#### *Ex parte Caroline Geddes, executrix of G. C. Geddes et al.*

On a sale of land, for partition, in wMeh the wife lias a share, the husband may become the purchaser, and thereby become invested, in Ms own right, with the title of all the co-tenants, including his wife.

At a sale of land, by the master, for partition, of which wife owned one moiety, husband became purchaser: he paid the sliare of the proceeds of the co-tenant in money, and gave the master the jointreceipt of himself and wife for her share of the *proceeds:*— Held, that husband was thus invested, in his own right, with the title, and that upon his death wife was not entitled to the moiety which had been hers.

A wife by joining her husband in a receipt for money, the proceeds of the sale of her inheritance, waives her equity in such proceeds ; and upon the money received by the husband, his marital rights attach.

*Before*DargaN, Ob. *at Charleston, March,*1850.

A petition was filed by Mrs; Greddes and a creditor of tbe late Mr. Greddes, setting forth an account of bis debts and assets, and praying a sale and distribution of tbe estate under tbe direction of tbe Court. On this petition, an order was granted for a sale, *302and Mr. Gray, one of the masters, was directed to take an account, and give notice to creditors. A sale was made, and the account taken, and by Ms report, dated 4tb March, 1850, Mr. Gray found the amount of the debts and assets. A lot in Rutledge-street gives rise to this discussion as to which he found, as follows:

“ There is also a vacant lot of land belonging to the estate in Montague-street, which remains unsold, and which is supposed to be worth about eight hundred dollars, which I submit ought to be sold for payment of the debts.

“ Besides these, there is a lot of land, No. 16 Rutledge-street, which was sold under a decree of this Court, for partition between Mrs. Geddes and Mrs. Milne, in February, 1840 *;*Gilbert C. Geddes was set down as the purchaser, but he .paid only Mrs. Milne’s share, or half of the nett sales, to wit: Three thousand nine hundred and fifteen dollars, 37-100, and gave master Lau-rens, his, and Mrs. Geddes joint receipt for the other half, taking his title for the property ; but as the lot remains undisposed of by Mr. Geddes, I submit that his undivided half or interest in it ought to be sold for the benefit of the creditors.

“ The schedule annexed, marked A, will show the particulars of the sales of the plantation and negroes included in the mortgage held by the Bank of the State, which were sold by me under the decree.”

To this report Mr. Memminger excepted that the whole of the Rutledge-street lot was assets to pay the debts of testator, instead of one half, and that the master should have so reported.

The cause came before Chancellor DaRGAN, who made the following decree:

DARGAN, Ch.- This case comes up on the master’s report and exceptions. The part of the report which is the subject of controversy, relates to the lot of land No. 16 Rutledge-street. The Commissioner reports that this lot was “ sold under a decree of this Court for partition between Mrs. Geddes and Mrs. Milne in. *303February, 1840. Gilbert 0. Geddes was set- down as the purchaser, but he paid only Mrs. Milne’s share, or half of the nett sales, to wit, three thousand nine hundred and fifteen dollars, 37-100, and gave master Laurens his and Mrs. Geddes, joint receipt for the other half, taking his title for the property. But as the lot remains undisposed of by Mr. Geddes, I submit that his undivided half or interest in it ought to be sold for the benefit of creditors.”

When the wife’s land is sold for the purpose of partition under a decree of the Court, she becomes thereby divested of her title and inheritance in the land, and.she becomes the equitable owner of' the money or fund arising from the sale, or of her just proportion of it. Her title or interest ceases in the land, and attaches upon the money. I perceive no reason why the husband should not become the purchaser at such a sale as well as a stranger. And when he obtains the master’s title, the land is his property, clear of any title or claim on the part of the wife. Over the purchase money, however, he has no control farther than is permitted by the wife, or authorized by an order of the Court.

