.US f2J (![nrnell IGaui ^rljnol SJlbrarg Cornsll University Library KF 509.F23 Cases on the law of husband and wife, 3 1924 018 806 897 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018806897 C A S E;S ON THE LAW OF HUSBAND AND WIFE ALBERT J. F.ARRAH, LL.B., DEAN OF THE LAW DEPARTMENT OP THE JOHN B. STETSON UNIVERSITY, DELAND, FLORIDA. JOHN W. DWYER, LL.M., AUTHOR OF CASES ON PRIVATE INTERNATIONAL LAW, AND INSTRUCTOR OF LAW IN THE DEPARTMENT OF LAW OF THE UNIVERSITY OF MICHIGAN. ANN ARBOR, MICH.i George Wahr, Publisher and BooksSLLER. 1900.' Copyrighted by George Wahr. 1900. THE INLAND PREGB, ANN ARBOR, MiOH. PREFACE. ■ These cases have been selected, primarily, to be used in con- nection with the course of lectures on the Law of Husband and Wife, given by Professor Otto Kirchner in the Law Department of the University of Michigan. It is believed that they will be found equally useful in connection with a text-book, or if desired, they may be made the basis of instruction, without the use of either lec- tures or text-book. A. J. F. Ann Arbor, Michigan, J. W. D. September ii, 1900. CONTENTS. I. NATURE OF THE RELATION— Maynard v. Hill 13 n. ESSENTIALS OF MARRIAGE— 1. Relationship. Elliott V. Gurr 28 2. Civil Condition. Howard v. Howard 30 Earl V. Godley 34 3. Mental Capacity. Cole V. Cole 36 Wightman v. Wightman 40 Prine v. Prine 46 4. Physical Capacity. Dean v. Aviling 55 5. Infancy. Koonce v. Wallace 59 6; Prior Marriage. Teter v. Teter 62 7. Force, Fraud and Error. Schwartz v. Schwartz 69 Carris v. Carris 78 Sissung V. Sissung 86 8. Cei-Ebration. Dennison v. Dennison 92 Hutchins v. Kimmell '. loi Peet V. Peet 106 III. PROMISE TO MARRY— Horaan v. Earle 109 Blackburn v. Mann 118 6 CONTENTS IV. EFFECT OF MARRIAGE— 1. Person of the Spouse. a. Theoretic Unity. Wells V. Caywood 122 Bertles v. Nunan •. . . 129 b. Matrimonial Domicil. « Hair v. Hair 138 c. Right of One Spouse to Society of Other. Bennett v. Smith 145 Warren v. Warren IS3 d. Spouse as a Criminal. The State v. MaFoo 156 2. Wife's Debts and Contracts, Alley V. Winn 163 ''''Skinner v. Tirrell 167 Leuppie v. Osborn 170 McCutcheon v. M'Gahay 174 Keller v. Philips 176 Watkins v. De Armond 181 Commonwealth v. Graham 183 3. Effect of Death on Wife's Debts. Morrow v. Whitesides ''. 186 Cole V. Shurtleff 187 4. Wife's Injuries and Frauds. a. Torts Committed by Wife. Marshall v. Oakes ipi b. Torts upon Wife. Berger v. Jacobs 195 ' 5. Wife's Property. a. Personal Property in Possession. Carleton v. Lovejoy 197 b. Personal Property in Action. Tritt's Adm. v. Colwell's Adm'r igg f. Wife's Equity. Kenny v. Udall 205 d. Chattels Real. Shaw V. Partridge . . .■ 216 e. Real Estate. Breeding v. Davis 221 CONTENTS. 7 V. MARRIAGE MODIFIED— 1. By Equity. Jaques v. M. E. Church 228 2. By Married Women's Acts. Burdeno v. Amperse ■ 252 Tong V. Marvin 258 De Vries v. Conklin 266 Emery v. Lord 268 Jenne v. Marble 270 Martin v. Robson 275 VI. WIFE'S SEPARATE ESTATE IN EQUITY— I. How Created. Buck V. Wroten 283 VII. WIFE'S SEPARATE EARNINGS AND POWER TO TRADE— 1. At Common Law. Skillman v. Skillman : 287 2. Under Statutes. Hawkins v. P. & W. Ry 289 VIII. ANTE-NUPTIAL SETTLEMENTS— Henry v. Henry 292 IX. POST NUPTIAL SETTLEMENTS— Putnam v. Bicknell 298 X. RIGHTS AND LIABILITIES OF SURVIVING HUSBAND— 1. Right of Administration. Judge, Etc. V. Chamberlain 301 2. Curtesy. Ferguson v. Tweedy 302 XL RIGHTS AND LIABILITIES OF SURVIVING WIFE— 1. Wife's Paraphernalia. Rawson v. Penn. Ry. Co 307 2. Dower. a. Defined, Gray and Wife v. McCune 310 CONTENTS. b. Requisites Jones V. Jones 315 Null V. Howell 320 Houston V. Smith 323 Mann v. Edson 325 Eldredge v. Forrestal 320 Woolridge v. Lucas 327 c. ' Nature of the Estate. Johnson v. Shields 331 McCIenahan v. Porter 334 Shearer v. Ranger 34i d. What Law Governs Dower. Duncan v. Dick 343 Davis V. O'Ferrall 347 ' e. To What Estates Dower Attaches. Summers v. Babb ; 349 Stanwood v. Dunning 352 King V. King 356 Goodwill V. Goodwin 359 Swaine v- Ferine 364 f. Remainder and Reversion. Dunham v. Osborn 373 g. Joint Tenancy. Babbitt v. Day ?