Opinion
(December Term, 1841.)
1. The statute of distributions does not apply to the estates of femes covert dying intestate. The husband is entitled to administer for his own benefit, and if any other person shall administer, such administrator is considered in equity, with respect to the residue after paying the debts, as a trustee for the surviving husband or his representatives.
2. In equity choses in action are assignable for a valuable consideration and bona fide, such assignment being in the nature of an agreement by which the assignor is bound to give to the assignee the benefit of that which he has assigned.
3. But in equity as well as at law, a grant of land (except a release) is void as an act of maintenance if, at the time, the land is in the actual possession of another person claiming under a title adverse to that of the grantor.
THIS was a bill filed at the Fall Term, 1839, of CASWELL Court of Equity, to which the defendant Eskridge answered at Spring Term, 1840, and at the same term judgment pro confesso was entered against the other defendant, Lipscombe. At Fall Term, 1841, depositions having been taken, the cause was set for hearing and transmitted by consent to the Supreme Court.
A statement of the pleadings and material facts will be found in the opinion delivered in this Court.
Morehead for plaintiff.
W. A. Graham for defendant.
The bill states that Richard Eskridge, by his will, bequeathed several slaves to his wife for life, remainder to his daughter Martha; that Martha married Thomas (55) Lipscombe, and died, in the lifetime of her mother, the tenant for life; that subsequently the tenant for life died; that William Eskridge administered on the estate of Martha Lipscombe and sold the slaves; that Lipscombe, the husband, assigned by deed to the plaintiff all his equitable interest in the estate of his late wife in the hands of her administrator for the sum of $1,000. The bill is filed by the assignee against the assignor and the administrator of his late wife, Martha, for an account. The bill is taken pro confesso as to the defendant Lipscombe. The administrator answers and insists (1) that the estate in his hands belongs to the brothers and sisters of the intestate as her next of kin; (2) that the assignment was not bona fide and for a valuable consideration, but was affected with champerty; (3) that a portion of the money for which the slaves were sold is covered by a decree for alimony obtained by the present wife of Lipscombe against her husband, and to which himself, as administrator, and Hoppiss, the present plaintiff, were parties.
First. The principle is well settled that the statute of distributions does not apply to the estates of femes covert that shall die intestate, but that the husbands may administer and recover and enjoy the same, as they might have done before the making of the statute. If any other person administers, such administrator will be considered in equity, with respect to the residue, after paying the debts, as a trustee for the husband or his representatives. For, the husband surviving the wife, her whole estate vests in him at the time of her death, and no person can possibly be entitled to the rights of the wife but himself, so that her whole personal property belongs to him. 3 Atk., 527; Williams on Executors, 910.
Second. A person out of possession cannot at law convey anything to a stranger; he can only give a release to one in possession. Underwood v. Lord Courstown, 2 Scho. and Lefr., 65. But in equity choses in action are assignable for a valuable consideration and bona fide ( Townsend v. Windham, 2 Ves., 6; Whitfield v. Faucett, 1 Ves., 332, 391), and especially equitable choses in action, as in this case; and such assignment is supported in equity on the ground that it is an agreement (56) by which the assignor is bound to give to the assignee the benefit of that which he has assigned. It is by agreement, in most cases of choses in action, that the assignee takes. The covenant of the assignor is, in this Court, a disposition of the thing assigned that could be enforced against him. Upon principle, therefore, the right of the assignee of a chose in action is derived from his right to call upon the assignor for a specific performance of the agreement between them. He is entitled to whatever interest the assignor himself possesses or is capable of procuring. 6 Ves., 394; 2 Roper on Husband and Wife, 510. While we make these remarks it may be proper to state that the rule does not extend to lands; for every grant of land, except as a release, is void as an act of maintenance, if at the time the lands are in the actual possession of another person claiming under a title adverse to that of the grantor. Such assignments were offenses in England, both by the common law and under the statutes. 4 Kent Com. (3d Ed.), 446-450. And all agreements tainted with maintenance or champerty are void in equity as well as at law. Wallis v. Duke of Portland, 3 Ves., 494; Powell v. Knowler, 2 Atk., 224; Stephens v. Bagwell, 15 Ves., 139; Wood v. Downs, 18 Ves., 120; Harrington v. Long, 2 Mylne Keen, 590. Champerty consists in the unlawful maintenance of a suit in consideration of a bargain for part of the thing or some profit out of it. But in this case the deed of assignment to the plaintiff appears on its face to be absolute and for the consideration of $1,000; the proof is that the plaintiff gave that sum, and there is no evidence of champerty offered by the defendants. The assignor is made a defendant, and he suffers the bill to be taken pro confesso, which, we think, is in this case an admission that the assignment was made as stated in the bill, or at least precludes the other defendant from raising the objection. The defendant acknowledges a balance in his hands belonging to the estate of his intestate of $1,480.10. Under all the evidence in the case, we are of the opinion that the plaintiff is entitled to a decree for that sum and also to a decree for an account, if he wishes it.
(57) As to the sum claimed to be deducted to satisfy the decree for alimony to the present wife of the defendant Lipscombe, there is no evidence of it filed with the papers in the case. If an account is to be taken it will be time enough to offer it before the master.
Decree for the plaintiff.
PER CURIAM.
(58)