Harper v. Clayton

Fowler, J., delivered the opinion of the Court. The plaintiffs below are judgment creditors of the defendant, who is the widow of the late John S. Clayton, and as such widow she is entitled to dower in the real estate of her late husband. But it appears that her dower has never been actually assigned or set off to her, and it would, therefore, follow that she has not, at common law, any interest or estate in the lands of her husband until such assignment has been made. Previous to the assignment of dower her interest is a mere chose in action, nothing but a right by appropriate proceedings to compel the assignment to be made.” Freeman on Executions, sec. 185.

So long, therefore, as the common law prevails the unassigned dower right cannot be taken in execution at law. It is contended, ³⁴⁸ however, and this contention appears to be the main ground upon which the plaintiffs ask the aid of a Court of Equity, that the law affording them no relief equity must necessarily do so. And although an interesting question of equity, jurisdiction is here presented which has been examined by some of the most learned jurists both of England and this country, it would be impossible in the limits of this opinion to do more than refer to and discuss some of the leading cases. ■ In the early cases in England the jurisdiction here contended for, to subject choses in action to the claim of creditors by a creditor’s bill, was sustained, but generally upon the ground of fraud, trust, or for some other reason which it was conceded would entitle the creditor to invoke its aid. Thus Taylor v. Jones, 2 Atk. 600, lays down the doctrine that where a debtor has in fraud of his creditors assigned to trustees certain choses in action in trust for himself for life, and then over to his wife and children, a Court of Equity will favorably hear the application of such creditors, and decree such trust estate to be sold for the payment of their debts.

And this was held to be so, notwithstanding such choses in action were not subject to levy and sale upon execution at law. Rex v. Marisal, 3 Atk. 192; Edgell v. Haywood, 3 Atk. 352; Horn v. Horn, Ambl. 79; P artridge v. Gopp, Ambl. 578; Smither v. Lewis, 1 Vern. 398. But 'even in cases like that of Taylor v. Jones, supra, and the others just cited, which would perhaps be now generally -conceded to be within the limits of equity jurisdiction because of the allegation and proof of fraud, it was subsequently held in England that creditors could get no relief in equity because they had no legal right which equity could enforce; Dundas v. Dutens, 1 Ves. Jr. 196; Grogan v. Grogan, 2 Ball & Beatty, 210.

In the case last cited Lord Manners quoted Lord Thurlow as having said: “ The opinion in Horn v. Horn is so anomalous and unfounded that forty such opinions would not satisfy me. It would be preposterous and absurd to set aside an agree ³⁴⁹ ment, which if set aside leaves the stock in the name of the person where you could not touch it.” And in Bayard v. Hoffman, 4 Johnson Ch. 450, Chancellor Kent, after a most careful and elaborate examination of the English authorities, came to the conclusion that while Lord Hardwicke had maintained the jurisdiction of equity thus to proceed against choscs in action, it was afterwards denied and overthrown by both Lord Thurlow and Lord Eldon, although his own opinion, as expressed in Bayard v. Hoffman, supra, was that “the better reason is with the earlier authorities.” But, notwithstanding this expression of opinion in the case just cited, the more recent cases upon this point in New York and some other States have vigorously announced and maintained the doctrine that aside from statute, and in the absence of fraud or some element of trust, chancery has no jurisdiction to subject choses in action to the payment of creditors, because there happens to be no remedy at law, and it would seem that the Chancellor himself had adopted this view, as will appear by reference to his commentaries, vol. 4, page 61, where he refers to the New York statute as authority for the statement that in that State a chose in action may be reached by process in chancery for the benefit of creditors. \'\ ■ > The cases relied upon by the plaintiffs do not, we think, sustain their position. The first of those in point of time is the case of Hamilton v. Mohun, 1 P. Wms. 122. Butin that case there was no question of jurisdiction as there is here, and it was very properly held on a bill filed for an account by an heir at law against the widow, as guardian, “ that a Court of Equity in taking the account should allow to the widow one-third of the profits for her right of dower—and this, too, whether dower had or had not been actually assigned.” The question of jurisdiction was not involved in Hamilton v. Mohun, and it is therefore not an authority here.

The plaintiffs also cited and relied upon three New York cases, Tompkins v. Fonda, 4 Paige, 44 ; Stewart v. McMartin, 5 Barber, 438, and Paine v. Becker, ³⁵⁰ 87 N. Y. 153 . But it is sufficient to say in regard to all of those cases that they appear to be based upon the provisions of the New York statute which was in force when they were respectively decided. That statute in effect and in words provided that Courts of Chancery should have power to decree satisfaction of a judgment at law out of “ any money, property or thing in action belonging to the defendant whenever an execution against his property shall have been returned unsatisfied in whole or in part.” The same observations may be made in regard to McMahon v. Gray, 150 Mass. 289 , and Boltz v. Stoltz, 41 Ohio, 540. In each of the States just named there were statutes expressly giving Chancery Courts jurisdiction to decree the sale of choses in action upon the application of judgment creditors.

The case of Davison v. Whittlesey, 1 MacArthur, 153 (D. C.), was much relied on by the plaintiffs. It was decided on the authority of Tompkins v. Fonda, supra, which having been based on the New York statute should have had no weight where, as in the District of Columbia, no such statute was in force. Nor are we satisfied to adopt the reasoning of the Court in Davison v. Whittlesey . After stating that at lazv the right to have dower assigned could not be reached, it is said: “ But in equity it is otherwise.

The widow has no right in conscience to deprive her creditors of the benefit of her right of dower for the satisfaction of their claims by continuing in joint possession with the heirs and neglecting to ask for a formal assignment, which assignment if made, would enable the creditors to reach her dower by execution.” It must be remembered that in the case at bar, there is not only no fraud alleged by the plaintiff, but they have disclaimed any intention of charging bad faith or collusion between the defendant and the heirs at law who are in possession of the land in which she is entitled to have ,dower assigned to her. In the position she has assumed in this case, she is only standing upon her legal rights. It is conceded that at common law, aside from such statutes as ³⁵¹ have been enacted in some of the States, though not in Maryland, the defendant’s right of dower is not liable for her debts. And while it may be said, perhaps, in one sense, that “ in conscience she ought not to deprive her creditors of the benefit of her right of dower” for the payment of their just claims, yet the same may be said of any one who relies on the Statute of Limitations or exemption laws to defeat such a claim.

If debtors could be required by a Court of Equity to abandon their legal rights and to subject themselves to the dictates of conscience or to some law regarded as higher than the law of the land, they would doubtless seldom plead the Statute of Limitations or rely upon the provisions of homestead or exemption laws; but whenever these statutes are properly and reasonably pleaded they are as binding in a Court of Equity, which is sometimes called a Court of Conscience, as they are in a Court of law. And recognizing this right to stand upon one’s legal rights, it has been held that the neglect or refusal to have dower assigned does not amount to fraud. Maxon v. Gray, 14 R. I. 641; Buford v. Buford, 1 Bibb. 305. This is only another application of the well-settled principle of equity that “ where a rule either of statute or common law is direct and governs the case in all its circumstances or the particular point, a Court of Equity is as much bound by it as a Court of law, and can as little depart from it.” 1 Story Eq.

Jurisfi., sec. 64. Applying here, then, the conceded common law rule that the