•. . .' 375 h. Estates in Common. Holley V. Glover 376 t. Mines. Seager v. McCabe .^ 390 ;'. Eminent Domain. Moore v. Mayer, Etc 398 ' k. Exchange. Cass V. Thompson 400 /. Wild Lands. Campbell, Appellant 402 m. Mortgage. Cox V. Garst 4og ». Partnership. Dyer v. Clark 411 CONTENTS. 9 o. Contracts. Pritts V. Ritchey 4ig p. Pre-Emption Claims. Wells V. Moore 423 q. Trust Estates. Hamlin v. Hamlin 426 r. Dower Barred. Robie V. Flanders 429 i. Dower Assigned. French v. Peters 432 3. Homestead. Thomas v. Thomas 438 XII. DIVORCE— 1. Jurisdiction. Hood V. The State 443 2. Causes. a. Adultery. Nichols V. Nichols 452 b. Cruelty and Desertion. Warner v. Warner 454 3. Effects. Wheeler v. Hotchkiss 457 Hunt V. Thompson 460 Hopson V. Fowlkes 464 4. Defenses. a. Connivance. Robbins v. Robbins 469 b. CoUusibn. Hopkins v. Hopkins 472 c. Condonation. Sullivan v. Sullivan 470 d. Recrimination. Pease y. Pease 478 CASES REPORTED. Alley V. Winn 134 Mass. ']^ 163 Babbitt V. Day 41 N. J. Eq. 392 37S Bennett v. Smith 21 Barb. 439 I45 Berger v. Jacobs 21 Mich. 215 I95 Bertles v. Nunan 92 N. Y. 152 129 Blackburn V. Mann 85 111. 222 118 Breeding v. Davis 77 Va. 639 221 Buck V. Wroten 24 Gratt. (Va.) 250 283 Burdeno v. Amperse 14 Mich. 90 252 Campbell, Appellant 2 Doug. (Mich.) 141 402 Carleton. v. Lovejoy 54 Me 445 197 Carris v. Carris 9 C. E. Green 516 .' 78 Cass V. Thompson i N. H. 65 400 Cole V. Cole 5 Sneed (Tenn.) 57 36 Cole V. Shurtleff 41 Vt. 311 187 Commonwealth v. Graham 157 Mass. 73 183 Cox V. Garst 105 111. 342 408 Davis V. O'Ferrall 4 Iowa 168 347 Dean v. Aviling I Rob. Ecc. Rep 279 55 Dennison v. Dennison 35 Md. 361 92 DeVries v. Conklin 22 Mich. 255 266 Duncan v. Dick i Walker's Rep. (Miss.) 281 343 Dunham v. Osborn i Paige's Chan. 634 373 Dyer v. Clark 5 Metcalf (Mass.) 562 41 1 Earl v. Godley 42 Minn. 361 34 Eldredge v. Forrestal 7 Mass. 253 326 Elliott v. Gurr 2 Phillimore 16 23 Emery v. Lord , 26 Mich. 431 268 Ferguson v. Tweedy 43 N. Y. 543 302 French v. Peters 33 Me. 396 432 Goodwin v. Goodwin 33 Conn. 314 359 Gray and Wife v. McCune 23 Pa. St. 447 310 Hair V. Hair 10 Rich. Eq. 163 138 Hamlin v. Hamlin ig Me. 141 426 Hawkins v. P. & W. Ry 119 Mass. 596 289 CASES REPORTED. 11 Henry v. Henry 27 Ohio St. 121 292 Holley V. Glover 36 S. C. 404 376 Homan v. Earle 53 N. Y. 267 109 Hood V. The State 56 Ind. 263 443 Hopkins v. Hopkins 39 Wis. 167 472 Hopson V. Fowlkes 92 Tenn. 697 1 464 Houston V. Smith 88 N, C. 312 323 Howard V. Howard 5 Jones Law (N. C.) 235 30. Hunt V. Thompson 61 Mo. 148 460 Hutchins v. Kimmell 31 Mich. 126 loi Jaques v. M. E. church 17 Johns. 549 228 Jenne v. Marble 37 Mich. 319 270 Johnson v. Shields 32 Me. 424 331 Jones V. Jones 28 Ark. 19 315 Judge, EtC; V. Chamberlain 3 N. H. 129 301 Keller v. Philips 39 N. Y; 351 176 Kenny v. Udall 5 Johns. Chans. 464 205 King V. King '. 61 Ala 479 ' 356 Koonce v. Wallace 7 Jones Law (N. C.) 194 59 Leuppie v. Osborn 52 N. Y. Eq. 637 170 Mann v. Edson 39 Me. 25 325 Marshall v.Oakes 51 Me. 308 191 Martin v. Robson 65 111. 