Cochran, J.,
delivered the opinion of this court.
The material facts presented by this record, in our opinion, neither support the propositions for which the appellant contended in the argument of the case, nor entitle him to the relief sought upon his petition and other proceedings thereon.
By the terms of the sale made and reported by the trustee, the credit payments for the property sold matured, respectively, on the 16th of August 1852, and on the 16th of August 1853. The account by which the distributive share of Elizabeth A. Hyde in the proceeds of the sale was ascertained and made payable, was ratified on the 16th of April 1852. The cash and first credit payments were made in accordance with the terms of sale by the appellant, as purchaser, to the trustee, and by him properly apportioned and paid over to the several persons entitled upon the account, leaving a balance of the distributive share of Elizabeth A. Hyde, of about $445.32 unpaid. The assignment, under which the appellant claims, was executed on the 2nd of July 1853. Immediately thereafter;, - and before the maturity of the appellant’s last credit payment, out of which the balance of the distributive share of Elizabeth A. Hyde was to become payable, Joshua L. Hyde, -her husband, abandoned her, and absconded:
Upon these'facts the appellant contended that- the account [267] and order of ratification, ascertaining the distributive share of Elizabeth A. Hyde, constituted a legal chose in action, which vested absolutely in her husband, and that by the assignment, operating as a conversion by the husband, the unpaid balance was transferred to the appellant free from any right on her part to an equitable application of it to her support. If the account and order constituted a legal chose in action, that vested absolutely in the husband, which—for reasons we shall presently notice—we do not admit, its assignment by him did not extinguish the liability charged by it upon the trustee, and it now stands, in the hands of the appellant, precisely as the husband held it before the assignment was executed. In no sense can it be said to have lost its distinctive character as a part of the distributive share of Elizabeth A. Hyde, nor can it be claimed in any other character or right by the appellant. If, then, the chose still exists unextinguished and unchanged—for the fact that it is payable out of indebtedness due from the appellant to the trustee, can not be, considered as enlarging the rights of the appellant—the assignment did not operate as a reduction to possession, nor even as a conversion in extinguishment of such rights of the wife, as a court of equity will recognize and enforce upon an application for aid to make such an instrument effective, but as a conversion of his interest in the chose, and a transfer of the absolute power at law, or conditional one in equity, to reduce it to possession. The authorities cited by the appellant in support of the proposition in question, relate to rights by survivorship, and are definitive only of principles by which such rights are determined. The right of a wife in equity to a present provision or settlement out of her choses in action, in restriction of the husband’s power to reduce to possession, is supported by considerations, and governed by principles, entirely distinct from those which pertain to, and control her rights by survivorship, and as the authorities referred to have no direct bearing upon the point, we deem a more extend ed notice of them unnecessary.
In regard to the other and principal part of the proposition, [268] that the account and order constituted a legal chose in action, we consider some expression of opinion at le.ast proper, if not necessary, to the disposition of this .case. The order ratifying the account and directing payment accordingly, must be construed consistently with the terms of saJLe limiting the times for payment to the trustee, of the mopey to be distributed by virtue of it. Under the circumstances we think, so far as the money in controversy is concerned, that the order imposed on the trustee an inchoate obligation, which could become complete only by the expiration of the time limited for the payment of the balance of the purchase money due from the appellant. Before that .time the trustee could have been in no default, nor could he, in that respe,ct, have been charged with any breach of the .condition of his bond, upon which an action at. law could have been maintained. These considerations, when connected, with the further fact, that a compliance with the order was made impossible by the appellant’s refusal to make the payment upon which the trustee’s duty to distribute depended, forbid the assertion of any claim at law by him, against the trustee on the chose assigned. The trustee, by a proceeding in equity or suit at law, might h.ave recovered the balance of the purchase money since it became due from the appellant, and thus have enabled himself to comply with the order, but it could have been only by the exercise of authority derived from, and subject to, jurisdiction in equity, and we think as long as a resort to an authority so derived, is made necessary to recover .the money due, it is, while thus conditioned, exclusively within that jurisdiction, and not chargeable upon the trustee as a legal chose in action, by any one claiming it un.der the order for distribution. The cases of State vs. Annan, 1 G. & J., 450, and Scott vs. State, 2 Md. Rep., 284, referred to in support of the proposition contended for by the appellant, are ,no,t in conflict whh the yiews we have expressed. In both of .them the trustees had received the funds ordered to be distributed, and a failure to comply with the respective orders to .distribute according to the ratified ac[269] counts, was charged as the ground of the actions at law instituted upon their bonds.
