Rice v. Hoffman ex rel. Hoffman

Robinson, J., delivered the opinion of the Court. Philip Horn died in 1834, seized and possessed of a large real and personal estate. Caroline A. Hoffman, who intermarried with Ephraim Hoffman in 1845, is a daughter of the said Philip, and entitled to an undivided one-ninth part of said property. Under a bill filed for partition in 1869, part of the real and leasehold estate of the said Philip was sold, and the question is, whether the distributive share of Caroline A. Hoffman, arising from the sale thereof, is liable to execution for the debts of her husband, contracted in 1869.

I. No question can arise, we think, in regard to the proceeds of sale from the leasehold estate. By the law of this State, as it stood at the time of the marriage, the husband was entitled to the chattels real of the wife, with power to sell, assign or transfer the same at any time during the coverture; and in whatever light this interest or right of the husband thus acquired under the marriage contract may be viewed, we are of opinion that it was not taken away, nor in any manner affected by the subsequent legislation in regard to the rights of married women. If so, it must follow that the proceeds arising from the sale of the chattels real belong to the husband, and are therefore liable to execution for his debts. II. — In regard to the real estate.

By the marriage, the husband was entitled at common law to the rents and profits of the wife’s real estate during their joint lives, or as stated in some of the cases, during the cover ³⁵⁰ ture. Upon the birth of a child alive, he became tenant by the curtesy initiate, and upon the death of the wife, to a life estate in the lands and. tenements of which she was seized during the marriage. This interest of the husband was liable to be taken in execution and sold at any time for his debts, until the act of 1841, chapter 161, which provided, “That no real estate hereafter acquired by marriage, should be liable to execution during the life of the wife, for debts due from the husband.” The effect of this Act, according to the decision in Logan vs. McGill, 8 Md., 469 , was not to destroy the tenancy 'by curtesy, but to suspend the right of execution on the part of the husband’s creditors, during the life of the wife. It is contended however, that the provisions of the Act of 1841 are omitted in Article 45, of the Code, and that Ephraim Hoffman being a tenant by curtesy initiate, his interest in the real estate of his wife may be taken and sold under execution.

Article 45, of the Code, however, must be construed in the light of the previous legislation on the subject. By the Act of 1841, the real estate of the wife was protected from sale for the husband’s debts during her life. Then came, the Act of 1842, chapter 293, providing that a married woman might become seized or possessed of any property real or slaves, in her own name, and as of her own property; and then the Act of 1853, chapter 245, passed in pursuance of the Constitution of 1851, which exempted all the property, both real and personal, of the wife from liability on account of the debts of the husband. Such then