129 275 Maynard v. Hill 125 U. S. 190 13 MeClenahan v. Porter 10 Mo. 746 334 McCutcheon v. McGahey 11 Johnson (N. Y.) 281 174 Moore v. Mayor 8 N. Y. no 398 Morrow v. Whitesides 10 B. Monroe 41 1 186 Nichols V. Nichols 31 Vt. 328 452 Null V. Howell Ill Mo. 273 320 Pease V. Pease 72 Wis. 136 478 Peet V. Peet ' 52 Mich. 464 '. 106 Prine v. Prine 36 Fla. 676 46 Pritts V. Ritchey 29 Pa. St. 71 419 Putnam v. Bicknell 18 Wis. 351 298 Rawson v. Penn. R. R. Co 48 N. Y. 212 307 Robbins v. Robbins 1 40 Mass. 528 469 Robie V. Flanders 33 N. H. 524 429 Schwartz V. Schwartz 29 111. App. 516 69 Seager v. McCabe 92 Mich. 186 390 Shaw V. Partridge 17 Vt. 626 216 Shearer v. Ranger 22 Pick. 447 341 Sissung V. Sissung 65 Mich. 168 '. . 85 12 CASJjIS REPORTED. Skillman V. Skillman — 15 N.J. Eq. 478 ,•-■ 287 Skinner v. Tirrell. 159 Mass. 474 167 Stanwood v. Dunning 14 Me. zgo 352 Sullivan v. Sullivan 34 Ind. 368 476 Summers v. Babb 13 111. 483 349 Swaine v. Ferine — . S Johns. Chans. 482 364 Teter v. Teter loi Ind. 129 62 The State v. MaFoo no Mo. 7 > 156 Thomas v. Thomas 73 Iowa 657 .' 438 Tong V. Marvin 15 Mich. 60 ■ 258 Tritt v. Col well's Adm 31 Pa. St. 228 199 . Warner v. Warner 54 Mich. 492 4S4 Warren v. Warren 89 Mich. 123 152 Watkins v. De Armond ^'. 89 Ind. 553 181 Wells V. Caywood :.. 3 Col. 487 122 Wells V. Moore 16 Mo. 478 423 Wheeler v Kotchkiss lo Conn. 225 457 Wightman v. Wightman , 4 John. Chan. 343 40 Woolridge V. Lucas .-. 7 B. Monroe (Ky.) 49 327 GASR8 ON THE LAW OF HUSBAND AND WIFE I, NATURE OF THE RELATION. MAYNARD v. HILL, 125 U. S. 190. (1888). The case, as stated by the court, was as follows : This is a suit in equity to charge the defendants, as trustees of certain lands in King County, Washington Territory, and compel a conveyance thereof to the plaintiffs. The lands are described as lots 9, 10, 13 and 14, of section 4; and lots 6, 7, 8 and 9, of section 5, in towiiship 24 north, range 4 east, Willamette meridian. The case comes here on appeal from a judgment of the Supreme Court of the Territory, sustaining the defendants' demurrer, and dismissing the complaint. The material facts, as disclosed by the complaint, are briefly these: In 1828 David S. Maynard and Lydia A. Maynard intermarried in the State of Vermont, and lived there together as husband and wife until 1850, when they removed to Ohio. The plaintiffs, Henry C, Maynard and Frances J. Patterson, are their children, and the only issue of the marriage. David S. Maynard died intestate in the year 1873, and Lydia A. Maynard in the year 1879. In 1850 the husband left his iamily in Ohio and started overland for California, under a promise to his wife that he would either return or send for her and the children within two years, and that in the meantime he would send her the means of support. He left her without such means, and never afterwards contributed anything for her support or that of the. children. On the i6th of September following he took up his resi- dence in the Territory of Oregon, in that part which is now Wash- ington Territory, and continued ever afterwards to reside there. On the 3d of April, 1852, he settled upon and claimed, as a mar- ried man, a tract of land of 640 acres, described in the bill, under the act of Congress of September 27, 1850, "creating the ofifice of surveyor general of public lands in Oregon, and to provide for 14 LAW OF HUSBAND AND WIFE. thei survey, and to make donations to settlers of the said public lands," and resided thereon until his death. On the 22d day of December, 1852, an act was passed