
    Moore vs. Moore.
    ERROR TO MADISON CIRCUIT.
    1. Money due for land sold by husband and wife, which descended to tho wife from her father, until received by tlio husband, may bo subjected- to 'a settlement for the benefit of the wife by tlie chancellor, (Lay’s ex’or v. Brown, ¿;c., 18 B. Mon. 295;) especially since the act of 1846.
    2. Tho right of tho wife to claim a settlement out of estate descended to her is not confined to cases where the chancellor is called upou to subject such estate to the payment of the debts of tlie husband, but may be asserted by the wife by an original bill. (2 Story’s Eq., Bao. 1414, paye 866; Clancy on Rights, 471.
    8. The right of the wife to a settlement of estate descended to her cannot be defeated by the assignment of the husband. (Thomas v. Kennedy, 4 B. Mori., 235; Crooks v. Turpin, 10 B. Monroe, 244-5. If in such caso the husband does assign, even for a valuable consideration, it is subject to the equity of the wife. (2 Story’s Eq., Sec. 1412, and eases there cited.
    4. An assignee of the husband, of the choscs in action of tlie wife, for the payment of debts, is bound to make a settlement for the wife.
    5. Tlie proceeds of the bale of the wife’s land, so long us it remains in the hands of tho purchaser, constitutes a part of her estate out of which she has a right to a settlement.
    Pet. Eq.
    Case 11.
    December 16.
    Case stated.
   Judge Simmon

delivered the opinion of tho court.

William Fitzpatrick died in the year 1849, possessed of a considerable real and personal estate. One of his daughters had intermarried with Walker Moore." After the death of her.father she, in conjunction with her-husband, sold her interest in the tract of land on which her father resided at the time of his death, to her brother, Gyrus Fitzpatrick, for six hundred and eight dollars.' Three hundred dollars of the purchase money was appropriated to the purchase of her sister’s interest in a tract of land in the state of Indiana, which had descendedlo them from their father; for the residue of the purchase money — being three hundred and eight dollars — a note was. executed by the purchaser to her husband., payable sometime thereafter, and at the same time a .deed for the land was made to the purchaser by the husband and wife. This note was, on the day it was executed, placed by the husband in the hands of William P. Moore, without any assignment thereon, for the purpose of in - demnifying him against a liability he had incurred as the surety of the husband.

1. Money due for land sold by husband and wife, -which descended to the wife from her father, until received by the husband, may be subjected to a settlement for the benefit of the wife by the chancellor, iLay’s ex’or. v. Brown, ¿¡o., 13 B. Monroe, 295,) especially since the aet of 1846,

2. The right of the wife to claim a settlement out of estate descended to her is not confined to eases where the chancellor is called upon to subject such estate to the payment of the debts of the husband, but may bo asserted by the wife by an original bill. (2 Story’s Eg., sec. 1414, page 866; Chancy on Rights, 471.)

Walker Moore shortly thereafter died, leaving his wife, with several small children, in a very destitute condition. After the death of her husband she filed a petition, claiming a right in equity to have the balance of the purchase money due from her brother, Cyrus Fitzpatrick, settled upon her — the note for three hundred and eight dollars not having been paid. She stated in her petition that the note was made payable to her husband, without her knowledge or consent, and that she had never consented that William P. Moore should have the benefit of it. She was not present when the note was executed, nor did it appear that she knew to whom it was made payable.

The land sold had been acquired by the wife sinco the passage of the act of 1846, tó protect the rights of married women, and under the operation of that law the husband had no interest in it, which was liable for his debts. The land having been sold the purchase money, if received by the husband, would constitute a part of his estate; but until so received by him it remains subject to the wife’s equity to a settlement. This doctrine was fully recognized in the case of Lay’s executor v. Brown &c., 13 B. Mon. 295, and is more peculiarly applicable to a case like tbe present, where the lands sold were acquired by the wife since tbe passage of the act of 1846,

Bui it is contended, that the wife’s equity to a settlement is merely an incidental right, which arises in her favor when the husband, his creditor or assignee applies to the chancellor for aid to reach her estate, but cannot be enforced by her in an original action brought for that purpose. Such seems to have been the doctrine, when the equitable right of the wife was not as well defined, or as clearly established, as it is at present. It was then supposed that the jurisdiction of a court of equity rested-solely upon the ground that the parties who asked for equity should, be required to do equity, and that the wife was entitled to relief upon, this ground alone. But the doctrine is now firmly established that whenever the wife is entitled to this equity for a settlement, she may assert it in an original suit, as plaintiff. (2 vol. Story's Equity, sec. 1414, page 866; Clancy on Rights, 471.) It is now regarded as a substantial right which the wife may assert, in an independent suit, and not one that is contingent and merely incidental.

