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In the case of Jaques v. The Methodist Episcopal Church, as reviewed in the Court of Errors of New York, (c) it was declared,
to the moment when the alienation is attempted, a female of full age stands precisely on the same footing with a male, and equally with him may exercise all the rights of ownership, notwithstanding a clause against anticipation and against marital interference. The trust fund is at her free disposal while she is sui juris, and a court of equity only gives effect to the restriction upon her marriage, and while remaining married, against marital claims. In any other view the right of disposition is incident to property. Smith v. Starr, 3 Wharton, 62. Hamersley v. Smith, 4 Wharton, 126, S. P. The trust estate created by will for the separate use of a married woman, not only ceases when she becomes a widow, but does not revive on her subsequent marriage, Ib. Knight v. Knight, 6 Sim. 121. But see contra, post, p. 170, note. In Newton v. Reid, 4 Sim. 141, the vice-chancellor, Sir L. Shadwell went further, and held, that though the annuity be given by will, in trust for a daughter for life, not subject to the debts or control of any future husband, nor alienable by her, and intended for her support, and she marries, the restrictions were still void, and she and her husband might sell the annuity, and apply the proceeds to pay his debts, and for his use. This was carrying the new doctrine to an unreasonable extent, and it is not the law in this country. The lord chancellor, in Nedby v. Nedby, (1839,) 4 Myl. & Cr. 375, disclaimed being bound by the decision in Massey v. Parker, and he said he had difficulties in supporting it. He said further, that Newton v. Reid went beyond what anybody had ever contended for. He was for preserving trusts created for the separate use of married women, and the rule seems to be established in equity that marriage does not per se merge the rights of property to the feme sole in those of her husband. A gift or devise to her separate use, independent of her future husband, will be sustained, but not so far as to restrain her from conveying by gift or devise her property, in contemplation of marriage, to the future husband. The doctrine in this country is, that the marital claims will be defeated, if the gift by will to the daughter be to her for her sole and separate use. 1 Ired. Eq. (N. C.) 307. See the N. Y. statute, infra, p. 170, note. The latest English rule requires negative words excluding the marital right to render the payment of money into the proper hands of the wife for her own proper use, a trust for her separate use. Blacklow v. Laws, 2 Hare Ch. 49.4
(c) 17 Johns. 548.
3 Where a husband settled property to the separate use of his wife, free from the control of her husband, with the power of absolute disposition by deed or will, it was held that the settlement operated to exclude the rights of a second husband. Cole v. O'Neill, 3 Md. Ch. 174. See Robert v. West, 15 Geo. 122.
+ In 1838, in the case of Tullett v. Armstrong, 1 Beavan, 1, 32, the master of the rolls, Iord Langdale, reviewed the contradictory cases, and arrived at the following conclusions, viz:
1. If the gift be made to a woman for her sole and separate use, without more, she has, during coverture, an alienable estate, independent of her husband.
2. If the gift be made to her sole and separate use without power to alienate, she has, during the coverture, the present enjoyment of an unalienable estate.
In either case she has, while discovert, the power of alienation; the restraint is annexed to the separate estate only, and the separate estate has its existence only during coverture.
In Baggett v. Meux, 1 Phil. 627, the lord chancellor considered the case of Tullett v. Armstrong as setting the doctrine of the court.
that a feme covert, with respect to her separate property, was to be regarded in a court of equity as a feme sole, and might dispose of it without the assent and concurrence of her trustee, unless she was specially restrained by the instrument under which she acquired her separate estate. But it was held, and in that consisted the difference between the decision in chancery and the correction of it on appeal,) that though a particular mode of disposition was specifically pointed out in the instrument or deed
of settlement, it would not preclude the wife from adopting * 166 any other mode * of disposition, unless she was, by the in
strument, specially restrained, in her power of disposition, to a particular mode. The wife was, therefore, held at liberty, by that case, to dispose of her property as she pleased, though not in the mode prescribed, and to give it to her husband as well as to any other person, if her disposition of it be free, and not the result of flattery, force, or improper treatment.
This decision of the Court of Errors renders the wife more completely and absolutely a feme sole, in respect to her separate property, than the English decisions would seem to authorize; and it unfortunately withdraws from the wife those checks that were intended to preserve her more entirely from that secret and insensible, but powerful marital influence, which might be exerted unduly, and yet in a manner to baffle all inquiry and detection. (a)
The above cases will be found selected and reported in the Condensed English Chancery Reports, published at Philadelphia, by Grigg & Elliot, and which were originally edited by Mr. Peters, and are now by Mr. Ingraham. They are edited with skill and judg. ment, and contain all the English chancery cases in the late voluminous and oppressive English Reports that are applicable here, and necessary to be known. They are, therefore, most valuable, and every way well deserving the patronage of the American bar.