by the Legislative Assembly of the Territory, purporting to dissolve the bonds of matrimony between him and his wife. The act is in these words : "An act to provide for the dissolution of the bonds of matrimony heretofore existing between D. S. Maynard and Lydia A. Maynard, his'wife. Sec. I. Be it enacted by the Legfislative Assembly of the Ter- ritory of Oregon, That the bonds of matrimony heretofore exist- ing between D. S. Maynard and Lydia A. Maynard be, and the same are, hereby dissolved. "Passed the House of Representatives Dec. 22d, 1852. "B. F. Harding, "Speaker of the House of Representatives. "Passed the Council Dec. 22d, 1852. "M. P. Deady, "President Council." The complaint alleges that no cause existed at anytime for this divorce; that no notice was given to the wife of any application by the husband for a divorce, or of the introduction or pendency of the bill for that act in the Legislative Assembly ; that she had no knowledge of the passage of the act until July, 1853; that at the time she was not within the limits or an inhabitant of Oregon ; that s-he never became a resident af either the Territory or State of Oregon ; and that she never in any manner acquiesced in or consented to the act ; and the plaintiffs insist that the Legislative Assembly had no authority to pass the act ; that the same is abso- lutely void ; and that the parties were never lawfully divorced. On or about the 15th of January, 1853, the husband thus di- vorced intermarried with one Catherine T. Brashears, and there- after they lived together as husband and wife until his death. On the 7th of November, 1853, he filed with the Surveyor General of Oregon the certificate required under the donation act of Sep- tember 27, 1850, as amended by the act of the 14th of February, 1853, accompanied with an affidavit of his residence in Oregon from the i6th of September, 1850, and on the land claimed from April 3, 1852, and that he was married to Lydia A. Maynard until the 24th of December, 1852, having been married to her in Ver- mont in August, 1828. The notification was also accompanied with corroborative affidavits of two other parties that he had with- NATURE OF THE RELATION. 15 in their knowledge resided upon and cultivated the land from the 3d of April, 1852. On the 30th of April, 1856, he made proof before the register and receiver of the land office of the Territory of his residence upon and cultivation of his claim for four years from April 3, 1852, to and including April 3, 1856. Those officers accordingly, m May following, issued to him, and to Catherine T. Maynard, his second wife, a certificate for the donation claim, apportioning the west half to him and the east half to her. This certificate was afterwards an- nulled by the Commissioner of the General Land Office, on the ground that, as it then appeared, and was supposed to be the fact, Lydia A. Maynard, the first wife, was dead, and that her heirs were therefore entitled to half of the claim. On a subsequent hearing before the register and receiver, the first wife appeared, and they awarded the east half of the claim to her and the west half to the husband. From this decision an appeal was taken to the Commissioner of the General Land Office, and from the decision of that officer to the Secretary of the In- terior. The Commissioner affirmed the decision of the register and receiver so far as it awarded the west half to the husband, but reversed the decision so far as it awarded the east half to the first wife ; holding that neither wife was