#### *Ex parte John W. Mobley.*

Where land, to a share *of*which a married woman was entitled, was sold for partition, and, after the sale, her husband assigned his interest in the proceeds, and after the assignment, but whilst the fund was still in the hands of the commissioner, the wife died ; *held,*that the proceeds of the sale were to be regarded as land, — that the husband’s marital rights had never attached therein, — and, consequently, that his assignee was only entitled to the share which the husband, as distributeeof his wife, was entitledto under the statute of distributions.

*Before*Dunkin, Cii. *at*Chester,

June, 1845.

*The Chancellor.*The wife of Leroy Griffin was entitled to a tract of land in Ghester district, or to a proportional part thereof, as one of the heirs at law of Edward Mobley, deceased. For the purpose of making partition among the heirs of Edward Mobley, deceased, the land was sold by the commissioner in equity, and the proceeds are now in his hands.

The sale took place in October, 1841, and in December, 1841, Leroy Griffin assigned to the petitioner his interest in the proceeds.

Prior to the sale, the land belonged to the wife. The husband had no interest but in the rents and profits, as they accrued. After the .sale, the .proceeds continued so much the property of the wife, that they could not be paid over without her order or receipt. Although her land had been converted into money, it *57was only done to facilitate partition. The fund partakes of the qualities of the realty. The marital right had never attached, ft never could have been reduced into possession without some further act done on her part. But, before that act was done, Mrs. Griffin has departed this life. The fund, the proceeds of her inheritance, is still in the custody of the court.

It appears to the court that the laws of Georgia cannot affect the distribution of this fund, and that the petition is properly framed, claiming for the petitioner one third of Mrs. Griffin’s interest in the premises.

It is ordered and decreed, that the costs be paid out of the share of Mrs. Griffin, and the petitioner have credit on his bond, for one third of the surplus thereof.

The petitioner appealed, on the grounds :

1. Because the interest of Leroy Griffin in the fund, depends upon the laws of Georgia, as the fund in dispute is personal property.

2. Because Leroy Griffin had assigned all his interest in petitioner’s bond, to petitioner, which was substantially stated in the petition, and Leroy Griffin was, and is, entitled to the whole of his deceased wife’s interest in said bond, and not the one third part thereof.

3. Because the Chancellor erred in deciding that Leroy Griffin was only entitled to one third part of his wife’s interest in petitioner’s’ bond, whereas it is’ submitted he is entitled to the whole of her interest.

Curia, per Dunkist, Ch.

The land belonging to the wife was sold only because it could not be properly divided among those entitled to it. The sale was then for the purposes of partition. *Ackroyd vs. Smithson,*1 Bro. C. C. 503, was decided by Lord Thurlow, who was induced to change his opinion on the argument of Mr. Scott, afterwards Lord Chancellor Eldon. The language of Lord Thurlow in that case is — “that he used to think, where it was necessary for any purposes of the testator’s disposition, to convert the land into money, that the undis-posed money should be personalty; but the cases fully proved the contrary.” This principle has been recognised in our own courts. But the very point submitted by the appeal has been decided by the court of law. In *Hood vs.*Archer, 2 N. and McC. 149, the wife’s inheritance was sold by the sheriff, who had received the purchase money. The wife then died, and the *58question was whether the money *belonged*to the husband, by-virtue of his marital rights, or whether the right did not remain in the wife so as to vest in her administrator. The court held that it belonged to the administrator of the wife. The authority of this case is fully recognised and the principle applied in *Wardlaw vs. Gray, 2*Hill Ch. 644. Of course the assignee of the husband can stand in no better situation.

The appeal is dismissed.

Johnson and Johnston, CC. concurred.

*Boyce,*for the appellant.