
    FOGARTIE AND WIFE VS. HUBBELL.
    The effect of a Sheriff’s sale is to transfer to the purchaser all the legal title ,of the defendant; and therefore, after a sale under execution, agaipst husband and wife, of personal property previously conveyed in trust, for the use of the wife, husband and wife cannot maintain trover against the purchaser for the property sold:- And although their possession might have been a sufficient title to sustain the action against a wrong doer, such title is also t,he subject of levy and sale. Perhaps the trustee may have a right of action.
    The property in question had been conveyed by a former husband, in trust 'for the sole and separate use of his wife, and after.her decease, to the children of that marriage, if any, and if none, to the said wife and her heirs, “not subject to the debts of her present or any future husband.”
    O’Neall, J. held, that as there was no issue of the former marriage, the trust was executed, and the legal estate vested absolutely in the wife, and that, therefore, the execution authorized the sale: And that the provision of the deed that the property should not be liable for the debts of the husband, is a subsisting trust in her favor, which might be set up in Equity, but could not be noticed at law.'
    
      Before Earle, J. at Charleston, June, 1835.
    Trover for iyv° negroes, Die and Tom. The negroes once belonged to David Sealy, the former husband of the plaintiff, Mrs. Fogartie, and duping covert,ure, (in 1827,) he conveyed them, by deed, to J. M. Lowry, in trust for the sole and separate use of E. A. Sealy, now Mrs. Fogartie, and after her decease, to the children of their marriage, if any, and if tioile, to the said E. A. Sevly and her heirs, not subject to the debts of her present or any future husband. Seaiy was indebted to the defendant by note, and he brought suit thereon against the present plaintiffs, since their intermarriage, and obtained judgment against them as executors de son tort, on which execution issued de bonis testatoris, vel si non, de bonis propriis. On this execution, the negroes were sold, and the defendant purchased them.
    The jury found a verdict for the plaintiffs : and the defendant moves for a new trial, on the following grounds :
    Because his Honor instructed the jury that the judgment and execution against husband and wife, for a debt or default of the wife, dum sola,did not authorize the sale of the negroes conveyed by the deed of 1827, to the- sole and repárate use of the wife: Whereas, it is respectfully submitted— ■ ■ '
    
      First. — That the bona Jides of the deed of 1827, should have been left to the jury.
    
      Secondly. — That the judgment and execution authorized the sale of the negroes in question, as the property of E. A. Fogartie.
    
      Thirdly. — That the plaintiffs, by the form of their action, were preclude ed from saying that the negroes in question were not the property of Fogartie and wife, and the Court should have instructed the jury that the’ plaintiffs were not entitled to recover. On which grounds, defendant insists, that the verdict should be set aside, and the plaintiffs non-suited; or else that a new trial should be granted.
    The presiding Judge thus reports his views of the law :
    “On the general and well settled principles of the law of Baron and1 Feme, I was of opinion that the separate property of the wife, secured to her by deed, could not be sold under execution, against husband and wife,' upon a judgment against both, during the coverture, although for a debt or default of the wife before marriage. That was the only question seri j ously made or argued. By the marriage, the husband acquires an absolute interest in the personal estate of the wife, and the rents and profits of her lands. Whatever she acquires during coverture, by gift or bequest, by labor or otherwise, is his. The law thus transferring to him the fund to which creditors looked for the payment of their debts, also thakes him liable for them. And he is thus liable, whether he obtains a portion with her or not. In consequence of his thus becoming liable, she is discharged, during the overture. He is answerable -for all actions for which his wife stood attached, and for all debts or defaults for which she was liable at the time of the coverture. As this liability of the husband arises from the' coverture, it subsists only during the coverture; and although the wife must be joined, yet they are not sued as two persons jointly and severally liable, but as one person in law. They ' must plead jointly, and will not be allowed to sever in pleading. But a judgment thus recovered against both as one person, in law, can only be enforced upon the property of the husband. It would be a total departure from the principle which regards the legal existence of the wife as extinct, or rather as merged in that of the husband, if her separate estate were held liable for a debt, from which, by the act of coverture, she is absolved and discharged, during its continuance. She is sued only for conformity, and on the ground of the’ legal union which is supposed to exist. A technical rule of pleading, not sustained, perhaps, by any good reason; but the husband only is liable in person onpioperty. I apprehend if the debt were not, actually levied during the coverture, and the husband should die, the execution might in that case go against the wife. But during the coverture; both in life, I held, and so charged the jury, that the property of the Wife, separate and sole, was not liable to be taken in execution. And on that ground the plaintiffs were entitled to recover. Bac. Abr. Bar. and Feme. Sid. 337 ; Cro. Car. 208; Carth. 30; Cro. Car. 603. But on another ground, the plaintiffs are entitled to recover; at least the negro was hot liable to be' sold under the execution. The conveyance is “ to James M. Lowry, in trust, for the sole and separate use of Eliza A. Sealy, (now Mrs. Fogartie,) not subject to the debts of her present or any future husband ” — ■' without regarding the further limitations over — “ and after her decease, to the children of D. Sealy, (the donor,-) and E. A. Sealy, if any,” &c.— It is clear that the legal estate is in the trustee. The property is his for the uses declared; and.therefore could not be sold for the debts of Fogartie and wife.- This view might lead to a discussion of the form of action, and whether the cestuigue trust can maintain the action in his own name, which I shall avoid here, reriiarking only, that being in possession, with the permission of the trustee, the cestuigue trust may maintain the action against a wrong doer. As to the circumstances under which the deed was executed, there was no proof on either side. The bona Jides of the deed was not made á serious question even in argument, and there was no ground to submit it specially to the jury. A verdict was rendered for the plaintiff. The defendant appeals, on the grounds above stated.”P
   Curia, goer

Evans, J.

