
    
      Thos. and J. Lowndes, Trustees of Mrs. Brown, vs. James Ladson, Executor of Judith Ladson, et al.
    
    Testator being indebted to a married woman, his executrix gives her own bond to the husband for the amount of the debt: — Heidi that this was such a reduction into possession by the husband of the wife’s chose, as barred her equity, j
    An order drawn on a particular fund, whether for the whole or only for a part of it, will, as between drawer and holder, be enforced in equity as a specific appropriation of the fund to the amount of the order, whether the drawee accepts or not.
    To a bill to enforce such a lien the statute of limitations cannot be pleaded.
    
      Before DeSaussure, Ch., at Charleston, December, 1831.
    DeSaussure, Ch. Prior to the marriage of Major James Ladson to Miss Judith Smith, in the year 1778, a marriage settlement was executed, in which it was recited that Miss Smith was entitled to £100,000 currency, which, on the marriage, would come into the possession of her husband. In consideration of which, Major Ladson covenanted with the trustees of the settlement, to charge his whole estate with the payment of the said sum on the trusts of the settlement, and among them it was stipulated that, if Mrs. Ladson should survive her husband, and leave issue of the marriage also surviving him, one-half of the amount settled, should become the property of the said issue. Mrs. Ladson did survive her husband, and so did eleven children, issue of the marriage. After, the death of her husband, Mrs. Ladson, being in possession of the whole settled estate, executed a bond, payable after death, which has since accrued to John Simons Bee, who married one of the surviving children of the marriage, for his wife’s share of the settled estate. Mr. John Simons Bee assigned this bond to Mr. Cripps, as security for the loan of certain shares in the Santee Canal Company. Mr. Cripps died, and Mr. Daniel Ravenel administered on his estate, and recovered a judgment against the executor of Mrs. Ladson, on the assigned bond, the amount of which, however, is more than sufficient to repay the estate of Mr. Cripps. 'There is a balance due, which the executor of Mrs. Ladson refuses to pay to Mr. Ravenel, and claims as the property of Mrs. J. S. Bee and her children, under a decree of the Court of Equity, made in 1826, settling the estate of Mrs. Ladson and ordering the share of Mrs. Bee to be settled on herself and children. In 1830 
       Mr. J. S. Bee, being indebted to the trustees of Mrs. H. L. Brown for house rent, gave an order on William and James Ladson to pay $1400, which, by the terms of the order, was to be discounted from the aforesaid bond. The order was not accepted. The bill claims the order as an equitable assignment of the bond. The answers of Mr. Bee, and of Mr. James Ladson, the executor of Mrs. Ladson’s estate, deny that this is an assignment, and plead to the demand the statute of limitations.
    Without deciding upon the right of Mrs. Ladson to pay to Mr. Bee his wife’s share of the settled estate, which, for aught that appears to the Court, may have been real estate, since the estate of Major Ladson, a part of which was real estate, was charged with the repayment of the sum settled on his marriage with Miss Smith; and, considering the bond of Mrs. Ladson to Mr. Bee as a debt from her to him, the question may be easily disposed of, by examining the true character of the order of Mr. Bee on Mr. William and Mr. James Ladson.
    It is not pretended that it is a legal assignment. It is a mere order, not under seal, to pay a simple contract debt. To the debt and the order the statute of limitations is pleaded; and there is no evidence to avoid the plea, which is supported by the length of time that has elapsed since the debt was contracted and the order given. I am, therefore, of opinion, that it is unnecessary to examine beyond this point, as the statute is a bar to the claim, though there would be great, if not insurmountable, difficulty, even if the statute were not a bar, in subjecting this property to the demand of the complainants.
    It is, therefore, ordered and decreed, that the bill be dismissed with costs.
    The complainants appealed on the following grounds:
    1. That the order drawn by John S. Bee in favor of the complainants, was a valid equitable assignment of the bond of Mrs. Ladson to the amount of said order.
    2. That the complainants, as assignees claiming on the said bond, could not be barred by the statute of limitations.
    3. That the decree of the Chancellor in the court below was, it is respectfully submitted, in other respects, contrary to law and equity.
    
      Peronneaa & Finley, for appellants.
    
      
      
         This date is certainly wrong. It is probablo that the order was given in 1820.
      R.
    
   The opinion of the Court was delivered by

JOHNSON, J.

The bond given by Judith Ladson to the defendant, John S. Bee, was confessedly in consideration of his wife’s portion of £50,000, secured to the children of James and Judith Ladson, by their marriage settlement, with the payment of which, the whole estate of James Ladson was charged by his last will and testament, in which Judith Ladson was appointed executrix; and the questions which arise, are:

1st. Whether the taking of this bond was such a reduction of the wife’s interest into possession, by the husband, as to bar the wife’s equity 1

2d. If it is, whether the order drawn by defendant, John S. Bee, on William J. and James H. Ladson, the executors of Judith Ladson, for a part of the amount of the bond, was a good equitable assignment, pro tanto ?