The remaining material proposition, that the wife by uniting in the assignment, effected a full and yalid transfer of ail her interest in the fund in question, we think also untenable, “Except in regard to the separate property of a feme covert, all her covenants, contracts and agreements, in courts of law as well as of equity, are absolutely null and void, and she is under no obligation and cannot be compelled to perform them, whether entered into by herself, or on her behalf by her husr band, with or without her consent.” Burton vs. Marshall, 4 Gill, 487. As the fund in this case was subject to the marital rights of the husband, and pot the separate property of the wife, we think her execution of the assignment does not impair her right or interest, in it.
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Cochran, J.,
delivered the opinion of this court.
The material facts presented by this record, in our opinion, neither support the propositions for which the appellant contended in the argument of the case, nor entitle him to the relief sought upon his petition and other proceedings thereon.
By the terms of the sale made and reported by the trustee, the credit payments for the property sold matured, respectively, on the 16th of August 1852, and on the 16th of August 1853. The account by which the distributive share of Elizabeth A. Hyde in the proceeds of the sale was ascertained and made payable, was ratified on the 16th of April 1852. The cash and first credit payments were made in accordance with the terms of sale by the appellant, as purchaser, to the trustee, and by him properly apportioned and paid over to the several persons entitled upon the account, leaving a balance of the distributive share of Elizabeth A. Hyde, of about $445.32 unpaid. The assignment, under which the appellant claims, was executed on the 2nd of July 1853. Immediately thereafter;, - and before the maturity of the appellant’s last credit payment, out of which the balance of the distributive share of Elizabeth A. Hyde was to become payable, Joshua L. Hyde, -her husband, abandoned her, and absconded:
Upon these'facts the appellant contended that- the account [267] and order of ratification, ascertaining the distributive share of Elizabeth A. Hyde, constituted a legal chose in action, which vested absolutely in her husband, and that by the assignment, operating as a conversion by the husband, the unpaid balance was transferred to the appellant free from any right on her part to an equitable application of it to her support. If the account and order constituted a legal chose in action, that vested absolutely in the husband, which—for reasons we shall presently notice—we do not admit, its assignment by him did not extinguish the liability charged by it upon the trustee, and it now stands, in the hands of the appellant, precisely as the husband held it before the assignment was executed. In no sense can it be said to have lost its distinctive character as a part of the distributive share of Elizabeth A. Hyde, nor can it be claimed in any other character or right by the appellant. If, then, the chose still exists unextinguished and unchanged—for the fact that it is payable out of indebtedness due from the appellant to the trustee, can not be, considered as enlarging the rights of the appellant—the assignment did not operate as a reduction to possession, nor even as a conversion in extinguishment of such rights of the wife, as a court of equity will recognize and enforce upon an application for aid to make such an instrument effective, but as a conversion of his interest in the chose, and a transfer of the absolute power at law, or conditional one in equity, to reduce it to possession. The authorities cited by the appellant in support of the proposition in question, relate to rights by survivorship, and are definitive only of principles by which such rights are determined. The right of a wife in equity to a present provision or settlement out of her choses in action, in restriction of the husband’s power to reduce to possession, is supported by considerations, and governed by principles, entirely distinct from those which pertain to, and control her rights by survivorship, and as the authorities referred to have no direct bearing upon the point, we deem a more extend ed notice of them unnecessary.