This was an action of trover, to recover the

Value of tWo negroes. The negroes were once the property of one Sealy,the former husband of Mrs. Fogartie. Sealy conveyed them, during ^overture, to James M. Lowry, in trust for Mrs. Fogartie, then Mrs. Sealy. Sealy was indebted to Hubbell, who sued the plaiutiffs, after their intermarriage, and recovered against them, as executors de sbn tort. Upon this recovery, he issued his execution de bonis testatoris, vel si non, de bonis pr opr vis. The Sheriff seized on these negroes and sold them. The defendant became the purchaser, and the plaintiffs sued him to recover their value. The negroes remained in Sealy’s possession during his life, and since in the possession of the plaintiffs, On the trial there was a verdict for the plaintiffs, and defendant has made a motion in this court, for a new trial, on various grounds. But as the opinion of the court turns on the third only, no opinion is intended to be expressed on the others.' This ground involves the question, whether the plaintiffs can recover against the defendant, who is a purchaser at Sheriff’s sale, of their title to these very negroes. To determine this question, it seems to me td be only necessary to inquire, what is the effect of a Sheriff’s sale? It is to transfer all the title of the defendants in the action to the purchaser: The Sheriff is the agent appointed by law for this purpose. It is said the legal estate is in Mr. Lowry. That may be true, ahd Lowry, perhaps, may have a right of action against the defendant. The only title which the plaintiffs had, was their possession. A title by possession is sufficient to maintain trover; but such a title is also the subject of ■ levy and sale by the Sheriff. The only grounds on which it is pretended this action could be maintained by these plaintiffs, is, that the iiegroes were in their pos. session before the levy and sale ; but this possessory title, if such it may be called, had been divested by the Sheriff’s sale, arid transferred to the defendant. There remained, therefore, no legal title in the plaintiffs, which would enable them to bring this action ; and a’ new trial, is therefore ordered.

Richardson, Johnson and Butler', JJ. concurred.

O’Neall, J.

I conceive that upon the third ground, a new trial should be granted. Whatever legal interest the plaintiffs, or either of them, had, passed to the defendant, under the Sheriff’s sale, and they are not now at liberty, in an action by themselves, to say that they had no title. But if they were, in shewing that they had not title, this action must be defeated. I, however, go further than my brother Evans, and hold that on the second ground,' the plaintiffs were precluded from recovering. The recovery against Fogartie and wife, for the loss of the latter, while sole, in intermeddling with the goods of the deceased Sealy, made it her debt; and under the execution, her property might be sold." The negroes sold were conveyed to Lowry, in trust, for her sole and separate trsey during her life, and after her decease to the children of D. Sealy, and of E. A. Sealy, if any, and if none, to the said E. A. Sealy, and her heirs, not subject to the debts of her present or any future husband. Under this trust, the negroes were in possession of Mrs. F. during her marriage with Sealy, and also during the time she was feme sole. While she was covert, (the wife of Sealy,) the trust continued, and the legal estate was in the trustee : when she became discovert, the trust was executed, and the estate absolute in her; for, as I understand, there' was no issue of her marriage with Sealy.. The property, While she was sole, was subject to her debts, and after her marriage the same' liability continued ; for I hold that marriage does not discharge the wife’s liability to her debts. It only makes the husband also liable during coverture; so that if at law the negroes were rightly considered her separate estate, they might be sold under the execution. According to Gist vs. Porcher, decided February, 1832, at this place, the estate of the wife, under the trust deed, in the negroes, was liable to sale while she was a feme sole. If this be so, it follows that they may be sold for her debt or tort, while sole, under judgment and execution, for the sum recovered against her and her second husband, Fogartie. The provision in the deed, that the negroes shall not be liable to the debts of her future husband, is a subsisting trust in favor of her, which the court of equity would set up and make this her estate separate from his, and thus enforce the provision in the deed. But a court of law cannot notice it. So, as soon as the trust was ended and executed, at the death of the first husband, the legal and equitable estate both united in the wife; and for the purposes of a case at law, the estate' in the negroes would be regarded as that of the husband, and in that point of view, also, the sale was regular, and defeats the present action.

Petigrujf Lesesne for the motion; B. F. Hunt, contra.

Chancellor DeSaussure concurred with Mr. Justice O’Neall.

Chancellor Johnston.

I concur in the result, which I take this occasion to say,Fi& all 1 intend when I concur generally.  