(a) In Morgan v. Elam, 4 Yerger (Tenn.) 375, the points discussed in Jaques v. The Methodist Episcopal Church, were examined by counsel and by the court with great research and ability, and the decision was favorable to the doctrine as declared in tho Court of Chancery in New York, in the above case. It was held, that the power of a married woman over her separate estate did not extend beyond the plain meaning of the deed creating the estate, and that she was to be considered a feme sole in relation to the estate, only so far as the deed had expressly conferred on her the power of acting as a feme sole; and that when a particular mode was pointed out for the disposition of the separate estate of a married woman, she could not dispose of it in any
See, also, In re Gaffee, 19 Law Journ. (Eng. Chy.,) before Lord Cottenham, 1850, where it is held, that the power to alienate exists only while the woman is discovert, and that on her second marriage the restriction on alienation revived.
A wife may also contract with her husband, even by parol, after marriage, for a transfer of property from him to her, or to trustees for her, provided it be for a bona fide and valuable consideration; and she may have that property limited to her separate use. (6) This was so held in the case of Livingston v. Livingston, (c) and as the wife died, in that case, after the contract had been executed on the part of the husband, and before it had been executed on the part of the wife, the infant children of the wife were directed to convey, as infant trustees, by their guardian, the lands which their mother, by agreement with her husband, had contracted to sell.
A wife may, also, sell or mortgage her separate property * for her husband's debts, and she may create a valid power in the mortgage to sell in default of payment. (a) She
principle is recognized and established in Ewing v. Smith, 3 Desaus. (S. C.) 417, in Lan. caster v. Dolan, 1 Rawle, 231, and in Thomas v. Folwell, 2 Wharton, 11. In Whitaker v. Blair, in the Court of Appeals in Kentucky, 3 J.J. Mar. 236, the decision in the case of Jaques, in Chancery, was considered as carrying the greater force of reason and principle with it; but the court held, in Johnson v. Yates, 9 Dana, 500, and in Shipp v. Bowmar, 5 B. Mon. 163, that a feme covert, to whose separate use lands have been conveyed to trustees, might, with her husband, and on her private examination, and by deed duly recorded, convey all her interest therein, without any power for that purpose, though I apprehend not against restrictive words. We may perhaps venture to consider the doctrine in Jaques v. The Methodist Episcopal Church, declared in the Court of Chancery of New York, as the better doctrine.1
(6) Lady Arundell v. Phipps, 10 Vesey, 139, 145. Bullard v. Briggs, 7 Pick. 533. Garlick v. Strong, 3 Paige, 440. But as against creditors existing at the time, postnuptial agreements will not be permitted to stand beyond the value of the consideration. Ibid.
(c) 2 Johns. Ch. 537. (a) The general rule is, that if the wife joins her husband in a mortgage of her estate
· This doctrine is approved in Maryland. Miller v. Williamson, 5 Maryl. 219. Tarr v. Williams, 4 Maryl. Ch. 68. Williams v. Donaldson, Id. 414. Cooke v. Husbands, 11 Maryl. 492. In Tennessee; Marshall o. Stephens, 8 Humph. 159. Litton v. Baldwin, Id. 209. In South Carolina; Nix v. Bradley, 6 Rich. Eq. 53. Adams v. Mackey, Id. 75. In Georgia; Wylly o. Collins, 9 Geo. 233. In Mississippi; Doty v. Mitchell, 9 Sm. & M. 435. In Rhode Island; Metcalf v. Cook, 2 R. I. 355. And in Florida; Maiben v. Bebo, 6 Florida, 381. But see contra in Connecticut; Imlay v. Huntington, 20 Conn. 146, 175. In Alabama; Bradford v. Greenway, 17 Ala. 797. In North Carolina; Harris v. Harris, 7 Ired. Eq. (N. C.) 111. In Illinois; Swift v. Castle, 23 Ill. 209. And in Virginia; Hume v. Hord, 5 Gratt. 374. As to the power of married women in New York, over their separate estates, under the Revised Statutes, see ante, 156, n. (1), and post, p. 767, note a.
1 Vartie . Underwood, 18 Barb. (N. Y.) 561. So she may covenant that scire facias may issue npon default of payment. Black v. Galway, 24 Penn. 18. And see Wilson v. McCullough, 19 Penn. 77. Miner v. Graham, 24 Penn. 491.
can convey upon condition, and she may prescribe the terms. (6) It was long since held, even at law, in the case of Wotton v. Hele, (c) that the husband and wife might grant land belonging to the wife, by fine, with covenant of warranty, and that if the grantee should be evicted by a paramount title, covenant would lie after the husband's death, against the wife upon the warranty.
