Bell et al. vs. Bell.

as the property of W. J. Bell, and taken possession of by the sheriff. To avoid the expense of keeping the negroes until they could be brought to sale, after tedious litigation it was agreed, in writing, between Mrs. Bell and the creditors of her husband, that they should be sold at once, and that the money should remain in the hands of the sheriff, subject to the same rights which she might have on the property if not sold. Mrs. Bell, then, by her next friend, filed her bill, charging all these facts, and also that her husband was wholly insolvent, and that herself and children were without the means of support-asking an injunction against the creditors, and praying that so much of the money in the hands of the sheriff, and of the remainder of her interest in her father's estate, as might be necessary, be set apart, in the hands of trustees, for the special use of the complainant and her children.

The defendants demurred to the bill upon several grounds, all of which were overruled by the presiding judge. The questions made occurring on demurrer, all the statements in the bill are admitted to be true.

The principles stated in the previous part of this opinion, are considered as sustaining the court below on all the points made in the assignment, except as to the questions growing out of the partition of the property, and need not be again, or with further minuteness of application, repeated. The exceptions founded upon the action of the partitioners, although several, resolve themselves into one, and may be stated as follows: "The marital rights of Bell, fully attached upon the property, by virtue of the division of the estate by commissioners appointed by the Court of Ordinary, setting apart Mrs. Bell's portion to him in right of his wife, and it was, therefore, liable to pay his debts; that, by the return of the commissioners, and the acceptance of it by the Court of Ordinary, being, by such acceptance, made the judgment of that court, the portion set apart to Bell, in right of his wife, vested absolutely in him, and is not subject, therefore, to his wife's equity; and that the presiding judge erred in ruling contrary to these positions."

These were the grounds relied upon mainly in the argument; the points made as to the regularity of the proceeding under the order of the court, for a division, and as to the refunding bond, are considered as involved in these grounds. It occurs, then, to the court, that the only question for them to determine is this, to wit: According to the facts, was there such a reductio in possessionem, by Bell, the husband, as vested the ownership of the property in him, as against his wife's equity? for, word the exception variously as you may, in our judgment, this is the only point left in the case.

In relation to marital rights, so far as they are concerned with an equitable interest or chose in action, we remark that they are inchoate. They, as against the wife's equity, amount to nothing; and as against her right of survivorship, they are to be considered as a mere right to reduce into possession. The right of property in them exists upon condition; the absolute ownership can be only upon compliance with it. If, in the one case, the wife asserts her equity, or, in the other, the usband dies before he gets possession, his marital right is as though it

Bell et al. vs. Bell.

had never been. All the questions between the wife's equity and the husband, or his assignees, turn upon the possession. They are to be settled upon a fact. The question of possession may be a mixed one of law and fact. It may be, and it is here, an inquiry whether, upon a given state of facts, there is, in the eye of the law, a sufficient possession. But in no case can the rights of parties, thus situated, be adjudged, without a determination of the great issue, was there or not a reduction into possession? Whilst, in this case, we do not hold that there must have been a tradition, by the administrator, into the husband's hands, or a manucaption on his part; yet we do believe there must be an actual possession in the husband. A delivery to his agent would be sufficient; a settlement with the administrator-a discharge executed to him by the husband-and afterwards a consent that the property remain with him. So, in many cases, where the property, from its character or its situation, does not admit of immediate personal reception; in short, any acts done, which show the intent of one party to abandon, and the other party to assume, possession, will be sufficient. But, in all cases, there must be facts exhibited to show that the administrator does, in truth, part with the possession, and that the husband does, in fact, with his consent, assume it. Chancellor Harper (in Perryclear vs. Jacobs, in 2 Hill's Ch. Rep. 509) speaks of the possession required, as an "actual possession. Not a legal right, or a property vested by legal implication, but a right, consummated by an actual possession. Such, too, we think, is the view of all the authorities. We deny that, in this case, the property vested in Bell, by operation of law, so as to defeat the wife's equity; and we also deny that the facts show actual possession in him, and are of the opinion, that the decision of the learned judge on the circuit bench was right. The administrator holds the legal title in the property of his intestate; he may aliene or encumber it. Does the return of the commissioners divest it? The object of their appointment is not to divest the title of the property, but to separate and apportion it. Their return effects a severance, and ascertains, not only the amount of each share, but (in case of slaves) designates the specific individuals which belong to each. We are not, however, prepared to say, that it is conclusive as to these things. It certainly does not divest the administrator's legal title. Would the facts of this case be sufficient, upon which to maintain an action of trover, in favor of Bell against him? We apprehend not. Would not the plaintiff, in such a suit, be required to show, not only the division of the slaves but an acquittance to the administrator?

