McKinnon v. McDonald

• Decision Date: 30 June 1858
• Citation: 57 N.C. 1,72 Am.Dec. 574,4 Jones 1
• Court: North Carolina Supreme Court
• Parties: MURDOCK McKINNON v. ELIZA McDONALD and others.

4 Jones Eq. 1

57 N.C. 1

72 Am.Dec. 574

MURDOCK McKINNON

v.ELIZA McDONALD and others.

Supreme Court of North Carolina.

June Term, 1858.

The English doctrine, that a wife, by an arrangement with her husband, can become a free-trader, and hold the proceeds of her labor to the exclusion of his creditors, does not obtain in this State.

Where land was purchased by a feme with her earnings and the deed made to her, a sale of such land, under an execution against the husband, passes nothing.

If a party defendant, who has no interest in the subject matter in controversy, disclaim all right, the bill will be dismissed as to him, with costs; but if he set up claim, and insist upon a declaration of his rights, the dismissal, as to him, will be made without costs.

THIS bill was filed in the Court of Equity of Cumberland County, and removed by consent to this Court.

The plaintiff alleges that the defendant, Alexander McDonald, was indebted to him in the sum of $134, in two several notes, on which he recovered judgments before justices of the peace, and took out executions thereon--that the same were levied on the tract of land which is the subject of this controversy, and that it was sold to the defendant McLeran, for the sum of one dollar, and that no part of his debt has been satisfied. He further alleges, that the land in question, was bought by the defendant, Eliza, wife of the said McDonald, and the deed taken in her name; that this was done on the ground and claim, that the said Eliza had been permitted by her husband to work for herself, and to have the proceeds of her own personal labor.

The plaintiff contends that the wife's labor belongs to the husband, and that by the policy of the laws of this State, no such protection is afforded to the earnings of the wife as to secure it to her, and that this land having been purchased with money, which in law, was the husband's, the same is subject to the payment of his debts; that the purchase by McLeran amounts to nothing, for that there was no legal or equitable estate in the husband which could be sold by execution, or if there was any such, he avers that the said McLeran purchased upon an exprees trust to hold for the defendant, Eliza, the wife. The prayer of the bill is to subject the land in question to plaintiff's debt.

The answer of the defendant Eliza, the wife, states that, her husband the defendant, Alexander, greatly neglected his family, and was much addicted to intemperance; that on this account, she was obliged to live apart from him; that she obtained the privilege from her said husband of working for the support of herself and family, with an understanding and agreement that whatever she could make, beyond such support, should be her own exclusive property, free from his debts, and beyond his control; that being a good seamstress, she was able, by dint of diligence and economy, to lay up, from time to time, small sums wherewith she purchased the land in question, and by the same kind of exertions paid for the building of a house thereon; that this was long before the indebtedness of her husband to the plaintiff arose; that it was very well known in the vicinity that she was permitted by her husband to trad and work for herself; that she was credited and charged in the books of merchants in the town of Fayetteville, on her own account, and not on that of her husband, who, for a great number of years, was not at all looked to for any debt of her contracting, nor for any of the expenses of the family; that this purchase was made by her since the act of 1848, and that the object was to vest an absolute title in herself for her sole use and benefit.

The defendant, McLeran, says that he purchased the land without any concert or understanding with the defendant, Eliza; that he knew nothing of the previous judgments, or of the proposed sale; that happening to be present when the sheriff cried the sale, he bid one dollar, at which the land in question was knocked off to him, and he took the sheriff's deed for it. He further says, that after the sale, he made a public declaration, that if any friend of Mrs. McDonald would pay him back the sum paid by him, he would release the title to her. He insists, as the case now stands, upon the validity of his purchase.

The answer of McDonald, the husband, confirms the allegations in the answer of the wife.

The cause was heard upon bill and answers, and tramsmitted to this Court.

C. G. Wright, for the plaintiff , argued as follows:

1st. That the earnings of the wife, during the coverture, were the earnings of the husband, for which the husband could sue alone, or as matter of favor, join his wife. And that lands, so purchased, were, in Equity, the lands of the husband, unless under peculiar circumstances which do not arise in this case. But, where the legal title is in the wife, the husband has no such interest as is liable under the statute of 1812, because there is no estate as contemplated by that enactment. It is only a “ jus merum,” a mere right to a subpœna for the declaration of a trust, as distinguished from a trust actually in esse, or the estate within the meaning of the act. Nelson v. Hughes, Jones' Eq. vol. 2nd page, 37--top.; also, Rev. Code, for the statute of 1812.

2nd. It cannot be claimed for the wife that she is a “sole trader” by any general law or particular custom. The policy of our law, with an eye to domestic harmony, has been against it; hence the supposed merger of the existence of the wife into that of her husband. A man cannot grant to his wife during the coverture, albeit he may devise lands, for that takes effect after the death of the devisor. He may covenant with another to stand seized, or make a feofment to her use; Litt. sec. 168, 1 vol. But he cannot covenant with her to stand seized, because they are one. She may be his agent, and if she buys with his money, she becomes his trustee, and the lands his. The husband may repudiate the contract out and out, but because he may assent to such agency, it does not change the relation of the parties, nor vest in her an interest which flows from the consideration paid by the husband. In our case, the lands were purchased without consulting McDonald, without his knowledge, and at a time when he was confessedly insolvent. It is true, he assented afterwards, but not until he had obtained credit upon the faith of lands purchashed with his money.

The case of Kee v. Vasser, Ire. Eq., vol. 2d, p. 553, presents the question between the executor and the wife of the testator: as between them, the law is plain enough, but how it would be, if the complainant had been a creditor, (which is our case) the Court, in that event, did not decide. The land was evidently bought without his knowledge at the time, and he had the right to insist upon a conveyance to himself; he was insolvent then, and ever afterwards, and he cannot now assent to an arrangement which,...