Moore v. Darby
| Decision Date | 13 November 1889 |
| Citation | 18 A. 768,6 Del.Ch. 193 |
| Court | Court of Chancery of Delaware |
| Parties | MIRIAM E. MOORE v. SAMUEL W. DARBY et al. THOMAS H. MOORE, Intervenor |
SUIT FOR PARTITION OF CERTAIN REAL ESTATE.--On intervening petition by the husband of one of the co-owners to have her share of the proceeds of sale invested for his benefit. The facts are stated in the opinion.
Nathaniel B. Smithers, Sr., for the intervenor.
Richard R. Kenney and Edward Ridgely, contra:
The question in this case involves the construction of the several statutes in this State enacted for the benefit of married women, and these statutes are to be found in Delaware Laws, vol. 12, page 663, passed in 1865; Del. Laws, vol. 14 pages 95 and 638, passed March 1871 and 1873, respectively; Delaware Laws, vol. 15, page 289, passed 1875, and page 601 passed in 1877; Del. Laws, vol. 16, page 188, passed in 1879; Del. Laws, vol. 17, page 911, passed in 1883.
These statutes (Married Woman's Acts) are remedial statutes and should be so construed as to advance the remedy and effect the object intended to be accomplished by the Legislature. Billings v. Baker, 28 Barb. 343; Johnes v Johnes, 3 Dow. 15.
By these statutes it is enacted that the real and personal property of a married woman "shall be her sole and separate property, and the rents, issues, and profits thereof shall not be subject to the disposal of her husband nor liable for his debts."
The effect of these statutes has been to abolish entirely the right of a tenant by the curtesy initiate. The husband has and can have no right, property, or interest whatever in his wife's real estate during coverture, and has no seisin thereof, as during coverture he cannot come at the possession or the rent and profit. He has under the statutes a possibility or chance of being tenant by the curtesy in the wife's lands in the event that he survives his wife and has by her issue born alive during coverture, capable of inheriting the estate and the wife being seised of the lands at the time of her death.
As the law now stands in our State, the right of the husband to be tenant by the curtesy in his wife's lands is dependent upon the fact not only that the issue should be born alive during coverture, but also that the wife should be seised of the lands at the time of her death.
Any alienation of the lands during the life of the wife must necessarily defeat the right of tenancy by the curtesy in the husband. Gram v. Lobdale, decided in the Court of Errors and Appeals in this State at the January Term A. D. 1881 (not yet reported); Breeding v. Davis, 77 Va. 639; Beach v. Miller, 51 Ill. 206; Hill v. Chambers, 30 Mich. 422; Sleight v. Read, 18 Barb. 159; Billings v. Baker, 28 Barb. 343; Pool v Blakie, 53 Ill. 495; Forbes v. Sweesy, 8 Neb 520; Coverdale v. Gorman, 4 Houst. (Del.) 624; Johnes v. Johnes, 3 Dow. 15; Stewart v. Ross, 50 Miss. 776; Greenwich Nat. Bank v. Hall, 11 R. I. 124; Silsby v. Bullock, 10 Allen, 94; Porch v. Fries, 18 N.J.Eq. 205; Hearle v. Greenbank, 3 Atk. 695-716.
In the case before the court Mrs. Miriam E. Moore, wife of Thomas H. Moore, was tenant in common with her two brothers Samuel W. Darby and John C. Darby, and proceedings in partition were instituted by Mrs. Moore in her own name. By the return of the freeholders it appeared that the lands held by the tenants in common could not be divided without detriment to the parties interested, and the lands were sold by order of the chancellor, and converted into money, in accordance with the provision of section 14, chapter 86, page 530, Revised Code (1873). By these proceedings all the title and interest of Mrs. Moore in the lands were sold and alienated, and she no longer had any interest in these lands, but became entitled to her share of the purchase money--it was a conversion out and out of realty into personalty and the estate and interest of Mrs. Moore in the lands was thereby divested.
Since the passage of the Married Woman's Act in this State in 1865, more than twenty-four years ago, cases like the present have often occurred and the practice, so far as practice can, has established the right of the wife absolutely to the money, independent of her husband. The husband is not now under our practice made a party to the proceedings, and the court of chancery has uniformly since 1865 ordered the money to be paid to the wife. Prior to the Married Woman's Law when lands were sold it was considered a conversion into personalty, and the money was paid to the husband, but since the Married Woman's Law, the money has been paid directly to the wife.
Dower is certainly as much favored in our courts as curtesy, and yet, since the organization of our state government, it is confidently believed that in proceedings in partition no precedent can be found where one of the tenants in common, being a married man and his wife living, one third of his interest in the lands has been invested or withheld from him so as to await the event of his death, leaving the wife surviving him.
Dower is certainly extinguished by these proceedings if both husband and wife are living at the time, and why not curtesy?
Since the Married Woman's Law, the husband can have no more interest in the wife's lands than the wife has in his lands,--in fact not so much,--because the right of dower is superior to any liens which the husband may create during coverture; whereas the right of curtesy is subject to any lien made and created by the wife during coverture.
In the present case S.W. Darby and John C. Darby are both married men with wives living, and yet no one will pretend that one third of their share of the purchase money should have been invested to await the event of their wives outliving them.
It may be pretended that dower is a mere right and curtesy an interest in lands. Such may have been the distinction before the laws for the benefit of married women were enacted. But since then, dower and curtesy are exactly alike, except that dower is preferred to liens created by the husband during coverture, while curtesy is not. Both now are but a right and neither tenant in dower nor tenant in curtesy have an interest until the death of the husband or the death of the wife.
Suppose a farm belonged to the wife which has been purchased by her during coverture, and for which she gave a purchase money mortgage in which her husband did not join, and the farm is afterwards sold on this mortgage and brings $ 5,000, above paying the mortgage --will it be pretended that the sheriff, to whom the whole purchase money is paid, is not bound to pay the balance of the money, after paying the mortgage (there being no other lien) to the wife, the husband and wife both being living at the time? If not in that case, how can the wife be prevented from having her share in the present case?
To withhold this money from Mrs. Moore would be a virtual repeal of the Acts passed for the benefit of married women in all cases where a married woman was a joint tenant or tenant in common with other parties, and where proceedings were instituted for partition. It would deprive her of the control and management of this money so long as her husband lived. By the sale under the order of the court it became absolutely personal property, to which she, under the Married Woman's Law, is absolutely entitled. Before the passage of these laws it was always considered personal property and was invariably paid to the husband absolutely. But since the enactment of these laws it became and was the absolute property of the wife, for her to dispose of as she might deem proper.
Both reason and justice require that such an interpretation should be given to these statutes as to carry out their spirit and intention, and to accomplish the end intended by the Legislature--and if so interpreted will give to Mrs. Moore absolutely her share of the proceeds of the lands held by the tenants in common, after deducting therefrom the liens to which her share may be subject.
Miriam E. Moore has filed her petition in this court, praying for partition between her and her two brothers, Samuel W. Darby and John C. Darby, of lands situate in Mispillion and South Murderkill Hundreds, formerly belonging to Samuel Warren, senior. One of these tracts of land contains about 700 acres; one other contains something over 200 acres, and a third tract contains upwards of 180 acres.
Samuel Warren, senior, died in 1848. By his will, admitted to probate November 6, 1848, he devised as follows:
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