, This is a very strong case to show that the wife may deal with her land by fine as if she were a feme sole; and what she can do by fine in England, she may do here by any legal form of conveyance, provided she execute under a due examination. The case states that the court of K. B. did not make any scruple in maintaining that the action of covenant was good against the wife on her warranty contained in her executed fine, though she was a feme covert when she entered into the warranty. It is also declared in the old books, (d) that if the husband and wife make a lease for years of the wife's land, and she accepts rent after his death, she is liable on the covenants in the lease; for, by the acceptance of the rent, she affirms the lease, though she was at liberty, after her husband's death, if she had so chosen, to disaffirm it. (e)
(3.) Protection against her covenants. This doctrine, that the wife can be held bound to answer in
damages after her husband's death, on her covenant of 168
warranty, entered into during coverture, is not considered by the courts in this country to be law; and it is cer
for his benefit, the mortgage, as between the husband and wife, will be considered the debt of the husband, and after his death the wife, or her representatives, will be entitled to stand in the place of the mortgagee, and have the mortgage satisfied out of the husband's assets. Lord Thurlow, in Clinton v. Hooper, 1 Vesey Jr., 186.3
(b) Demarest v. Wynkoop, 3 Johns. Ch. 129. Pybus v. Smith, 1 Vesey Jr., 189. Essex v. Atkins, 14 Id. 542.
(c) 2 Saund. 177. 1 Mod. 290, S. C.
: A wife, appropriating her own separate property to her husband's use, cannot charge his assets with it. Edelen v. Edelen, 11 Md. 415.
3 Where the trustees of a marriage settlement were required to pay money to the husband, taking his bond as security, upon the order of the wife. it was held, that after the husband became insolvent, the trustees were justified in refusing such payment. Boss v. Godsall, 1 You. & Coll. Ch. Cas. 617.
tainly contrary to the settled principle of the common law, that the wife was incapable of binding herself by contract. In the Supreme Court of Massachusetts, (a) it has been repeatedly held, that a wife was not liable on the covenants in her deed, further than they might operate by way of estoppel; and though the question in these cases arose while the wife was still married, yet the objection went to destroy altogether the effect of the covenant. So, also, in Jackson v. Vanderheyden, (6) it was declared that the wife could not bind herself personally by a covenant, and that a covenant of warranty, inserted in her deed, would not even estop her from asserting a subsequently acquired interest in the same lands.
Though a wife may convey her estate by deed, she will not be bound by a covenant or agreement to levy a fine or convey her estate. The agreement by a feme covert, with the assent of her husband, for a sale of her real estate, is absolutely void at law, and the courts of equity never enforce such a contract against her. (c) In the execution of a fine or other conveyance, the wife
(a) Fowler v. Shearer, 7 Mass. 21. Colcord v. Swan, Ibid. 291.
(6) 17 Johns. 167. Martin v. Dwelly, 6 Wendell, 1, S. P. This last point, as to estoppel, is contrary to the cases of Hill v. West, 8 Ohio, 225. Colcord v. Swan, 7 Mass. 291. Ibid. 21. 4 Bibb (Ken.) 436.
(c) Butler v. Buckingham, 5 Day, 492. See, also, Watrous v. Chalker, 7 Conn. 224, S. P. In Baker v. Child, 2 Vern. 61, it was stated, as by the court, that where a feme covert agreed with her husband to levy a fine, and he died before it was done, the court would compel the wife to perform the agreement. But this case was said, in Thayer v. Gould, 1 Atk. 617, to have been falsely reported, and that there was no such decree ; and the master of the rolls, in Ambler, 498, spoke of it as a loose note. It is not law. Sed quæ. In the case of Stead v. Nelson, 2 Beavan, 245, a wife having an estate for life, for her separate use, in lands, with an absolute power over the reversion, joined her husband in an agreement to execute a mortgage ;-held, that such agreement was binding, on the wife's surviving.
1 Watkins v. Halstead, 2 Sandf. (N. Y.) 311. In this case it was held, that a promise by a woman, after her divorce, to pay for goods furnished her during coverture, was not binding in law, for want of consideration.
A contingent remainder cannot be conveyed, until the contingency happen, except by estoppel, and therefore cannot be conveyed (under the New Jersey statute) by a married woman. Den o. Demarest, 1 N. J. 525.
In New Jersey, by a late statute, (Laws, 1857, c. 189,) any married woman of full age, who joins with her husband in the execution of a deed, may enter into covenants for title, of warranty, or against incumbrances; and such covenants shall have the same force and effect as if she were sole,
* Lowell v. Daniels, 2 Gray, 161. Dominick v. Michael, 4 Sandf. (N. Y.) 374. The rule is the