
    REUBEN PITTS, SHERIFF, VS. THE ADMR’S. OF JOSEPH A. WICKER.
    The husband gave a bond to the Sheriff foi the purchase money on a sale for partition of land, to a distributive share of which his wife was entitled ; and after the bond became due, he paid the shares of the other distributees on the bond, leaving the wife’s share unpaid, not credited on the bond, or receipted for, and died. Held that the husband, not having reduced the wife’s interest into possession, nor assigned it in his life-time, it survived to the wife, and was recoverable in an action on the bond, in the name of the Sheriff.
    
      Newberry, March, Term, 1836, before Mr. Justice Butler.
    The presiding judge made the following report:
    “Debt in bond given for the purchase money of land, sold as the property of Jacob Epting. Jacob Epting died intestate sometime previous to the year 1822, leaving a widow and several children, and leaving land, and other property, subject to distribution among them. The widow married Wicker, the intestate of defendant’s. Proceedings were instituted in the Court of Common Pleas by the children of Epting, against Wicker and wife, for the partition of Epting’s real estate. The land, by an order of the court, was sold in December, 1822. Wicker became the purchaser of two tracts, and gave his bond, (the one sued on) to the Sheriff, for the purchase money, flOOO, payable in December, 1823, and December 1824. Another tract was sold to George Setgler. "When Wicker’s bond became due, he paid off the children’s share of it, and had the bond receipted for the amount paid. His wife was entitled to $333;1f of the bond. No receipt was entered on the bond for this sum, and this sum now appears to be due on the bond. The bond remained in this situation for several years before Wickeris death. The only question in the case is, is Wicker entitled to a credit on the bond for the above amount %
    
    “It seems from testimony introduced, that Wicker, just before his marriage, said it was not his intention to claim any of Epting’s land, by his marrying his widow. This was said to obviate some objection to the marriage made by some of Epting’s relations. In a settlement with the Sheriff, Wicker did receive a part of the purchase money arising from the sale of laud. The receipt to the Sheriff, dated 17th March, 1834, was for #26,28 cts., which must haVe been money paid by Setgler, who purchased another tract. I did not regard this evidence as changing the character of the case, in a strict legal point of view. The bond may be characterized as a chose in action of the wife, due by her husband at his death. It was, to be sure, due to the Sheriff for the wife. Wicker could have had the bond credited in his life time, for the amount due to his wife, if he had chosen. But the receipt was not entered, and the question arises, have Wicker’s representatives a right to the credit on the bond of ^333^- ? If so; the plaintiff can recover nothing. I felt some doubt on the question, but ■finally decided against the plaintiff. Perhaps equity might regard Wicker as a trustee, to hold the bond for the separate use of his wife. But at law, it must be regarded as a debt due by the husband to the wife, and extinguished by their relation. In other words, the marital rights of the husband attached as soon as the bond became due. The bond was in the custody of the Sheriff, and as the agent of all the parties, he held it for the true owner. Property in the hands of the guardian of a female will vest in the husband after her marriage, by virtue' of his marital rights. Davis vs. Rhame,l M’C. Ch. Hep. 191.’*
    T.he plaintiff appealed, and now moved the court to set aside the non-suit, on the ground of error in the decision of the circuit judge.
    
      Pope if Fair, for the motion. Herndon, contra.
   Curia, per

Butler, J.

Since I have had an opportunity to look more fully intu this case, and have had the enlightening views of my brethren, I am satisfied that ray decision on the circuit should be reversed. The' point made is settled, I think, by the principles laid down in the cases of Sturgineger vs. Hannah, and Hood, vs. Archer, reported in 2 N. & M’C. 147 and 149. In the case of Hood vs. Archer, the husband survived the wife, whose interest in laud had been sold under proceedings in partition. The purchase money had been paid to the Sheriff, subject to the demands of those entitled to receive it. The wife died before the husband had received her share into his actual possession ; held that the husband had no tight to the whole of his wife’s- share, but to one'third part under the Act of 1791. It is said in that case that the husband could not be considered as having possession of the money as long as it remained subject to the control of the court. In the case under consideration, the wife survived her husband, and the bond which Wicker gave to the Sheriff for the purchase money of the land in which his wife and others were interested, remaius unsatisfied, to the extent of the wife’s interest in it. If the land had not been sold the wife would have taken it free from any claim of her husband’s representatives. The right of inheritance of a married woman, is protected with jealous vigilance by the law. She cannot be deprived of it, but by a scrupulous adherence ‘to the statute providing the mode in which a married woman may part with her inheritance in land. The money arising from the sale of the land may go to the husband without observing all these provisions; but until he has taken it into his actual possession, or has made such an assignment of it as to vest a right in another, before his death, it will be regarded as belonging exclusively to the wife. Wicker was the obligor of the bond given to the Sheriff, and the Sheriff, like any other obligee having the legal title of the bond in him, could demaud and receive the money secured by it, and hold it subject to the control and direction of the court. It was not like a debt due to the wife before marriage, and which would have been released by the marriage, but it was a debt due to an officer of the court, who might have collected and paid the money into court, and asked an order for its distribution. It would follow then that at the death of Wicker, his bond was in the custody of the Sheriff, and under the control of the court. This excludes his possession, which was necessary to have given him a legal right to it.

The motion to set aside the non-suit is granted.

Richardson, Harper, Johnston, O’Neall, Evans, . DeSaussure, and Johnson, CC. and JJ., concurred.  