Norris v. Lantz

Cochran, J., delivered the opinion of this court. The material facts presented by this record, in our opinion, neither support the propositions for which the appellant contended in the argument of the case, nor entitle him to the relief sought upon his petition and other proceedings thereon. By the terms of the sale made and reported by the trustee, the credit payments for the property sold matured, respectively, on the 16th of August 1852, and on the 16th of August 1853. The account by which the distributive share of Elizabeth A. Hyde in the proceeds of the sale was ascertained and made payable, was ratified on the 16th of April 1852.

The cash and first credit payments were made in accordance with the terms of sale by the appellant, as purchaser, to the trustee, and by him properly apportioned and paid over to the several persons entitled upon the account, leaving a balance of the distributive share of Elizabeth A. Hyde, of about $445.32 unpaid. The assignment, under which the appellant claims, was executed on the 2nd of July 1853. Immediately thereafter;, - and before the maturity of the appellant’s last credit payment, out of which the balance of the distributive share of Elizabeth A. Hyde was to become payable, Joshua L. Hyde, -her husband, abandoned her, and absconded: Upon these'facts the appellant contended that- the account ²⁶⁷ and order of ratification, ascertaining the distributive share of Elizabeth A. Hyde, constituted a legal chose in action, which vested absolutely in her husband, and that by the assignment, operating as a conversion by the husband, the unpaid balance was transferred to the appellant free from any right on her part to an equitable application of it to her support. If the account and order constituted a legal chose in action, that vested absolutely in the husband, which—for reasons we shall presently notice—we do not admit, its assignment by him did not extinguish the liability charged by it upon the trustee, and it now stands, in the hands of the appellant, precisely as the husband held it before the assignment was executed.

In no sense can it be said to have lost its distinctive character as a part of the distributive share of Elizabeth A. Hyde, nor can it be claimed in any other character or right by the appellant. If, then, the chose still exists unextinguished and unchanged—for the fact that it is payable out of indebtedness due from the appellant to the trustee, can not be, considered as enlarging the rights of the appellant—the assignment did not operate as a reduction to possession, nor even as a conversion in extinguishment of such rights of the wife, as a court of equity will recognize and enforce upon an application for aid to make such an instrument effective, but as a conversion of his interest in the chose, and a transfer of the absolute power at law, or conditional one in equity, to reduce it to possession. The authorities cited by the appellant in support of the proposition in question, relate to rights by survivorship, and are definitive only of principles by which such rights are determined. The right of a wife in equity to a present provision or settlement out of her choses in action, in restriction of the husband’s power to reduce to possession, is supported by considerations, and governed by principles, entirely distinct from those which pertain to, and control her rights by survivorship, and as the authorities referred to have no direct bearing upon the point, we deem a more extend ed notice of them unnecessary.

In regard to the other and principal part of the proposition, ²⁶⁸ that the account and order constituted a legal chose in action, we consider some expression of opinion at le.ast proper, if not necessary, to the disposition of this .case. The order ratifying the account and directing payment accordingly, must be construed consistently with the terms of saJLe limiting the times for payment to the trustee, of the mopey to be distributed by virtue of it. Under the circumstances we think, so far as the money in controversy is concerned, that the order imposed on the trustee an inchoate obligation, which could become complete only by the expiration of the time limited for the payment of the balance of the purchase money due from the appellant. Before that .time the trustee could have been in no default, nor could he, in that respe,ct, have been charged with any breach of the