WIFE'S CHOSES In a case, therefore, where the wife had been a mortgagee in fee, her surviving husband was held entitled to the mortgage as her administrator, and her heir was considered to be a trustee for him. This was admitted in Turner v. Crane (a). SECTION III. ASSIGNMENT OF IN ACTION. Assignment in equity. ASSIGNMENT OF THE WIFE'S PERSONAL CHATTEL OR THE husband's power of reducing his wife's chose in action into possession may be assigned in equity though not at law. That is to say, a court of equity will, in a case otherwise unobjectionable, assist the husband's assignee to recover the wife's outstanding personal chattel or chose in action; for the assignee will be considered to at Doctors' Commons often cause a pear to act under the 31 Edw. 6, c. WIFE'S CHOSE v. Jackson, have obtained the husband's power of reducing the chattel ASSIGNMENT OF into possession; but always subject to the wife's right by survivorship. The value of the assignment, therefore, depends upon its being made available by reduction into possession before the wife's claim can arise. For, (whatever the law may have been in former times,) it must now be regarded as a proposition placed by the decision of Sir Thomas Plumer in Purdew v. Jackson beyond the reach Effect of Purdew of controversy and disputation, that all assignments of the wife's outstanding personal chattel,-whether by act of the law in bankruptcy or insolvency, or by the act of the husband himself, as in the case of an assignment to trustees for payment of debts, or to a purchaser for valuable consideration,-pass only the interest which the husband himself has in the subject-matter; namely, an interest liable to be defeated by his death before reduction into possession, leaving his wife him surviving. Accordingly, the assignee will be in no better situation than the assignor; and he too must reduce the subject into possession in order to make his title good against the wife surviving. Lyndhurst. But there was an ingenious and striking argument Argument of Lord suggested by Lord Lyndhurst in Honner v. Morton (b), which, if it had been adopted in subsequent cases, would have greatly qualified the doctrine derivable from Purdew v. Jackson. Equity," said his Lordship, "considers the assignment by the husband as amounting to an agreement that he will reduce the property into possession. It likewise considers what a party agrees to do as actually done; and, therefore, where the husband has the power of reducing the property into possession, his assignment of the chose in action of the wife will be regarded as a reduction of it into possession. On the other hand, where (b) 3 Rus. 68. ASSIGNMENT OF the husband has not the power of reducing the chose in WIFE'S CHOSE Where the chose, neither at the time of the assignment nor afterwards, was capable of re duction into possession. action into possession, his assignment does not transfer the property till, by subsequent events, he comes into the situation of being able to reduce the property into possession; and then his previous assignment will operate on his actual situation, and the property will be transferred." In a subsequent part of his judgment in the same case (c), Lord Lyndhurst says, "I revert to my original opinion, that the husband has no power to give effect to a conveyance of property of this description, unless circumstances so turn out as to have put him in a situation, which enabled him to have reduced the chose in action into possession. If at the time of the assignment he is in a condition to reduce the chose in action into possession, the assignment operates immediately. If he is afterwards in a condition to reduce the thing into possession, the assignment will then have full effect; but if he dies before the event happens on which the chose in action may be reduced into possession, the assignment becomes altogether inoperative.” Now, to invert the order of Lord Lyndhurst, take in the first place the case where the husband has, neither at the time of the assignment nor subsequently, the power of reducing the outstanding chattel into possession. Suppose that the husband and wife concur in assigning to a purchaser for valuable consideration a fund in which she has a vested interest in remainder expectant on the death of a tenant for life; and suppose, furthermore, that the tenant for life outlives the husband. Here the wife surviving will be entitled to the fund, on Lord Lyndhurst's reasoning; because the husband had not, either at the time of the assignment or subsequently, the power of reducing the outstanding chattel into possession. (c) P. 86. T WIFE'S CHOSE This result accords with the decision in Purdew v. Jack- ASSIGNMENT OF son, although Sir Thomas Plumer proceeded upon no such refinement. Secondly, take the case where, although the husband has not the power of reducing the property into possession at the time of the assignment, he acquires that power subsequently. That was precisely the state of circumstances in Ashby v. Ashby (d). There the husband assigned his reversionary chose in action to a particular assignee for value. He survived the person on whose life the reversion depended; and therefore, reduction into possession might well have taken place. Yet, inasmuch as he died before the property was actually recovered, the assignment was, by Vice-Chancellor Knight Bruce, held to be void against the surviving wife (e). In the third place, let us consider the case where, upon Lord Lyndhurst's principle, the assignment would undoubtedly be valid; namely, the case where, both at the time of the assignment and subsequently, the husband had full power to reduce the property into possession. Now we shall find that here, as in the last case, his Lordship's conclusion is unsound; or at all events, was before, and has been since, judicially contradicted. For this very question was anticipated in Purdew v. Jackson, where Sir Thomas Plumer in course of the first argument asked, "Whether there was any case in which, the husband having assigned his wife's present chose in action, and having died before the assignee obtained possession of it, the assignee prevailed over the surviving wife?" The counsel on both sides (including Sir Lancelot Shadwell and Sir Edward (d) 1 Coll. 549. (e) His Honour in so ruling relied upon a case with which, he said, his own opinion agreed, namely, Ellison v. Elwyn, 13 Sim. 309; IN ACTION. where it becomes capable of such reduction after the assignment. where, both at assignment, and chose was capable the time of the afterwards, the of such reduction. ASSIGNMENT OF IN ACTION. Wife's interest beyond the coverture. Stiffe v. Everitt. Sugden) frankly owned that "they believed that such a case had not occurred." And in Hutchings v. Smith (f), where the argument of Lord Lyndhurst on this point is relied upon and set out at length, Sir L. Shadwell refused to give effect to it; although there were other grounds on which the case was decided. But in Ellison v. Elwyn (g), His Honour lays it down expressly, that whether the husband dies before the tenant for life, or whether he survives him, the property not being reduced into possession, the result must be the same; which, after all, but verifies the remark of Sir W. Grant in Mitford v. Mitford (h), that it would be "strange if a man should in any way be able to transfer to another a larger or better interest than he had in himself." And in the last case to be found on the point, Le Vasseur v. Scratton (i), Sir L. Shadwell declared that A husband could not assign his wife's present chose in action except subject to the contingency of his not reducing it into possession. He remained of the same opinion as he had expressed in Ellison v. Elwyn (k), which was substantially the same as the present case, and should decide accordingly; and if any doubt was entertained as to the propriety of his decision, the case might be taken either to the Lord Chancellor or to the House of Lords. Upon the principle of Purdew v. Jackson, neither the husband alone, nor the husband and wife together, can dispose of the wife's life interest in a fund, beyond the duration of the coverture. This point was suggested by Lord Cottenham, upon petition in Stiffe v. Everitt (1), His Lordship saying he should be glad to be furnished with any cases upon it; but unless some authority were pro (f) 9 Sim. 137. (g) 13 Sim. 309; 12 Law J. 440, (Ch.); 7 Jurist, 337. (i) 14 Sim. 116. (h) 9 Ves. 87. |