The statute of Georgia requires, before the assignment to the distributees of their respective portions, they shall execute, to the administrator, a bond conditioned, to refund their respective proportion of the debts. which may be established against the estate. In the action of trover, we are clearly of opinion, that before the plaintiff could recover, he would be held to show the execution or tender of the refunding bond. The record does not show that a bond was given, but the contrary. It appears, from the record, that Bell and wife, not being present or represented, their share wus left with the administrator, where it remained until it went into the custody of the law. There was, therefore, no

Bell et al. vs. Bell.

assignment of it and no bond. The complainant, in the bill, does not claim her equity, under the division of the commissioners and the judgment of the Ordinary thereon. She neither seeks to set it aside nor to affirm it. Her equity rests upon higher ground; it exists anterior to, and independent of it; it attaches upon the property itself, aud is spoken of by learned commentators as a lien. Wherever equity can reach the property, if not reduced into possession, before its interposition, by the husband, she will lay her hand upon and hold it, until provision is made for the wife. All, then, the complainant avers, or is interested in showing, as regards the proceedings under the statute, is, that the facts do not prove a reduction into possession before she filed her bill. (This, by the by, in answer to the argument of counsel, to the effect, that a party who claims, under a judgment, cannot attach it for irregularity.) Again if the proceedings under the statute vested the property, by operation of law, in Bell, then is the administrator discharged fully of his trust, and if, being still in possession of the property, he makes way with it, he and his securities would not be liable on his bond. We cannot hold to a position, whose results would be thus absurd and unjust. We are of opinion that the property in Mrs. Bell's share, according to the facts of the case, did not vest in her husband. It does not help the matter to say, that the division made the share of Mrs. Bell liable to a levy and sale, and that the purchaser would not get a better title than Bell had. All this may be true, and, so far as the argument affects this case, the reply is, that admitting this to be so, the wife's equity may be asserted equally and at all times against the husband, his assignees, his creditors and purchasers under execution against him. She will not be compelled to stand by until a sale, and then go upon the purchaser, who may buy subject to her equity. Equity will give her relief by enjoining creditors, and settle her rights, whenever the property is within its reach. As to the possession, the bill states that Bell never had the possession, and that it never was out of the administrator. The demurrer admits the truth of these statements, and perhaps it would be safe to rest this point here. But if it be, as it was contended, that the bill and its exhibit, viz., the return of the commissioners and the judgment of the court thereon, prove that there was possession, then let us look into that exhibit and see how the matter stands. There was in truth no order taken to make the return the judgment of the court-it was spread upon the records however, and we are willing to admit that this is presumptive proof of its having been made the judgment of the court. Now, the judgment is co-extensive only with the return-in other words, the return is the judgment. What, then, does the return prove, as to Mrs. Bell's share? It proves that certain slaves were set apart for Bell in right of his wife, not assigned to him. Just as the minor child's part was set apart, there being no guardian to receive it. It proves, for it says, that there was no representative of Bell to receive it, and for that reason the return declares that it was left with the administrator. It was left with him, to be paid over to Bell, beyond all doubt, when he should apply for it and give the bond which the law requires. And we must believe that it was the intention of the commissioners that the administrator should keep the property, until the law was complied with. What, then, does

Bell et al. vs. Bell.

the court adjudge? Why, among other things, that the property is in the hands of the administrator. So far, therefore, from the proceedings showing possession in Bell, we are satisfied that they, on the contrary, show possession in the administrator; and it continued in him until the property was seized by the sheriff. This was property which from its nature and position was capable of actual delivery; we think there was no actual possession, or proof of anything equivalent to it, and confirm the judgment of the court below.