Drury v. Briscoe

Stewart, J., delivered the opinion of the Court. Exceptions were filed in the Circuit Court for Anne Arundel County, in the distribution of the proceeds of sale of the property of John H. Drury, amongst his creditors, to the allowance of claims of Mary R. Drury, his wife, consisting of two judgments, standing for her use, designated in the auditor's report as Nos. 3 and 6. The exceptions were sustained, and the claims in part rejected, by the order of the Court of the 7th May, 1873, from which the appeal has been taken. The claim of Mrs. Drury, originally consisted of two parts, which were consolidated in the obligation given to ¹⁶¹ her by Mr. Drury, in October, 1855, which was afterwards substituted by the two judgments against him, now standing to her use.

The origin of her equitable claim against her husband was long anterior to the claims of the present creditors of Drury, and there is no question as to the perfect sincerity and bonafides of the transaction between the husband and wife. The present contention is over that part of her claim, resulting from a note given to Mrs. Drury, by her brother, Mr. Jones, for $850, on account of his purchase of her undivided interest, in the proceeds of the real estate of her father, which had been sold under decree, for partition in 1851, and which were in Court undistributed. The circumstances as detailed by the proof are sufficient to show, that Mrs. Drury, being thus entitled to a portion of the proceeds of the sale, then in Court for distribution, without a formal order of the Court, as to the distribution of her part, Mr. Drury the husband agreed that her interest in the fund, should be assigned to her brother, and his note for $850 taken therefor, should be given to Mrs. Drury, as her separate property. This is the equitable foundation of Mrs. Drury’s claim, which both husband and wife have always treated as belonging to the wife.

Upon the basis of which Drury, the husband, made the promise to his wife, and upon the faith of which she gave up the note to him. Mrs. Drury had held the custody of the note, as her own separate property, when her husband agreed that if she would permit him to collect it, he would repay it to her whenever demanded. In pursuance of this understanding, and performance of the agreement on his part, he gave the obligation, in good faith, for its payment, thus ratifying and confirming his original agreement. ¹⁶² The husband acknowledging the separate interests of the wife, in prejudice of the rights of no other parties, would certainly violate a moral obligation if he failed to perform his agreement. Unless in conflict with some controlling principle of justice and right, a Court of Equity must sustain the agreement.

The husband did not reduce the chose in action of his wife to his possession by virtue of his marital rights, but in pursuance of his agreement with his wife, obtained the control of the