
    
      Ex parte Yarborough et als.
    
    Husband and Wife. Sale of wife's land. The husband and wife being tenants in common, if the wife consent to a sale of part of her interest in lands so held by them, and joins her husband in a conveyance, made according to the forms of law, without an understanding that the proceeds of the sale are to be held or vested for her use, or, that she is to be remunerated out of the estate of her husband, all her interest in the es tate is gone and the husband holds the consideration, for which it was sold, in his own absolute right discharged frcwi any claim of hers, which might under other circumstances be paramount to his, or that of his representatives, either real or personal.
    This was a bill filed by Helen M. Yarborough and others, heirs and devisees of David Yarborough, in the chancery court at Pulaski, for the purpose of having an adjudication of the question growing out of the facts set forth in the opinion. At the September term, 1850, Chancellor Cahal presiding, a decree was pronounced, in which it was held that “ the tract of land mentioned in the bill, having in the lifetime of the said David Yarborough become the property of himself and wife, Helen M., as tenants in common, the latter being the owner of f thereof, and the former i thereof, and the said David in his lifetime, having, for the payment of his debts and other purposes, sold off and conveyed by himself and wife jointly, more than |, or his share in the land; the said Helen M., his widow and co-tenant in common, must now receive the entire residue of said tract, unless the same be more than sufficient to restore her to her original share of in said land.” From this decree the devisees prosecuted a writ of error.
    Wright, for Helen M. Yarborough.
    My opinion is, that Helen M. Yarborough’s claim to compensation against her husband’s estate for five-eighths of the land sold out of grant 52, cannot be sustained. She owned five-eighths and he three-eighths in common. When she joined in deeds of conveyance in due form, with him, without any contract or stipulation to be reimbursed, the proceeds of the sale became his, and she has no claim on his estate. 5 Hum. R. 34. The case in 5 Hum. seems to go to this extent. But is this law? the case is not well examined. Does not 9 Hum. Rep. 487, and other authorities militate against this and in fact overthrow it; 9 Hum. 487. But even if the case in 5 Hum. is to stand against the case in 9 Hum., and I admit there is no necessary conflict, yet that case is not like the case of Helen M. Yarborough. Here she advanced her five-eighths of the land to pay her husband’s debts, and cannot that be shown by parol proof? It is alleged in the bill. The rule in 5 Hum. may very well stand, where the feme covert’s purpose is to vest the land or proceeds in the husband, free of her interest, as in the cases of conveyances by husband and wife to a third person and by him to the husband. But, suppose the husband needs money to aid in the payment of his debts and calls on Ms wife to sell her lands and advance the proceeds to aid him — does he not become her debtor ? And in the partition of these lands may not the wife’s claim or equity be asserted ? 3 Paige 614.
    I say there is another ground upon which this claim of Helen M. Yarborough should be allowed. It is this: She and her husband were tenants in common — -joint owners of this land — she five-eighths and he three-eighths. It was so of the whole grant, No. 52. A partition now becomes necessary between her and him, or what is the same thing, between her, and his heirs and devisees — he has already received his share, or at least more than she has; now in the partition and division of the residue, will not the court stay his hand, or that of his heirs and devisees, until she gets her equal share with him or his heirs? 2 Hum. 191.
    Jones, for the devisees of David Yarborough.
   McKinney, J.,

delivered the opinion of the court.

The complainant, Helen M. Yarborough, previous to her marriage with David Yarborough, (now deceased,) was the owner in fee of five-eighths of a tract of land in Giles county, estimated to contain five thousand acres ; and her husband David Yarborough, by purchase, became the owner of the other three-eighth parts of said tract.

During the marriage, and while the said tract of land remained undivided and held in common, said David Yarborough became embarrassed in his pecuniary circumstances, and to relieve himself, sold various parcels of said tract of land to different persons, in severalty, and the complainant, his wife, voluntarily joined with him in the conveyances;

The conveyances thus made by them jointly, the complainant, Helen, now alleges, embraced more than her husband’s proportion of said tract; and that the proceeds, which amounted to a large sum of money, were received and applied by her husband exclusively to his own use, and to the payment of his debts ; no part thereof having been applied to her use or benefit, or received by her. She says in the bill, “ that to aid her husband, she from time to time joined him in said sales— regards the same as valid, and desires them all to stand; but claims compensation for her share, or five-eighths of the land so sold;” that is to say, she claims, not only her share of the part of the tract undisposed of, but also, to have decreed to her, out of the residue thereof, her Jive-eighths of the purchase money received by her husband for the lands sold as aforesaid.

