#### Fogartie and Wife vs. Hubbell.

Tried in Charleston, 9th June, 1835, before his Honor Judge Eakle.

David Sealy gave Sears Hubbell his note, dated April 4th, 1828, for money due him, and died intestate. S. Hubbell brought an action on this note, and another demand against Fogartie and wife, as executor and executrix, in their own wrong. The defendant pleaded *non assum. test,*and *ne unques ex:*the cause was tried June, 1831, and a verdict found for plaintiff. The defendants appealed, and the Court of Appeals dismissed the motion for a new trial. The plaintiff entered up judgment and took out execution against the goods of Sealy, or of D. Fogartie, and Ann, his wife. Under this execution the sheriff took two negroes, Die and Tom, and advertised them as ne-groes of the estate of Sealy. In ^pril, 1832, the negroes were sold, and bought by Hubbell. The defendants, at April term, 1832, obtained an order for leave to pay into court $214 — and moved to have satis, faction entered on the judgment, or the execution set aside. The plaintiff moved for leave to amend the judgment, and execution, so as to require the sheriff to levy the debt and costs of the assets of D. Sealy, in the hands of defendants, *et si non, de bonis 'propriis.*His Honor refused permission to enter judgment for the -debt *de bonis*propriis. and granted the order to set aside the execution. The *25plaintiff appealed — and the Court of Appeals reversed the judge’s order to set aside the judgment, and gave leave to amend the judgment and execution, as prayed by the plaintiff. See the case 1 Hill 167. The plaintiff took out of court the residue of his judgment-, and also the amount of a small- judgment against the same parties, which had been assigned to hi».

This action was brought in the natóe of D. Fogartie, and Eliza Ann, his wife, to recover from the defendant the negroes boughi of the sheriff.

The plaintiffs examined James Allen, who swore that the plai'. tiff, Eliza Ann Fogartie, asked him to accompany her to the saleon Tuesday, 3d April, 1882 ; that she forbid the sale, and said the negroes were not the estate of Scaly’s, but her’s. That they were put up and bid in by her at 249 dollars. That she said she would pay the money in ten or fifteen minutes. That the sheriff wailed ten or fifteen minutes, and put them up to sale again, and they were bought by defendant at $115. That she told him she had the money, or was to get it at the court-house. That he could have lent her the money, and would have given $250 for Tom, oi.e of the negroes.

Mrs. Allen said that she called on fiubbell, with E. A. Fogartie, soon after the sale ; and E. A. Fogartie offered to pay him, hut he refused to give up-the negroes, but admitted he had promised to do so. Said he had had a great deal of trouble, and there was another judgment.

William Arms proved a demand and refusal.

The sheriff’s books were produced, in which it was entered that the negroes were sold as the estate of Sealy — bought in by E. A. Fogartie, and re-sold at the expiration of fifteen minutes. First, sale, $245 — second, 115.

A deed from David Sealy to James M. .‘Lowry, dated-December, 1827, was produced, by which Die and Tom, with other property, were conveyed by David Sealy to James M. Lowry, in trust, for the sole and separate use of E. A. Sealy ; and after her decease, to the children of D. Sealy and E. A. Sealy, if any ; and if none, to the said E. A. Sealy and her heirs; riot subject to the debts, of her present or any future husband; and also, the judgment and execution, and all the orders made in the case of Hubbell vs Fogartie.

W. Meacber proved the value of Tom, 250 dollars ; and that he was hiring him of plaintiff for upwards of a year before the sale, at 8 dollars a month.

Mr. Hunt testified that he had a note of plaintiff, E. A. Fogartie, on which he could raise the money. That the mteution was to for. bid the sale ; and as a last resort, buy ii the property. That- Ilub-bell’s debt was intended to be paid out of Lord’s debt, when the estate ®t Sealy was settled. That the case with Lord was settled about six weeks ago ; and a sum of about 100 dollars, exclusive of costs, recovered. The property in dispute with Lord was included ih the deed of 1827. A notice tolhe sheriff, stating- tint the negroes taken in execution, were included in the deed of 1827, and not liable to the execution, was attached to the execution.

E. A. Fogartie is the widow of Sealy, and married to the otbet *26plaintiff since his decease. This suit is brought for her benefit; anil Fogartie required an indemnity against the costs, for which security was given.

Dr. Irving Was called by defendant. He proved that E. A. Fo-gartie called on him, April, 1832, on Monday,, and requested him to postpone the sale till Tuesday, to which he assented. That on Tuesday the negroes were put up to sale, and when E. A. Fogartie had bid to the amount of the debt, Hubbell said all he wanted was his money,,and stopped. That they were knocked off to E. A. Fogar-tie, and she requested time to pay the money. That he told her the time allowed was fifteen minutes, and that he must sell again the same day if she did not comply; and advised her to look out for the money. That he waited more than fifteen minutes, and asked her what she was going to do. That she told him she could raise the money in ten or fifteen days, but could not pay it that day. That he then resold — put them up at the former bid, and no one offered *$*that he put them lower and lower, till at last there was a bid, and they were then bid up again to 115 dollars, and at that price were knocked off to Hubbell. They were sold separately. After the sale, Hubbell said if she would pay the debt in ten days, he would take his money and give up the negroes.