3d. If it was, whether the demand is barred by the statute of limitations?

1. The right of the defendant, John S. Bee, to receive and give a discharge for the debt due to his • wife, is not called in question ; ,and the general rule seems to be, that any act done by the husband, which operates to change or divest the wife of the property or choses in action, is á reduction into' possession, and makes them the husband’s, and bars the wife. Upon this principle it was held in Oglander vs. Baston, 1 Vern. 396, that an award, made in pursuance of a submission made by the husband of the wife’s interest in an estate, vested the right in him and went to his executors, (the wife- surviving,) because the award was said to be a sort of judgment and changed the property; and it would seem, from the reasoning of Sir Wm. Grant, in Wall vs. Tomlinson, 16 Ves. 413, that transfering stock, which belonged to the wife, into the sole name of the husband, was such a reduction into possession as changed the property. But this case is too clear to admit of any doubt. The bond given to the defendant, John S. Bee, was an extinguishment of the debt due to his wife. He alone was entitled to sue upon it, and if he had died, the wife surviving, it must have gone to his executors. The wife’s equity is, therefore, very clearly barred.

2. An order drawn, on either a particular or general fund, does not, technically speaking, operate as an assignment, but, as between the drawer and the holder, equity will give effect to it, on the same principles precisely, that the specific performance of other agreements is enforced; and those cases belong to that branch of the equity jurisdiction. It is apparent, therefore, that it is wholly immaterial whether the drawee accepts or not. If the fund is in his hands, the agreement cannot be specifically enforced, but by compelling him to disburse it in payment of the order. The cases cited at the bar in support of this position were very numerous, and all on the same side, but I will only refer to Smith vs. Everett, 4 Bro. Ch. Rep. 64, as bearing a striking analogy to this in other respects. In that case the order was drawn on a fund which the drawee had not, but expected to receive on account of the drawer, from the treasury, and was for a part only of the fund ; and the question growing out of the bankruptcy of the drawer, was, whether this was an appropriation of, and lien on, the fund, and the Lord Commissioner Eyre said there cannot be the smallest doubt about the matter. There could not be a stronger appropriation of the fund, and, in anote to that case, it is said, that the court declared that the assignees of the holder, (for he, too, was a bankrupt,) had a specific lien on the money received, or to be received, from the Lords of the treasury.

The general principle is conceded, but it is contended here, that this being only a partial assignment of a particular fund, equity will not enforce-it, and the opinion of Mr. Justice Story, in Mandeville vs. Welch, 5 Wheaton, 286, is relied on. But in Tiernan vs. Jackson, 5 Peters, 598, Judge Story evidently concedes that the position cannot be maintained, to the extent which it imports, and if we recur to the principle upon which the court proceeds, it is evident that it is immaterial, either as a matter of convenience or right, whether the order is for a part or the whole of the fund. It is not strictly a suit against the drawee, but against the drawer, to compel the specific execution of a contract, which cannot be done without making the drawee a party, and, if he has been blameless, he will be protected from the consequences of his creditor’s splitting up his demand.

I was, on the first view, somewhat embarrassed by the previous assignment made by John S. Bee, of the whole amount of the bond, to John Cripps ; but on looking into the assignment, I find that, although, in point of form, it is a general assignment of the whole bond, it was intended to secure a debt due-to Cripps of an amount much less than the bond, and that he was to pay the balance to Bee, so that, in effect, that also was an equitable assignment of a part only.

3. Having thus disposed of the preceding questions, no doubt can remain that the statute of limitations does not operate as a bar. The order, operating as an assignment, transferred Bee’s interest, to that extent, to the complainants, and if the defendants are bound to pay, the complainants, and not Bee, are not entitled to receive it.

It is, therefore, ordered and decreed, that the decree of the Circuit Court be and the same is hereby set aside and reversed.

The defendants, the executors of Judith Ladson, claim to set off against this demand certain sums of money due and owing to her by the said John S. Bee, before the assignment made’ to the complainants, and they are very clearly entitled to have the same set off and discounted; and it is referred to the Commissioner to ascertain to what those sums amount; and it is further ordered and decreed, that the said defendants, the executors of Mrs. Ladson, do pay to the complainants the balance due on her bond to the said John S. Bee, after deducting therefrom the amount so to be set off and discounted, and the sum due to Daniel -Ravenel, as the administrator of John Cripps, on account of the assignment of the said bond to the said John Cripps, if, upon stating the account, there shall, be found to be so much due to the said complainants. The costs, except the costs of defendant, John S. Bee, must be paid out of the fund. He must pay his own costs, and the court would have decreed the whole costs against him but for his insolvency.

O’Neall, J., concurred.

Decree reversed.  