O'Connor v. Harris

• Decision Date: 30 June 1879
• Citation: 81 N.C. 279
• Court: North Carolina Supreme Court
• Parties: J. O'CONNOR and others v. W. H. HARRIS, wife and others.

81 N.C. 279

J. O'CONNOR and others

v.W. H. HARRIS, wife and others.

Supreme Court of North Carolina.

June Term, 1879.

OPINION TEXT STARTS HERE

CIVIL ACTION tried at Fall Term, 1878, of NORTHAMPTON Superior Court, before Seymour, J.

Upon the finding of the jury and the facts admitted in the case, the court gave judgment for the plaintiff and the defendants appealed.

Messrs. R. B. Peebles, W. H. Day and Mullen & Moore, for plaintiff :

The assignment of the chose in action was valid and binding on Harris and his wife, unless he was deprived of the power to sell it by virtue of the provisions of the constitution of 1868. See Burwell v. Roberts, 4 Dev., 81; Knight v. Leak, 2 Dev. & Bat., 133; Barnes v. Pearson, 6 Ire. Eq., 482; Weeks v. Weeks, 5 Ire. Eq., 111; Rogers v. Bumpass, 4 Ire Eq., 285; Howell v. Howell, 3 Ire. Eq., 522; Dozier v. Muse, 2 Hawks, 482; Bryan v. Spruill, 4 Jones Eq., 27; Arrington v. Yarborough, 1 Jones Eq., 72; Reeve's Dom. Rel., 55; Schuyler v. Hoyle, 5 Johns. Ch. Rep., 196; 2 Akins, 206; 2 Kent. Com., 135. The suit of 1867 or the assignment was a sufficient reduction into possession by the husband. 31 Penn., 233; Holmes v. Holmes, 28 Vt., 765; Barber v. Slade, 30 Vt., 191. The right to sell had vested in the husband prior to 1868 and could not be divested by the constitution of that year. Sutton v. Askew, 66 N. C., 172; Kirkman v. Bank, 77 N. C., 394; Holliday v. McMillan, 79 N. C., 315; 4 Barb. Rep., 295.

Messrs. Reade, Busbee & Busbee, for defendants :

After remarking upon the ruling in Sutton v. Askew and Holliday v. McMillan, at length, and referring to cases cited by the opposing counsel, cited Bobbitt v. Jenkins, 77 N. C., 385; Mardree v. Mardrce, 9 Ire., 295; Airey v. Holmes, 5 Jones, 142; Hardie v. Cotten, 1 Ire. Eq., 61; Poindexter v. Blackburn, Ibid., 286. Although the marriage took place before 1868, and the chose in action existed before that time, yet the husband neither reduced it into possession nor assigned it before 1868, and had no property in it at the adoption of the constitution which made it the wife's separate property. While property of wife at common law, in possession, became husband's by mere fact of marriage, that was not true of her expectancies, choses in action, &c., which did not become his until reduced into actual possession, or in some cases, assigned; the constitution of 1868 destroyed his inchoate right and his assignment passed nothing.

DILLARD, J.

The defendant Harris intermarried with Susan his wife, who had been the ward of defendant Carstarphen, in 1865, and brought suit in the name of himself and wife, to spring term, 1867, against the guardian to surcharge and falsify an account of his guardianship previously settled; and pending the suit, to wit, in 1873, the said Harris conveyed the chose in action, which formed the subject matter thereof, to the plaintiff J. O'Connor in trust for the purposes in the deed of assignment mentioned. After having so done, Harris compromised the suit, and the allegation is that a decree by consent was entered for a small sum against the guardian, with a private understanding that he was to make over and secure to the feme plaintiff the sum of about $1,800.

The plaintiff alleges that after the assignment to him he notified Carstarphen of it, and he and Harris then combined to end the pending suit by a consent decree and private understanding as aforesaid; according to which a considerable sum of money was paid to Harris' wife, after notice of the assignment of the claim, upon the fraudulent intent to defeat the plaintiff in its collection.

The defendants Harris and wife answered, and on an issue submitted to the jury, it was found as a fact that Carstarphen had paid the feme plaintiff one thousand dollars as her guardian after notice of the transfer to the plaintiff. Upon the verdict of the jury and the other admitted facts in the pleadings, His Honor overruled the claim of separate estate of Susan Harris in the chose in action, and adjudged that plaintiff recover the same ($732.47 and interest) secured by the assignment against Harris and wife and Carstarphen, it being less in amount than the $1,000 paid as aforesaid, after notice to the guardian of the plaintiff's claim, and from this judgment an appeal is taken to this court.

The appeal presents this question: Did the assignment by Harris to J. O'Connor in 1873 have the effect to pass to the assignee a right to have the funds in the hands of the guardian of the wife, the marriage having taken place and the sum being due before the adoption of the constitution of 1868, or was the wife entitled to the same as a separate estate against the claim of her husband and his assignee?

At common law marriage was an absolute gift to the husband of all the personal property of the wife in possession, and the same became his property instantly on the marriage; and it was a qualified gift of all the personal property adversely held, and all the choses in action of the wife which became the husband's absolutely upon his reduction of the same into possession, during the coverture, with the right in case the wife die, to administer on her estate, and in that character to collect and after payment of her debts to hold the surplus to his own use without obligation to distribute to any one.

It was also competent to the husband having choses in action “ jure mariti” to assign the same for value, or as a security to pay his debts, and the assignment availed to pass the right to the assignee to collect and have the proceeds as his absolute property, if collected during the coverture, just as the husband might have done if he had kept and reduced it into possession himself. Bell, Husband and Wife, 55 and 56; Arrington v. Yarbrough, 1 Jones Eq., 72.

Such has ever been the effect of marriage in this state as...