His Honor charged the jury, that the execution did not authorize the sheriff to take the negroes of E. A. Fogartie; and that no title passed by the sheriff's bill of sale.” The jury found for the plaintiff

The defendant appeals, and moves for a new trial:—

Because his Honor instructed the jury that the judgment and execution against husband and wife for a debt or default of the wife* *dum sola,*did not authorize the sale of the negroes conveyed by the deed of 1827, to the sole and separate use of the wife: Whereas* it is respectfully submitted—

*First.*— That the bona fides of the deed of 1827, should have been left to the jury.

*’Secondly.*— That the judgment and execution authorized the sale-of the negroes in question, as the property of E. A. Fogartie.

*Thirdly.*— That the plaintiffs, by the form of their action, were precluded from saying that the negroes in question were not the property of Fogartie and wife, and the court should have instructed the jury that the plaintiffs were not entitled to recover. On which grounds, defendant insists, that the verdict should be set aside, and the plaintiffs non-suited ; or else that a new trial should be granted..

*For Appellant*— PETIGRU & LESESNE.

*For Respondents*— B. F. HUNT.

On the general and well settled principles of the law of Baron and Feme, I was of opinion that the separate property of the wife, secured to her by deed, could not be sold under execution, against husband and wife, upon a judgment against both, during the cover-ture, although for a debt or default of the wife before marriage. That was she only question seriously made or argued. By the marriage, the husband acquires an absolute interest in the personal estate of the wife, and the rents and profits of her lands. Whatever she *ac***27qaíres during coverture by gift or bequest, by labor or otherwise, is his. The law thus transferring to him the fund to which creditors looked for the payment of their debts, also makes him liable for them. And he is thus liable, whether he obtains a portion with her or not. In consequence of his thus becoming liable, she is discharged, during the coverture. He is answerable for all actions for which his wife stood attached, and for all debts or defaults for which she was liable at the time of the coverture ; as this liability of the husband arises from the coverture, it subsists only during the coverture; and although the wife must be joined, yet they are not sued as two persons jointly and severally liable ; but as one person in law. They must plead jointly, and will not be allowed to sever in pleading. But a judgment thus recovered against both as one person in law, can only be enforced upon the property of the husband. It would be a total departure from the principle which regards the legal existence of the wife as extinct, or rather as merged in that of the husband, if her separate estate were held liable for a debt, from which, by the act of coverture, she is absolved and discharged, during its continuance. She is sued enly for conformity, and on the ground of the legal union which is sup. posed to exist. A technical rule of pleading, not sustained, perhaps, by any good reason; but the husband only is liable in person or property. I apprehend if the debt were not actually levied during the coverture, and the husband should die, the execution might in that case go against the wife. But during the coverture, both in life, I held, and so charged the jury, that the property of the wife, separate and sole, was not liable to be taken in execution. And on that ground the plaintiffs were entitled to recover. I subjoin the authorities on which I rely, to sustain this view. But on another ground, the plaintiffs are entitled to recover ; at least the negro was not liable to be sold under the execution. The conveyance is “ to James M. Lowry in trust, for the sole and separate use of Eliza A. Sealy, (now Mrs. Fo'. gartie,) not subject to the debts of her present or any future husband”— without regarding the further limitations *over*— “ and after her decease, to the children of D. Sealy, (the donor,j and E. A. Sealy, if any,” &c. — It is clear that the legal estate is in the trustee. The property is his for the uses declared ; and therefore could not be sold for the debts of Fogartie and wife. This view might lead to- a dis. cussion of the form of action, and whether the *cestuy que*trust can maintain the action in his own name, which I shall avoid here, remarking only, that being in possession, with the permission of the trustee, the *cestuy que*trust may maintain the action against a wrong doer. As to the circumstances under which the deed was executed, there was no proof on either side. The bona tides of the deed was not made a serious question even in argument, and there was no ground to submit it specially to the jury. A verdict was rendered for the plaintiff. The defendant appeals on the grounds above stated.

B. Jl EARLE.

If baron and feme are sued on the wife’s bond, entered to by the féme, before marriage, and judgment is had thereupon, and the wife *28die? b 'fove execution, yet the husband is liable, *for the judgment hafíi altered the debt.*— Sid. 337 — Bacon, Barea and Feme.

• So ii' the husband and wife had recovered in right of the wife, and bad judgment, the husband might sue out execution after the death of the wife_Cro. Car. 208.

