we rest our claim, is, that, by the general opinion and practice of the profession, supported by a series of dicta of the most eminent Judges, commencing at a very early period, and never called in question till the time of Hornsby v. Lee, the husband has been considered as having the power by assignment for valuable consideration to make a conveyance of his wife's reversionary interest in a chose in action, which shall be valid against her surviving. How much weight is due to such an uniform current of opinions, practice, and dicta, especially when unopposed (as is the case here) by decision or dictum on the other side, we may learn from the deference, which, in Maundrell v. Maundrell (10 Ves. 246), Lord Eldon paid to a similar species of authority.

[30] It is said that this question must be determined by analogy to the extent of the husband's legal dominion over the wife's choses in action. We do not assent to that position; but even admitting it for a moment, what is the rule at law? Lord Holt has told us (1 Salk. 326)-"When the wife hath any right or duty which by possibility may happen to accrue during the coverture, the husband may by release. discharge it." Thus he can destroy her right by survivorship; nor has she any means of protecting it against his acts. The anonymous case from Rolle (2 Rolle, 134) proves that he can by release discharge her right to the future receipt of a reversionary legacy. Equity must by analogy give at least equal efficacy to his assignment. Such interests being assignable in equity, though not at law, the operation of his absolute assignment must be co-extensive with his right in and power over the subject; and the extent of that power and right is manifested by the effect of his release. Accordant with these authorities are the observations which occur in the Duke of Chandos v. Talbot (2 P. Wms. 608), and upon which the Lord Chancellor seems there to have acted that "though a chose in action, as a bond, &c., was not in strictness of law assignable, yet in equity it was, as every day's experience showed; that though the wife was an infant when the assignment was made, yet that could not be material; for if she had been of age and joined, the deed as to her would have been void, and she might have pleaded non est factum, but being a personal thing, the husband alone might assign it; and with regard to its being a contingency until the wife Dorothy should come to her age of twentyfive, it had been determined that the possibility of a term, viz. where a term was devised to A. for life, remainder to B. for the residue thereof, such possibility might be assigned [31] even by the husband alone, as appears from the case of Theobald v. Duffay, decreed first by Lord Macclesfield, approved afterwards by the present Chancellor, and last of all by the House of Lords. But were it not in strictness to operate by way of assignment, yet it would be good as an agreement, especially when made for a valuable consideration." The latter words are not unimportant; for the circumstance of a contract for valuable consideration is in many cases the very foundation of the validity which equity confers on those assignments which are inoperative at law. Was it ever doubted that the husband can assign the reversionary interest of his wife, expectant on an estate for life, in a term of years; (2) yet that is a mere possibility. Mrs. Bolton's interest in this fund is higher than a possibility and the husband's assignment of it must have at least as much efficacy as his assignment of her possibility in a term of years would have.

Littleton's definition of a release has been cited. Without entering into any discussion as to the exact import of his words, it is enough to answer that Littleton is there speaking of real rights in real property. Besides, the argument, which is used on the other side, is in truth an argument in support of Rose's claim. It is said that a man cannot release a right which he has not; let it be so; now it is proved by authority that the husband may release his wife's future legacy, or any interest or duty of hers which may by any possibility come into possession during the coverture; since, therefore, his release is of such power, he must have a right in her future chose in action, which enables him to defeat her chance of survivorship [32] That such was Lord Hardwicke's notion, appears from the dicta which he uttered at different times, and particularly from those which are to be found in the reports of the cases of Bates v. Dandy (2 Atk. 208), Grey v. Kentish (1 Atk. 280),

and Hawkyns v. Obin (2 Atk. 549). So in the earlier case of Lord Carteret v. Paschall,(7) before Lord Chancellor King, where the dispute was between the assignee of the husband and the representative of the surviving wife, we find, that "it was agreed, that, where the baron is thus (that is, in right of his wife) entitled to a chose in action, as he may release or forfeit it, so if he should assign it for a valuable consideration, it would be good." It is in vain to attempt to construe away the effects of such expressions as those which have been cited. When a Judge, like Lord Hardwicke, says, that this Court will support the husband's assignment for valuable consideration of the wife's possibility, could he have meant that the Court will not support it against the wife's right by survivorship? When he was laying down so important a proposition, could the contingency of the survivorship of the wife (an obvious alternative in every question concerning marital rights) be absent from his mind? To put such a construction on such language is to deny the dictum and not to explain it. It is not so that Sir William Grant has dealt with the opinions uttered by the great Judges of former times. (9 Ves. 99.) "By an assignment for valuable consideration," he observes, "it is said she (the wife) is bound [33] both as to choses in action and equitable interests; Bates v. Dandy, and the case I before referred to, Lord Carteret v. Paschall. Supposing this doctrine to be established, the question then would be, whether an assignment in bankruptcy be of the same nature and produces the same effect as an actual assignment for valuable consideration." He adds, "what is supposed to pass to an assignee for valuable consideration, is the absolute right to the property wholly freed from her (the wife's) contingent right by survivorship. If such be the rule, it is the favour a court of equity shews to such a purchaser, that operates, as in many cases it does, to give him a better situation than the party from whom he derives his title." Commenting on the decision in Grey v. Kentish, the same Judge remarks (9 Ves. 102)-" In Bates v. Dandy,(8) and Hawkyns v. Obyn, his Lordship held, [34] that even a possibility of the wife might be assigned by the husband for a valuable consideration. It must, therefore, have been, because the assignees (viz. in Grey v. [35] Kentish) did not claim under an assignment of that description, and not because the interest was not assignable, that the claim of the widow prevailed." Sir W. [36] Grant assents to the dicta; he does not deny the rule, but endeavours to account for it.

