Cochrane v. Cochrane

Briscoe, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Dorchester County, overruling a demurrer to a bill in equity, with leave to the defendant to file an answer to the bill of complaint within ten days from the elate thereof. ⁵³¹ The bill is filed by a married woman against her husband, for an accounting and a discovery of certain moneys, securities and properties in bis bands and possession, belonging to her, and to pay over to her all sums of money wrongfully received by him for her and to deliver to her such securities and other property, now in his hands. The MU in substance alleges that the plaintiff is the wife of the defendant, having been married to him in the City of Cumberland, Maryland, and that they resided there for a number of years; that she has been for a short timo living apart from her husband, making her home in Baltimore City, and he residing in Dorchester County, Maryland. It is further alleged that, in the year 1906, the defendant, without the consent of the plaintiff, wrongfully acquired and took possession of property and securities of the plaintiff, consisting of certain promissory notes, and also certain mortgages on real estate situate in Allegany County, Maryland; these notes and mortgages, amounting in the aggregate to the sum of $10,390, and to the best of the knowledge and belief of the plaintiff executed by and given by certain persons, set out in tbe bill.

Tbe bill also alleges that the defendant, since tlie wrongful acquisition of bis possession of her property in 1906, down to the present time, has controlled and managed the same, without rendering to your plaintiff a proper account of the principal and income derived from it, and without making to her any proper payment of the principal received by liim or tbe interest collected ther'eon. Tbe bill further charges that the defendant lias paid to the plaintiff various sums of money, at different times, during the years from 1906 to tbe present time, that the defendant rendered to the plaintiff a statement purporting to give tbe sums of money received and the moneys expended by him, between tbe dates July 18th, 1906, and April 30th, 1918, but tbe statement was manifestly inaccurate and incorrect; that be also paid to her, on the 30th of June, 1920, ⁵³² the sum. of $2,727.51, hut that this payment was not a settle^ ment in full, hut there is still a large sum of money rightfully clue to her, the payment of which she has demanded, hut which has been refused hy him, and he has also refused to restore and deliver to her the securities now in his possession and belonging to her. The prayer of the hill is, first, that the defendant may on oath answer the hill, and discover and set forth in detail all sums received hy him, and all disbursements made hy him, together with the moneys or securities of the plaintiff now in his possession, accounting from the first day of July, 1906, to tlie date of this hill, and account with the plaintiff for the same; second, that the defendant may he decreed to pay over unto the plaintiff all sums of money due to her on account of the property wrongfully taken charge of hy him; and third, a prayer for general relief. The defendant filed a demurrer to the hill, and assigned two grounds as cause of demurrer: first, that the plaintiff is the lawful wife of the defendant, as alleged in the bill, and cannot sue her husband; and second, that no express promise is alleged in the hill to repay or to refund the moneys alleged to have been taken possession of hy the defendant.

It has long been settled, in this State, that the relation of debtor and creditor may exist between husband and wife, and as, under the Code, the wife is vested with the legal title to her separate estate, she can maintain an action for the recovery, security or protection of her property. Barton v. Barton, 32 Md. 214 ; Odend’hal v. Devlin, 48 Md. 439 . In Wilson v. Wilson, 86 Md. 638 , decided on January 5th, 1898, it was said that the weight of authority seems to be that either the husband