The equities of the wife in the purchase money arising from the sale of her inheritance under circumstances like these, has 'been very clearly defined by a series of decisions of our own Courts. The master has no right to pay it to the husband on his own receipt, except under an order of. the Court. If he does, the payment is no discharge to him as against the claim of the wife; or she may elect to set up her claim by bill against the husband himself, as having illegally possessed himself of her funds. But she may waive her equity by joining with her husband in a receipt, or doing some equally significant and unequivocal act. If she does this, the marital rights attach, as upon personalty, and she cannot afterwards recall her equitable claim. The *rationale*of these principles is^ this: The land was her inheritance. The sale does not in this Court, *ipso facto,*convert it into personalty, but it retains in equity its character of real estate. She has a right to a settlement. As before the sale under the decree, the husband could not sell her inheritance without her *304concurrence and formal renunciation as prescribed by law; so after the sale, no act of the husband, *alone,*can deprive her of this right, of which she cannot be divested except by a decree of the Court, or some formal renunciation of her equity in the fund. If the husband were permitted to give receipts for the wife’s funds arising from the sale of her land, it is obvious she might be deprived of her equitable rights without notice of the proceeding, or opportunity of asserting them. *Wardlaw*vs. *dray, 2 Hill,*Ch. *644; Yeldell*vs. *Quarles,*Dud. Eq. *55;*Cheves Eq. 162; *JEx parte Mobley,*2 Rich. Eq. 56; *Daniel*vs. *Daniel,*Id. 115. To which may be added the unreported cases of *dardner*vs. *Morton,*Columbia, May Term, 1849; *Davenport*vs. *Davenport,*Columbia, December Term, 1849.

If Mrs. Geddes had been a *femme sole*at the sale of her inheritance for partition, and had herself become the purchaser at the master’s sale, she would have bought her own share, and the moiety of her co-tenant in common. The case reduced to its essence then, would be, that she was the purchaser from herself and her sister. But a person cannot purchase from himself. The result of the proceeding would have been simply to blend the title of her co-tenant with her own. And I incline to the opinion, that in any question which might have arisen in the case supposed, in which the distinction would have been important, the title of Mrs. G-eddes to her own moiety would be referred to its original source, and would not have been considered to be derived from the proceedings in partition. This rule would apply, because in such a case, as to her moiety, she was seized of the fee before the sale, and the sale could give her no more. There would be no change of title whatever; the result would be the same, as if her co-tenant, without any sale for partition under decree, had conveyed her share to Mrs. Geddes.

But the case is entirely different when the husband is the purchaser. He purchases in another right than that of his wife. He purchases in his own right. *The title*is changed. Before the sulc he held as husband: afterwards as a purchaser from the wife. *305Surely the Court of Equity, in proceedings for partitionlflcan, when the proper forms are observed, convey the wife’s lands to the husband for a consideration. That consideration is the purchase money to which the wife’s equity attaches. It is for herself to determine whether she will waive it. It is a matter for her own private discretion with which, if she be of age, the Court will not interfere. It would only be disposing of her equity in the purchase money, as she might have disposed of her legal estate in the lands, by joining with her husband in a conveyance under the proper legal forms.

The conclusion and judgment of the Court is, that the lot in Butledgo-street is the property of the estate of Gilbert C. Ged-des, and that Caroline Geddes has no interest therein except her dower.

From this decree, Mrs. Geddes appealed, on the grounds:

1. That she was seized of an undivided moiety of the Butledge-street lot, and her title has never been divested.

2. That the sale for partition is only a conversion as far as is necessary for the purpose of partition; and the conveyance of the other moiety to Mr. Geddes was all that the partition was designed to effect.

8. That in the bill for partition, she and her husband were joint complainants, and the decree treats their interests as joint; and nothing in a bill so framed could be done to give her husband an int erest against her rights.

*Lesesne,*Petigru, for appellants,

cited *Messervey*vs. *Barellij*2 T-TiTl, Ch. 567; *Lucas*vs. Jacobs, 1 Beav. 436; 4 Mylne & Or. 389; *Cfraydon*vs. *(Jr ay don,*MeM. Eq. 63 ; *Innes*vs. *Jachson,*16 Yes. 367 ; 6 Bow, 17 ; Pow. on Mortg. 756 ; *Wightman*vs. *Vaullc,*Dud. Eq. 212 ; *Achroyd*vs. *Smithson,*1 Bro. C. C. 503 ; *Tobey*vs. *Barber,*5 Johns. B>. 68; *Ldgerton*vs. *Muse,*Dud. Eq. 179.

*McQrady,*contra,

Chev. Eq. 162; *Young*vs. *Teague,*Bail. Eq. 13; *McNish*vs. *G-uerard,*4 Strob. Eq. 66.

*306*er Curiam.*

This Court is entirely satisfied with the decree of the Chancellor, which is in conformity with the numerous decisions in this Court. It is therefore ordered that the same be affirmed, and the appeal dismissed.

JOHNSTON, DuNKiN, DaRGAN and Waedlaw, CC., concurring.

*Decree affirmed.*