In Doswell v. Earle (12 Ves. 473), a bill by the surviving wife seeking relief as for a breach of trust against an exe-[37]-cutor, who, during the continuance of a previous estate for life, with her consent, had paid her reversionary legacy to her husband was dismissed. Her consent was nothing: the executor, therefore, must have been considered as having paid the money to a person who had a right to make the legacy his own, and the means of acquiring complete dominion over it; for it is impossible to imagine, that the wife's right by survivorship can depend on the caprice of an executor. Woollands v. Crowcher (12 Ves. 174) is rather an authority for than against Rose's claim; for there the consent of the wife to part [38]-ing with reversionary property was taken. At the same time it ought to be observed, that, in the argument of that case, as well as in the report of it, the nature of the rights of the parties seems to have been mistaken; the interest of the wife being supposed to be contingent, when in fact it was vested. From that mistake, the hesitation, which the Court at first felt in making the order, might in some degree arise. Richards v. Chambers, and Seaman v. Duill (10 Ves. 580), have no application to the present question; for in both of these cases the interest of the wife was such as could not by possibility accrue during the coverture. In Pickard v. Roberts (3 Madd. 385), that circumstance was wanting, which constitutes the foundation of our claim-there was not an assignment for valuable consideration.

It is asked, whether the assignment is a reduction into possession? We reply, that reduction of a chose in action into possession is not confined to possession by actual receipt of the thing itself. The husband reduces his wife's chose in action into possession, when he does not leave it in the same state in which he found it, when he deals with it as his own, when he alters the property in it.(9) If a husband assigns his wife's present debt, she is barred of all claim to it, even though she should survive him; yet he has never had actual possession of the debt.(10) It is enough that he has done that which is tantamount to a reduction into possession.

[39] We admit, that, if there has not been during the coverture actual receipt of the wife's debt or duty, and the wife survives, an action to obtain possession of it must be brought in her name. But this objection applies to choses in action immediately recoverable as much as to those which are future; and, in truth, there is no substance in it for the effect of the husband's assignment is to make the wife a trustee for the purchaser, who, of course, will be entitled to sue for it in her name. This is illustrated by the doctrine concerning debts due to her on mortgage. Formerly a distinction was taken between the wife's mortgages in fee, and her mortgages for a term of years; and it was supposed that the husband could, during the coverture, dispose of the latter, because he could assign the term, but that he could not dispose of the former, because, unless a fine were levied, the fee could not be taken out of the wife. That doctrine was afterwards altered; and in 1 P. Williams, 460, the rule was laid down, that, when the husband became bankrupt, a debt due to the wife, and secured by a mortgage in fee, passed to the assignees; for, although the inheritance of the lands continued in her, she became a trustee of the legal estate for them.

Much stress has been laid on the assumed principle, that an assignment can only place the assignee in the situation of the assignor, and that the husband cannot convey a better right than that which he himself had. The answer to this argument is, that it proceeds on a mistake in law; for an assignor may place an assignee [40] in a better situation than he himself stood in, and may confer greater rights than he himself had. For instance, where the wife has a present term of years, it will survive to her, if during the coverture the husband does no act to dispose of it; and his will, affecting to operate upon it, would be mere waste paper. Yet let him assign it even without consideration, that assignee will not only hold it against the surviving wife, but will transmit it to his personal representatives, and may dispose of it by his will. Thus the assignor and the assignee are in very different situations, and clothed with very different rights. Still more is that the case, when the assignment is for valuable consideration. In George v. Milbank (9 Ves. 190), the purchaser from an appointee was in a better situation than the appointee himself.

