Croft v. Bolton

• Decision Date: 31 January 1861
• Citation: 31 Mo. 355
• Parties: CROFT, Defendant in Error, v. BOLTON, Plaintiff in Error.
• Court: Missouri Supreme Court

31 Mo. 355

CROFT, Defendant in Error,

v.BOLTON, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1861.

1. C. was the daughter of L., and on the death of L., a partition of his real estate was applied for by his heirs, and upon report of commissioners it was ordered to be sold, ten per cent. to be paid in cash and the purchaser to have a credit on the balance of six and twelve months, giving note and security. C. and her husband were parties to the partition proceeding, and in the judgment it was declared that they were entitled to one-sixth the real estate. Afterwards, and before the notes taken became due, the sheriff accepted orders from the husband of C. for the amount due his wife, and before the notes were due and before the sheriff paid any money on the orders, the husband died, and the wife, C., notified the sheriff not to pay over. Held, that as to the ten per cent. collected and in the hands of the sheriff, the assignment of the husband would be valid and extinguishes the wife's right of survivorship; but that the notes could not be converted into money or be reduced to possession, either by the husband or his assignees, before they became due, and as the husband died before they were due, the wife would take by survivorship.

Error to Cole Circuit Court.

Parsons, for plaintiff in error.

I. The conversion of the land into money and promissory notes, payable to the sheriff for the benefit of the husband, or the husband and wife, were choses in action which he might sell or assign for a valuable consideration. (Webb's Appeal, 21 Penn. 249.) It seems generally admitted in the United States that a transfer for value, or release of a chose in which the wife has a present interest, will bar her survivorship. (Hill on Trustees, 2d Amer. Ed. 598, note 1, and authorities there cited.) The sale and assignments by Daniel H. Croft of the interests of himself and wife in said notes, were for a valuable consideration, to-wit, in the payment for a negro and other debts by him contracted. (9 N. H. 321; 3 How., Miss., 394; 5 Iredell's Eq. Rep. 111.)

Lay & Gardenhire, for defendant in error.

I. When land is sold for the purpose of partition, the share of the proceeds belonging to a femme covert will be treated as land, and can not be paid to her husband, except by her assent, upon a private examination. There was therefore no error in the judgment of the court below upon the motion. (1 Dev. Ch. 118; 2 Hill Ch. 644; 2 Paige Ch. 316; 1 Clark, 538; 1 Edwards' Ch. R. 572.)

II. The wife was entitled to her distributive share by survivorship, even if not treated as land after its conversion into money.

III. The recital in the order of sale, declaring the interests of the parties, was no part of the order, and the sheriff had no right to observe it to the injury of the wife. The court ascertained and declared the interests of the parties in the judgment of partition. (2 R. C. 1855, p. 1112, § 14.) The sheriff was bound by the judgment, and not by the idle and unauthorized recital of the clerk. The order of sale required by law was simply that the sheriff should sell the premises to the highest bidder. (R. C. 1855, § 28.) A suit by husband and wife is the husband's only, the wife being joined for conformity, and bound only so far as in justice she ought to be bound. It is the duty of the court, ex officio, to protect her from any injurious effects arising from the misconduct of the case; (4 Wend. 397-403;) and this will be done, although there has been an assignment for a valuable consideration to a stranger, the assignee standing in no better condition than her husband. (4 Gill & J. 282; 2 U. S. Dig. Eq. 13, § 27; 2 P. Wms. 451; 2 Verm. 197; Anonymous, 8 Ves. 164.)

NAPTON, Judge, delivered the opinion of the court.

The question in this case is whether an assignment for value by the husband of his wife's chose in action, will, under the circumstances, cut off the wife's right by survivorship.

Mrs. Croft was the daughter of Charles Lowe, and upon the death of said Lowe, a partition of his real estate was applied for by his heirs, and upon a report of its impracticability by the commissioners, it was ordered to be sold upon the following terms: Ten per cent. of the purchase money was to be paid down, and the purchasers to have a credit of six and twelve months for the balance, giving bond and security. The order proceeded in these words: “The sheriff is directed, when the purchase money for the real estate is paid into his hands, to pay it over to the parties aforesaid, according to their respective interests, to wit: that Samuel O. Rice and Jane his wife, Abram B. Lowe, David B. Lowe, and Daniel Croft, are each entitled to one-sixth part of said real estate,” &c. Daniel H. Croft and his wife Susan C. were both parties to the proceedings, and in the judgment for partition, it was declared that Susan C. Croft and her husband were entitled to one-sixth part of said real estate.

The land was sold for $4,325.25, ten per cent. of which was paid, and for the remainder notes were taken payable in six and twelve months. Afterwards, and before the notes taken as above stated became due, the sheriff accepted orders from said Daniel Croft for the amount due his wife, as her share of the proceeds of the sale, and before the said notes were due and before the sheriff paid any money on said orders, Croft, the husband, died, and the wife notified him not to pay over.

At the term when the motion of Mrs. Croft came up for hearing, the court had the following addition made to the record of the order of sale: “It appearing that the name of the said Susan Croft was omitted in the order of sale by mistake, the court, at her instance, directed the clerk to insert her name in said order of sale.” The application of Mrs. Croft prevailed, and the court ordered the sheriff to pay over to her so much as he had collected from the proceeds of the partition sale as her interest amounted to.

The change in the terms of the order made at a subsequent term we do not consider a material one, and it is not therefore important to enquire into the power of the court to make it. Undoubtedly, the responsibility of the sheriff could not be affected by any substantial change in the terms of the order, made after he...