#### ELIZABETH GILMORE, *by her*committee, WILLIAM J. SLOAN, *against*G. B. GILMORE, HASTEN GILMORE AND OTHERS.

Where a wife filed a petition for a divorce and alimony, it was *Held*that a court ■®'f equity would not, in favor of such wife, restrain an assignee from reducing- into possession a chose in aetion of the wife, assigned him by the husband for value, and without notice of an equity in the wife.

Where a husband assigned a chose in action of the wife for value, and without notice of an equity in the wife, and the assignee commenced a suit in .a court of competent jurisdiction to reduce it into possession, and got a decree for the same, it was *Held*that the filing of a petition for divorce and alimony by the wife, did not constitute such a *lis pendens,*as would restrain the assignee from proceeding to reduce it into possession.

Appeal from an interlocutory order of the Court of Equity of Chatham county, at. Fall Term, 1858, Dion, J., presiding. Elizabeth Gilmore filed a petition for a divorce, in the Court of Equity for Chatham, at Spring Term, 1858, alleging that she was the wife of Greenberry Gilmore, by whom she had *285four children ; that her husband had so mistreated her, as to bring on insanity, and that in May, 1857, he left the State-clandestinely with a young woman, and went to Texas, where-he was living in adultery with her; that at May Term, 1858,. of Chatham county court, an inquisition -of lunacy was had,, by which the petitioner, Elizabeth, was declared *non compos--*mentis, and the petitioner, William J. Sloan, was appointed-committee of her estate.

The petition further alleges, that in April, 1855, William Patteshall, of Chatham county, the father of th,e petitioner, Elizabeth, died intestate, leaving an. estate in. which her distributive share is about one thousand dollars;, that this estate is still in the hands of the administrators, Delilah Patteshall and Zachariah Patteshall; that previous to his absconding,, her husband assigned his interest in this distributive share to the defendant, Hasten Gilmore, for the sum of seven hundred dollars; that petitioner believed this sale was- a sham, intended to defraud her of her rights, and that no- consideration passed from the said Hasten, to the said Greenberry; but such sham sale was intended to enable Hasten Gilmore to transmit said distributive share to Greenberry Gilmore, in the State of Texas, to which he was then meditating a flight; that Hasten Gilmore, witli this view, has filed a petition in the county court of Chatham, claiming the aforesaid distributive share; that there has been an account rendered, and- there is danger that the said Hasten may succeed in his design. The petition then prays a writ of injunction to restrain the administrators from paying over, and the said Hasten from receiving petitioner’s distributive share in the estate-.

The answer sets out that on the third of January, 1856, Greenberry Gilmore assigned his interest in the estate of William Patteshall, to the defendant, and for value and without notice of the petitioner’s equity; that at August term, 1857,-of Chatham county court, the defendant, Hasten Gilmore, as assignee of the interest of Greenberry Gilmore, in right of his wife, in the estate of William Patteshall, filed, a petition for a settlement, and obtained a final decree, in which the dis-*286tribntive share abovementioned was decreed to him, amount* ing to about $820.00, after paying costs of suit; that the assignment was in all respects *bon-a fide,*and with no intent on the part of the defendant to defraud any one, and the charges of the petifiou that it was only a pretended sale, are entirely without foundation; that Greenberry Gilmore urged him for sometime to purchase his interest in the estate, which he finally did, paying him $700.00 for the same, in money and good notes, and without any notice that his right wonld be disputed; that the estate was unsettled at the time, and the exact amount of a distributive share could not be ascertained with certainty, but, as it afterwards appeared, the price paid for it, with the interest on the same from the date of the assignment, amounted to within a few dollars of the full amount of a distributive share. The answer further states, that in the month of March, 1857, Greenberry Gilmore executed a release, to the administrators of William Patteshall, of all his interest in right of his wife, in the estate of their intestate, stating that he assigned all his said interest to the defendant, Hasten Gilmore; that the administrators paid him $125.00 on this assignment, and, in the receipts which they took from him, recog-nised him as being entitled under the assignment to a distributive share of the estate.

Upon the filing of the answer, the injunction which had been previously granted, was dissolved, From this order, the petitioner appealed to this Court.

*Ileaden, Phillips*and *Hcmghton,*for the petitioner.

*Badger*and *Moore,*for the defendant.

Battle, J.

We have given to the interesting questions presented by the pleadings, in this case, much consideration, and, in doing so, wo have been aided by very able and elaborate arguments from the counsel on both sides. We have examined with minute attention all the positions taken by the counsel by the plaintiff, and have at last been unable to discover any principle upon which we can give her the relief *287which she seeks, without violating some well recognised rule of law or equity.