David Yarborough died in 1841. By his will, he disposed of his interest in said land, and the devisees have joined with saidHe len M., as parties complainant, in submitting the question to the court, whether upon the foregoing state of facts, said Helen M. is entitled to the relief claimed by her. The de-visees, in the bill, set up no defense; no proof has been taken; and the question is to be decided upon the facts as stated by the complainants in the bill.

In this aspect of the case, is the complainant, Helen M., entitled to a decree for her proportion of the proceeds of the lands sold and conveyed by herself and husband ?

We think not. We perceive no distinction in principle, between this case and the case of Chester vs. Green, 5 Hum. 26. In that case, Mi’s. Chester had joined her husband in the sale and conveyance of her real.estate: and it was insisted on her behalf, that she was entitled to charge her deceased husband’s estate with the value thereof, as against his creditors. But the court say, “If the wife consents to the sale of her real estate and joins her husband in a conveyance of it made according to the forms of law, without an understanding or agreement, that the proceeds are to be held or vested for her use, or that she is to be remunerated out of the estate of her husband, all her interest in the estate is gone, and the husband holds the consideration for which it was sold in his own absolute right, discharged from any claim of her’s paramount to his.”

The principle here announced is not affected by the fact, that in the case just cited, the estate was the freehold of the loife, and in the case under consideration, the husband and wife held as tenants in common. The case made in the bill is, in reality, a sale and conveyance of part of the wife's interest, in which she voluntarily joined and cannot, therefore, be said to differ essentially, in its facts, from Chester vs. Green, nor is it material to the principle, whether the question arise between the wife and the creditors of the husband, as in that case ; or between her and the husband’s representatives, personal or real, as in the present case.

There can be no question in the case before us, as to the wife’s right, had there been any agreement or understanding between her and her husband, that compensation should be made, or that he should be regarded as her debtor for the proceeds of her proportion of the land sold and conveyed b}' them. The sole difficulty is, that no such contract or agreement ever existed — none such is pretended to have been made. The question is as to the intention of the parties at the time of the transactions. If a gift were intended, it cannot now be converted into a debt, and that it was so intended and understood at the time, is the irresistible conclusion from the complainant’s own statement in the bill. The absence of any intimation that it was expected or intended to create the relation of creditor and. debtor, or to receive compensation in any mode, places this matter, we think, beyond all reasonable doubt.

It is, perhaps, going quite as far as either principle or authority will warrant, to entitle the wife to enforce in equity an express contract or agreement entered into with her husband.

To allow her to constitute herself the creditor of her husband, or his of estate, after his death, by mere implication of law, unsupported by evidence of any such agreement or intention, would be, in our opinion, to establish a most impolitic and unwarranted precedent.

The staleness of this demand, too, cannot escape notice. True, no statute of limitation is set up as a defence in this case, as perhaps might well enough have been done, regarding the wife as occupying the relation she has assumed — that of a creditor of her deceased husband’s estate; nevertheless, upon this hypothesis, the delay to assert such a demand, if founded upon actual contract, or just expectation, should have been in some way excused.

We fully assent to the doctrine now so well settled, in regard to the capacity of the wife, in equity, to deal with her husband, in respect to her separate property. We admit, likewise, the very ample jurisdiction of a court of equity in cases of partition, between tenants in common, to make all proper compensatory adjustments to settle all the various equitable rights and claims of the co-tenants, and to do equal and complete justice between them. But we are not prepared to admit that the case of the husband and wife, who are tenants in common, stands in all respects upon precisely the same ground with that of persons standing in a different relation to each other. Presumptions and implications of law might well enough be held to arise in the latter case, that might be repelled in the former, from the mere relation of the parties.

The decree of the Chanceller will be revised and modified.  