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Brantly's annotated Bland's Reports, Chancery Court 1809-1832
Volume 198, Page 433   View pdf image (33K)
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JONES v. JONES.—1 BLAND. 433

should be, no further deranged or impaired than may be indis-
pensably necessary; therefore, it has been expressly declared, that
the proceeds of the sale of the real estate shall, in such cases,
pass as realty to the heirs of such infant or person non compos
mentis, as if no such sale had been made. 1800, ch. 67, s. 5; 1816,
ch. 154, s. 9; 1828, ch. 26, s. 3; 1829, ch. 222.

An obvious consequence of this mutation of a wife's real estate
znto personalty, is, that it casts over the property thus changed,
by what seems to be considered as the tacit consent or acqui-
escence * of the wife, (but certainly without her privy exami- .
nation or express assent,) all the law which regulates per- 459
sonal property belonging to the wife. As land, her husband could
have only a limited and qualified right to and enjoyment of it;
she could not be deprived of it without her solemn, free, and ex-
press consent, which if not given, it would after her death pass to
her heirs; but as personalty, on being reduced into possession by
the husband, it becomes absolutely his property, and may be
wasted or disposed of by him without any control from her. Chap-
lin v. Chaplin, 3 P. Will. 245, But subject to these principles in
regard to the mutation of the property itself, the Court of Appeals
has distinctly recognized the existence of that right of a feme
covert in regard to her property which her husband may ask a
Court of equity to put into his hands, called "the wife's equity;"
and which can only be secured to her by a Court of equity. The
State v. Krebs, 6 H. &. J. 37. In relation to which, it has been
laid down, that where a husband comes into equity to obtain any
of his wife's chosen in action, the Court will not receive her consent
to bar her equity, until after the amount due to her has been as-
certained; for, though she may not think $500 the proper subject
of a settlement, she may think differently of $5,000. Jernegan v.
Baxter, 6 Mad. 32.

But although, in general, chosen in action are not subject to be
taken in execution, either at law, or in equity; yet this interest,
which has been held to be in the nature of an equitable chose in
action, will be so i'ar considered as parcel of the realty as to be
subject to be intercepted by an order of this Court for the benefit
of the creditors of the deceased debtor where his personalty has
been exhausted, or where the heir to whom it has been awarded is
the debtor and is beyond the jurisdiction of the State. Baltzell v.
Poss, 1 H. & G. 504;' McCarthy v. Goold, 1 Ball & B. 389.

The rules thus laid down upon this subject must however, as it
would seem, be received with some qualification. The six heirs of
an intestate instituted proceedings at law to have the real estate,
which they claimed by descent, divided among them; on the com-
missioners having made return of its value, and that it would not
admit of a division with loss; one of them elected to take the
whole, at a valuation. After which, the elector having failed to
28 1 B.

 

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Brantly's annotated Bland's Reports, Chancery Court 1809-1832
Volume 198, Page 433   View pdf image (33K)
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