3. The right of the wife to a settlement of estate descended to her cannot be defeated by the assignment of the husband. (Thomas v. Ken nedy, 4 B. Monroe, 235; Crooks v. Turpin, 10 jB. Monroe, 244-5.) If in such caso .the husband does assign, oven for a valuable consideration, it is subject to the equity of the wife. (2 Story’s Eg., sec. 1412, and cases there cited.)

4. An assignee of the husband, of the ohoses in action of the wife, for the payment of debts, is bound to make n settlement for the wife.

But it is also contended, that the right of the) wife may be defeated by an assignment by the husband for a valuable consideration. If this were so the right would be of but little value, and could always be defeated by the husband. The correct doctrine upon this subject, and the one that was established in the eases of Thomas v. Kennedy, 4 B. Monroe, 235, and Crooks v. Turpin, 10 B. Monroe, 244-5, is, that in that part of the wife’s estate to which she is entitled in equity to a settlement, the assignee of the husband, even for a valuable consideration, takes it subject to this equity of the wife. (See 2 vol. Story’s Equity, sec. 1412; and cases there cited.) The cases referred to as supporting a different doctrine were cases in which an effort was made to subject the wife’s legal chcses in action to this equity of the wife, and the courts held, that her equity did not extend to, or embrace that part of her estate, and consequently they could not prevent either the husband or his assignee from using the legal remedies to which they were entitled to reduce it into possession. But whenever any part of the estate of the wife is held to be subject to her equity to a settlement, such right cannot be defeated or divested by an assignment made by the husband, but the assignee is bound to make such a settlement. 2 Story’s Equity, sec. 1412, and the cases referred to.

It was formerly doubted whether a special .assignee from the husband, for a valuable consideration of the dioses in action, or equitable interests of the wife, was bound to make a settlement out of the estate assigned to him; but it bas been long settled that his assignee, for the payment of his debts, was bound. It is very questionable whether the holder of the note in this case, occupies a better attitude than assignees for the payment of debts due to the creditors of the husband generally. But whether he does or not, is not deemed materia], inasmuch as the established doctrine now is that all assignees of the husband are placed upon the same footing, and all take the choses in action, and equitabie interests of the wife, subject to her right to a settlement.

5. Tho proceeds of tho salo of the wife’s land, so long' as it remains in tho hands of the purchaser, constitutes a part of her estate out of which she has a right to a settlement.

The proceeds of the sale of the wife’s land, made by her and her husband, so long as they remain in the hands of the purchaser, constitute a part of her estate, out of which she has a right, in equity, to a settlement-. The money is, according to every principle of right and justice, as much her property as tho land was before its conversion. Is there any good reason for limiting the exercise of equitable jurisdiction, 1 in affording protection to the wife against tho improvidence or injustice of the husband, to such interests as are purely equitable, and for leaving the ; money arising from the sale of her land to the mercy of her husband? The only plausible reason in favor of it, that can be urged, is that the legal effect of the sale is to entitle the husband to the .purchase money. This reason, however, is merely technical and unsubstantial. The legal effect of the marriage is to entitle the husband to all equitable interests of the wife, but as he cannot reduce them into possession, without resorting to a court of equity, they were held to be subject to tbe equitable right of the wife to a settlement. So long as courts of equity interposed in favor .of the wife only, where the husband, or his assignee applied to them for aid, there was some reason for their refusing to interfere to preveut him from obtaining possession of her estate, where no such assistance was necessary or required. But now, when the wife’s interests are protected, and her equity dispensed to her, upon her own application, whether the husband or assignee asks for assistance or not, surely there can be no plausible pretext for not subjecting to the same rule any part of her estate, which has not been reduced to possession by the husband, although he may have the' right to do it, without resorting to a court of equity for assistance, provided the estate be of that nature and description to which her right in equity to a settlement attaches.

Turner for plaintiff; Burnam for defendant.

During the pendency of this action the defendant, William P. Moore, procured from the plaintiff an instrument of writing, in which- she relinquished all her right to the' fund in contest, and, directed the suit to be dismissed. This writing was set up and relied upon by the defendant in an amended answer. We think, that the circumstances attending its procurement, and the manner in which it was effected, are such, as to destroy the validity of the writing, and to preclude him from relying upon it to defeat the plaintiff’s right in equity to the unpaid balance of the purchase money. But as he paid, as part of the consideration for its execution, the sum of fifty dollars, the plaintiff should be required, inasmuch as she repudiates the contract to refund to him that sum, and it should be paid to him out of the fund in contest.

Wherefore, the judgment of the court below, denying to the plaintiff any reliefJ is reversed, and cause remanded that a judgment may be rendered ás herein indicated.  