CASE IT — PETITION EQUITY

— JULY 2.

#### Ward vs. Crotty, &c.

APPEAL PROM FLEMING- CIRCUIT COURT.

1. The release by a wife of her potential right of dower forms a valuable consideration, sufficient to sustain a settlement upon her by.her husband, even against his-^creditors.

2. An agreement by a husband to transfer to his wife a note, for a part of the purchase money, for her separate use, in consideration of her release of her potontial right of dower in land sold by him, is binding in equity, and may, upon her application, be specifically enforced against him.

3. Between equities that which is prior in time must prevail.

4. *Section*11, *of chap.*24, *of the Revised Statutes,*does not avoid an unrecorded assignment in behalf of creditors having notice thereof before the acquisition of a legal title to the property. (17 *B. Mon.,*625.)

5. A husband sold land in which his wife had a potential right of dower, which she refused to release unloss ho would givo her one of the notes which he had taken from the purchaser. He agreed to assign the note to her for her separate use, and delivered it to her, endorsed, *‘I assign the within note to 0. W., [the wife,] for satisfactory consideration.Ho trustee was named, nor was the assignment recorded* She then signed and acknowledged the deed. Afterwards his creditors sought to subject the note, when she asserted her claim thereto. *Held,*That against the subsequent creditors aha is entitled to the note. Against the prior creditors she is entitled to the value of her potential right of dower at the time she released it, with interest; the residue, if any, due upon the note, to go to the prior creditors.

Andebws & Cox, for appellant,

cited 5 *B. Mon.,*298.

*60Wm. S. Botts, for appellees,

cited 2 *J. J. Mar.,*82; 18 *B. IrjLUio.y y t*jl c?u>o.

W. H. Cord, on same side,

cited *Marshall vs. Hutchins,*5 *B. Mon; McCann vs.*Letcher, 8 *B. Mon; Hunt vs. Dupwy,*11' *B. Mon.,*285-6 ; *Bullard vs. Briggs, Pick. Mass. Rep.', Fassett vs. Fleming, Ms. opin. summer term,*1856.

JUD6E BULLITT

delivered the opinion op the court:

Thomas Ward, owning land in which his wife, the appellant, had a potential right of dower, agreed to sell it to one Hudson for $1,156; Hudson to pay $300 down, and to give his three notes for $285,66 each for the residue.

. The conveyance having been prepared, the clerk of the county court, at the request of Ward and Hudson, called on Mrs. Ward to sign and acknowledge it; but she refused to do so, unless Ward would give her one of said notes. Ward then agreed to assign said note to her for her separate use, and delivered it to her with this endorsement: “I assign the-within note to Catharine Ward for satisfactory consideration. Dec. 29, 1859. Thomas Ward.”

After the note had been delivered to her, she signed and acknowledged the deed.

In 1861 Crotty and other creditors of Ward obtained attachments against his property, upon affidavits authorizing such proceedings, and sought to subject the note assigned to Mrs. Ward.

She, by answer and cross-petition, asserted her claim to said note, and alleged and proved the facts above stated. The court below dismissed her cross-petition, from which order she appealed.

That the release by a wife of her potential right of dower forms a valuable consideration, sufficient to sustain a settlement upon her by her husband, even against his creditors, is too well settled to require any citation of authorities.

It is contended that the judgment should be affirmed because the assignment of the note was not made to a trustee for Mi's. Ward, nor expressed to be for her separate use ; and also because the assignment was not recorded.

*61We are satisfied that Ward’s agreement to transfer the note for the separate use of his wife, was binding in equity, and might, upon her application, have been specifically enforced against him. *(Livingston vs. Livingston,*2 *John. C. R.,*537; *Garlick vs. Strong,*3 *Paige,*440 ; *Marshall vs. Hutchinson,*5 *B. Mon.,*298 ; *McCann vs. Letcher, 8 B. Mon.,*320*; Athurly on Marriage Settlements,*161 ; 2 *Kent's Com.,*166.

The creditors, by their attachments, acquired only an equitable claim upon the note. Her equity being prior to theirs must prevail.

Whether or not section 11, chapter 24, of the Revised Statutes, applies to an assignment of a chose in action, or a conveyance to a married woman for her separate use, we need not decide; because, even conceding that it does, the statute does not avoid an unrecorded assignment in behalf of creditors, having notice thereof before the acquisition of a legal title to the property. *(Forepaugh vs. Appold,*17 *B. Mon.,*625.)

It appears that some of Ward’s debts were contracted before the assignment, and some alterwards. Against the subsequent creditors Mrs. Ward is entitled to the note. Against the prior creditors she is entitled to the value of her potential right of dower, at the time she released it, with interest. The residue, if any, due upon the note, should, if necessary, go to Ward’s prior creditors. *(Garlick vs. Strong, supra.)*

The judgment is reversed, and the cause remanded for further proceedings, not inconsistent with this opinion.