In regard to the other and principal part of the proposition, [268] that the account and order constituted a legal chose in action, we consider some expression of opinion at le.ast proper, if not necessary, to the disposition of this .case. The order ratifying the account and directing payment accordingly, must be construed consistently with the terms of saJLe limiting the times for payment to the trustee, of the mopey to be distributed by virtue of it. Under the circumstances we think, so far as the money in controversy is concerned, that the order imposed on the trustee an inchoate obligation, which could become complete only by the expiration of the time limited for the payment of the balance of the purchase money due from the appellant. Before that .time the trustee could have been in no default, nor could he, in that respe,ct, have been charged with any breach of the .condition of his bond, upon which an action at. law could have been maintained. These considerations, when connected, with the further fact, that a compliance with the order was made impossible by the appellant’s refusal to make the payment upon which the trustee’s duty to distribute depended, forbid the assertion of any claim at law by him, against the trustee on the chose assigned. The trustee, by a proceeding in equity or suit at law, might h.ave recovered the balance of the purchase money since it became due from the appellant, and thus have enabled himself to comply with the order, but it could have been only by the exercise of authority derived from, and subject to, jurisdiction in equity, and we think as long as a resort to an authority so derived, is made necessary to recover .the money due, it is, while thus conditioned, exclusively within that jurisdiction, and not chargeable upon the trustee as a legal chose in action, by any one claiming it un.der the order for distribution. The cases of State vs. Annan, 1 G. & J., 450, and Scott vs. State, 2 Md. Rep., 284, referred to in support of the proposition contended for by the appellant, are ,no,t in conflict whh the yiews we have expressed. In both of .them the trustees had received the funds ordered to be distributed, and a failure to comply with the respective orders to .distribute according to the ratified ac[269] counts, was charged as the ground of the actions at law instituted upon their bonds.
The remaining material proposition, that the wife by uniting in the assignment, effected a full and yalid transfer of ail her interest in the fund in question, we think also untenable, “Except in regard to the separate property of a feme covert, all her covenants, contracts and agreements, in courts of law as well as of equity, are absolutely null and void, and she is under no obligation and cannot be compelled to perform them, whether entered into by herself, or on her behalf by her husr band, with or without her consent.” Burton vs. Marshall, 4 Gill, 487. As the fund in this case was subject to the marital rights of the husband, and pot the separate property of the wife, we think her execution of the assignment does not impair her right or interest, in it.
Though these proceedings were instituted to effect a release of the appellant from an amount of his indebtedness to the trustee, equal to the sum claimed by him under the assignment, they mus.t in fact be considered as designed to extinguish the rights of the wife, and effect a reduction to possession of the chose .assigned, and as he has invoked the aid of a court of equity to that end, he must submit to such conditions in her favor, as, in the discretion of such ,a court, may be imposed. That a,court of equity may make ,a liberal provision for a wife out of her chases in action, under such circumstances, cannot be disputed. ¿‘Where the aid of a court of equity is necessary to enable a husband ,to obtain possession of the wife’s personal property, he must do what is equitable by making a suitable provision for her maintainance out of it,” and, “although there has been an assignment for a valuable consideration, the assignee, standing in place of the husband, and seeking to withdraw the funds, will be .compelled to make the provision. He takes the assignment subject to the wife’s equity, for he takes it with the knowledge that it is property derived from her, and knows at the time of the assignment, or is bound to know, all the equity to which it is subject. It is [270] an equity which attaches itself to the fund, and follows it in the hands of the assignee, whether with or without a valuable consideration, or whether the assignment passes by the act of the party or by operation of law.” Duvall vs. Farmers Bank of Maryland, 4 G. & J., 282.
(Decided March 14th, 1862.)
In this case the wife, by her answer and petition, prays, that the money in controversy may be applied do the maintainance of'herself and child, and the fact that she has been deserted ■by her husband, strengthens her claim, and invokes the most liberal exercise of the power of the court in her behalf. Under the circumstances we think the whole fund should be assigned for the support of herself and child, and will therefore affirm the decree .and remand the cause for further proceedings in accordance .with this opinion.
Decree affirmed and cause remanded.