The counsel for the plaintiff, takes, as the basis of his argument, the principle decided by this Court in the case of *Arrington*v. Yarbrough, 1 Jones’ Eq. Rep. 72, that the wife is entitled by survivorship, to her equitable dioses in action as against a *bona fide*assignee for value, if the husband die before the assignee can reduce them into.possession. The spirit of this principle, the counsel contends, will extend to and embrace every case of a dissolution of a marriage, whether it be by divorce or death, and whether the divorce be *a vinuolo*matrimonii, or *mensa et thoro.*That may be admitted, and yet, it will not, of itself, aid the plaintiff, because the Court of Equity will not stay the hand of the husband or assignee from reducing the chose in action into into possession, if he can, before the death of the husband. To do so, would be reviving the exploded doctrine of an equity for a settlement, and establishing it in a condition more objectionable than that in which' it formerly existed.

The counsel then, is driven to the necessity of contending further, that by the filing of the plaintiff’s bill, a *Us*was constituted in court, and that during the *Us pendens,*the Court would arrest the chose in action of the wife and keep it in the condition in which the suit found it, for the purpose of making it amenable to whatever decree the plaintiff might finally obtain. That argument would, perhaps, be irresistable, if the defendant had not purchased *bona fide,*and for full value, what the husband had the right to assign, and without any notice of any cause for which the plaintiff had the right to file her bill; and had himself brought suit in a court of competent jurisdiction for the recovery of the claim, and obtained a decree therefor, just at the time, when the bill was served upon him. These facts are stated in the defendant’s answer, and must be taken to be true, as the case now stands, which is upon a motion to dissolve the injunction. It cannot be, that the *Us pendens*of the plaintiff, can have the effect to arrest a prior *Us pendens*of the defendant,' proceeding indeed *288in another court, but according to the same “rules of practice prescribed for and used in courts of equity.” See Rev. Code, ch. 64, sec. 7. We have seen that the wife cannot enjoin the collection of her choses in action, so as to prevent an assignee from collecting them before the death of her husband, and thereby giving her a chance to survive him; can she do so-with a view to get a decree for a divorce, and thereby secure for herself her choses in action in derogation of the rights of the assignee ? Yery certainly, she cannot, unless there is some provision to that effect in the act concerning “Divorce and Alimony,” in the Revised Code, ch. 39. The only section of that act which seems to bear upon the question is the 8th, which provides:

> “In all cases where- there shall be a sufficient cause for a divorce, (absolute or from bed and board,) with alimonjq the wife may exhibit her petition or libel at any time, in case her husband is then removing, or is about to remove, his effects from the Stale, if she will likewise state and swear that she doth verily believe that she is entitled to alimony, and that by delaying her suit, she will- be disappointed of the same, by the removal of her husband’s property and effects out of the State. And, in such eases, any Judge may, thereupon, make an order of sequestration or otherwise, as the purposes of justice may seem to require.”

We do not think that this section can admit of a construction to aid the plaintiff. It is the “ husband’s effects” and the “husband’s property,” the removal of which, is to be restrained by a writ of sequestration. What constitutes the husband’s property and effects, whieh are to be thus restrained ?' Certainly not what he had sold *bona fiiie*and for val me, to one who bought without any notice of the wife’s ground of com-, plaint, and before it in fact existed. An article of property, the legal title of which-, had been thus bargained and sold, would clearly not'come within the- meaning of the aet as being still the husband’s property. Nor, we think, would an equitable chose in action, of which the title had been completely transferred in equity by an assignment, and a notice *289thereof to the trustee ; see Adam’s Eq. 53 — such seems to have been the nature of the transfer in the case now before us. The husband made the assignment to the defendant, of which the administrators of the plaintiff’s father had due notice, and recognised the defendant as the owner. Under these circumstances, we think, the Court of Equity had no power to restain the defendant from receiving and the administrator from paying over to him the distributive share in controversy.

As we hold the injunction was rightly dissolved upon the filing of the answer, for the reasons which we have expressed, we deem it unnecessary to consider, the objections urged by the defendent’s counsel, that the plaintiff, being a lunatic, is incapable of maintaining a suit for either kind of divorce, because she cannot make the affidavit which is required of her by the 5th section of the act. That is a question which arises more properly between the plaintiff and her husband, and may possibly come before us hereafter. The case is now here only on an appeal from an interlocutory order, and as we have said enough to dispose of that, it may be premature, and is certainly unnecessary for us to express an opinion upon any other matter, which the cause may present. This opinion will be certified as the law directs.

Pee CuRiAM, Decretal order affirmed..