If there be judgment iu debt upon a bond against a feme sole, and she marry, and after upon sci. fa. against Ihe baron and ferae, and nihil returned, and thereupon judgment be had against the baron and feme, and so it rest for a year and a day, and then the wife die, a sciri Licias will lie against the baron, to shew cause why execution should not go against him upon the first judgment, for the award of execution lies absolute against the baron and feme; and so it became his debt; whereas, belore it was only the debt of the wife. — , Caith. 30,

If a man marries an administratrix to her former husband, and iu her widowhood wasted the assets of her intestate, the husband is liable to the debt of the intestate, during the life of the wife ; and this, shall be deemed a devastavit in him. — Cro. Car, 603.

The opinion of the court was delivered by

Mr. Justice Evans.

This was an action of trover, to recover the value of two'negroes; The negroes were once the property of one Sealy, the former husband of Mrs. Fogartie. Sealy conveyed them, duriug coverture, to James M. Lowry, in trust for Mrs. Fogartie, then Mrs. Sealy. Sealy was indebted to Hubbell, who sued the defendants, after their inter, marriage; and recovered against them, as executors *de son tort.*Upon this recovery, he issued his execution *de bonis testatoris, vel si ñon de bonis pro'priis.*The sheriff seized on these negroes and sold them. The defendant became the purchaser, and the plaintiffs sued Mm to recover their value. The negroes remained in Sealy’s possession during his life, and since in the possession of the plaintiffs. On the trixl there was a verdict for the plaintiffs, and defendant has made a motion in this court, for a hew trial, on various grounds. But as the opinion of the court turns on the third only, no opinion is intended to be expressed on the others. This ground involves the question, whether the plaintiffs can recover against the defendant^ who is a purchaser at sheriff’s sale, of their title to these very ne-groes. To determine this question, it seems to me to be only neces. sary to inquire, what is the effect of a sheriff’s sale. It is to transfer all the title of the defendants iu the action to the purchaser. The sheriff is the agent appointed by law for this purpose. It is said the legal astute is in Mr. Lowry. That may be true, and Lowry, perhaps, may have a right of action against the defendant. The only title which the plaintiffs had, was their possession. A title by posses-. sion is sufficient to maintain trover; but such a title is also the subs-*29■jpct of levy and sale by the sheriff. The only grounds on which it is preteuded this action could be maintained by these plaintiffs, is, that the negroes were in their possession before the levy and sale ; but this possessory title, if such it tnay be called, had been divested by the sheriff’s sale, and transfered to the defendant. There remained, therefore, no legal title in the plaintiffs, which would enable them to bring this action; and a new trial is therefore ordered.

J. J. EVANS.

We concur,

J. S. RICHARDSON,

DAVID JOHNSON,

A. P. BUTLER.

I conceive that upon the third ground, a new trial should be granted. Whatever legal interest the plaintiffs, or either oí them, had, passed to the defe ¡da lit, under the sheriff’s sale, and they are not now at liberty in an action by themselves, to say that they had no title. But if they were, in shewing that they had not title, this action must be defeated. I. however, go further than my brother Evans, and hold that on the second ground, the plaintiffs were precluded from recovering. The recovery against Fogartie and wife, for the loss of the latter, while sole, in intermeddling with the goods of the deceased Sealy, made it her debt: and under the execution, her property might be sold. The negroes sold were conveyed to Lowry, in trust, for her sole and separate use, during her life, and after her decease to the children of D. Sealy and of E. A. Sealy, if any, and if none, to the said E. A. Sealy, and her heirs, not subject to the debts of her present or any future husband. Under this trust, the negroes were in possession of Mrs. F. during her marriage with Sealy, and also during the time she was feme sole. While she was co-yert, (the wife of Sealy,) the trust continued, and the legal estate was in the trustee : when she became discovert, the trust was executed, and the estate absolute in her, for, as I understand, thsre was no issue of her marriage with Sealy. The property while ahe was sole, was subject to her debts, and after her marriage the same liability continued ; for I hold that marriage does not discharge the wife’s liability to her debts. It only makes the husband -also liable during coverture ; so that if at law, the negroes were rightly considered her separate estate, they might be sold under the ex ecu. (ion. According to Gist vs. Porcher, decided February, 1832, at this place, the estate of the wife, under the trust deed in the ne. groes, was liable to sale while she was a feme sole. If this be so, it follows that they may be sold for her debt or tort, while sole, under judgment and execution, for the sum recovered against her and her second husband, Fogartie. The provision in the deed, that the negroes shall not be liable to the debts of her future husband, is a subsisting trust ia favor of her, which the court of equisy would set up and make this her estate separate from his, and thus enforce the provision in th& ised. But a court of law cannot notice it. So as soon as the trust was-*30ended and executed, at the death of the first husband, the legal and equitable estate both united in the wife; and for the purposes'of a case at law, the estate in the negroes would be regarded as that of the husband, and in that point of view, also, the sale was regular, and ■defeats the present action.

JOHN B. O’NEALL.

I concur,

HENRY W. DESAUSSURE.

I concur in the result, which I take this occasion to say, is all I intend, when I concur generally.

J. JOHNSTON.