To contend that the wife's right by survivorship is not barred by the husband's specific assignment for valuable consideration, because it is not barred by the general assignment in bankruptcy, is to reason in a circle; for such an argument proceeds on the assumption that these two species of assignment must have the same effects and in the same degree. There is not a shadow of authority for that doctrine; no such notion was entertained by those Judges who supported the right of the wife by survivorship against the assignee in bankruptcy; and there is a regular and uninterrupted succession of authorities, acknowledging and confirming the distinction between the general assignee in bankruptcy and the specific assignee for valuable consideration. Lord Hardwicke, in the cases already referred to, has again and again admitted the distinction. In Worrall v. Marlar (1 Cox's P. Wms. 459, in the note), Lord Thurlow states, "that a court of equity has much greater consideration for an [41] assignment actually made by contract, than for an assignment by mere operation of law." In Mitford v. Mitford, Sir William Grant says (9 Ves. 100), "I have always understood that the assignment from commissioners, like any other assignment by operation of law, passed his (the husband's) rights precisely in the same plight and condition as he possessed them. Even where a complete legal title vests in them, and there is no notice of any equity affecting it, they take subject to whatever equity the bankrupt was liable to. This shews they are not considered purchasers for valuable consideration in the proper sense of the words. Indeed a distinction has been constantly taken between them and a particular assignee for a specific consideration, and the former are placed in the same class as voluntary assignees and personal representatives. Thus in Jewson v. Moulson (2 Atk. 417), Lord Hardwicke says, it is clear if the husband makes a voluntary assignment of the wife's portion, the volunteer must stand in the place of the husband; and there is the same equity as to assignees of bankrupts; for it is the law that casts it upon them; and in Worral v. Marlar Lord Thurlow says, a court of equity has much greater consideration for an assignment actually made by contract than for an assignment by mere operation of law; for as to the latter, when the equitable interest of the wife was transferred to the creditor of the husband by mere operation of law, he stood exactly in the place of the husband, and was

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subject precisely to the same equity with respect to the wife." In Wright v. Morley (11 Ves. 17), the same Judge, with reference to the question, whether there is any difference between an assignment for valuable consideration and by operation of law, says: "I agree Lord Alvanley did uniformly maintain that there was no difference between [42] them with reference to the equity of the wife; at the same time, looking with great attention to the point in Mitford v. Mitford, it appeared to me that there were some cases which it was very difficult to reconcile with that proposition, for there is hardly any other ground upon which Lord Hardwicke proceeded in some of the cases before him." It is not necessary for us to carry the distinction so far as Sir William Grant seems to think Lord Hardwicke carried it, or to dissent from Lord Alvanley's opinion; for we do not need to deny the wife's equity to a settlement, even against a particular assignee for valuable consideration. The wife has here the half of the fund left to her; and what she claims, and we resist, is—not an equity to have a provision made for her, but a right to the fund itself.

The Master of the Rolls [Lord Gifford]. The property in question is a moiety of one seventh share of a fund in Court, which Mrs. Bolton was entitled to have transferred to her upon the death of Isabella Purdew. In October 1812, she, and her husband, who was then a prisoner for debt, transferred, for valuable consideration, this moiety to Rose. In the assignment Bolton contracted, that, immediately after the death of Isabella Purdew, Rose, should have the right to demand and sue for this personal chattel in the name of Mr. and Mrs. Bolton, or either of them, and that in the mean-time his life should be insured. Bolton died in 1819, in the life-time both of Isabella Purdew and Mrs. Bolton. The tenant for life being now dead, Rose insists upon his right under the assignment; and that raises the general question— whether, where the wife has an interest in reversion or remainder in a personal chattel, expectant on the death of another person, and the husband assigns this interest for valuable consider-[43]-ation, and dies before the determination of the life-estate, the right of the surviving wife is barred.

I shall first examine this question as if it were new, and as yet untouched by authority. In that way of considering it, there are two points which deserve attention first, what is the nature of the legal right of the husband in a personal chattel to which the wife is entitled in reversion or remainder? Secondly, has the person, to whom for valuable consideration the husband assigns a chattel so circumstanced, the same right with his assignor, or has he a different and a better right?

What is the universal and admitted principle of the law of England, which governs the choses in action of a married woman, and determines what is to be the effect of the marital right of the husband in them? I shall state the doctrine as I find it laid down in Mr. Roper's treatise on the law of husband and wife: "Marriage is only a qualified gift to the husband of his wife's choses in action, viz. upon condition that he reduce them into possession during its continuance: for, if he happen to die before his wife, without having reduced such property into possession, she, and not his personal representatives, will be entitled to it. (Roper's Law of Husband and Wife, i. 202.) Such is the proposition with which that respectable writer sets out in impeaching the authority of the decision in Hornsby v. Lee. What then is meant by a chose in action? The terms "chose in action" and "reduced into possession," are legal phrases, not borrowed from a court of equity, but derived from the language and the doctrines of the common law; and in dealing with them, it is of importance that we should confine ourselves strictly to the subject before usa personal chattel, and not perplex [44] ourselves with principles applicable only to real property. The right of property in a personal chattel is inseparable from the possession; the law of England does not know such a thing as the possession of a personal chattel being in one man, unless by the authority of the rightful owner, while the right of property is in another. If you have not the possession, you may have an immediate right of action; but till you recover the possession of the chattel, you have not the right of property. When it is reduced into possession, the property in it vests, and not before; for the property in a personal chattel does not become complete, till possession is obtained. Therefore the law of England, speaking of the different sorts of property which a married woman may have, and designating a chose in action to be a mere right of action to a personal chattel not in actual possession, holds, that the husband must, as a condition without the fulfilment of

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