entitled to that half. He ac- cordingly directed the certificate as to the east half to be cancelled. The Secretary affirmed the decision of the Commissioner, holding that the husband had fully complied with all the requirements of the law relating to settlement and cultivation, and was there- fore entitled to the west half awarded to him, for which a patent was accordingly issued. But the Secretary also held that, at the tirne of the alleged divorce, the husband possessed only an in- choate interest in the lands, and whether it should ever become a vested interest depended upon his future compliance with the conditions prescribed by the statute; that his first wife accordingly possessed no vested interest in the property. He also held that the second wife was not entitled to any portion of the claim, because she was not his wife on the first day of December, 1850, or within cne year from that date, which was necessary, to entitle her to one-half of the claim under the statute; and the plaintiffs insist that the decision of the Commissioner and Secretary in this par- ticular is erroneous, and founded upon a misapprehension of the law. Subsequently the east half of the claim was treated as public land, and was surveyed and platted as such under the direction of the Commissioner of the General Land Office. The defendants 16 LAW OF HUSBAND AND WIFE. Hill and Lewis, with full knowledge, as the bill alleges, of the rights of the first wife, located certain land scrip, known as Por- terfield land scrip, upon certain portions of the land, and patents of the United States were issued to them accordingly, and they are applicants for the remaining portion. The complaint alleges that the other defendant, Flagg, claims some interest in the prep- erty, but the nature and extent thereof are not stated. Upon these facts the plaintiffs claim that they are the equitable owners of the lands patented to the defendants Hill and Lewis, and that the defendants are equitably trustees of the legal title for them. They therefore pray that the defendants may be ad- judged to be such trustees, and directed to convey the lands to them by a good and sufficient deed ; and for such other and fur- ther relief in the premises as to the court shall seem meet and equitable. To this complaint the defendants demurred on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and gave judgment thereon in favor of the defendants. On appeal the Supreme Court of the Terri- tory came to the same conclusion : that the complaint did not state a sufficient cause of action ; that no grounds in relief in equity ap- peared upon it ; a^d that the defendants' demurrer should be sus- tained. Judgment was accordingly entered that the complaint be dismissed. To review this judgment the case is brought to this court. Mr. C. H. Hanford for appellants. Mr. Henry Beard was with him on the brief. Mr. Walter H. Smith for appellee. Mr. Justice Field, after stating the case, delivered the opin- ion of the court. As seen by the statement of the case, two questions are pre- sented for our consideration : first, was the act of the Legislative Assembly of the Territory of Oregon of the 22d of December, 1852, declaring the bonds of matrimony between David S. May- nard and his wife dissolved, valid and effectual to divorce the par- ties ; and, second, if valid and effuctual for that purpose, did such divorce defeat any rights of the wife to a portion of the donation claim. The act of Congress creating the Territory of Oregon, and es- tablishing a government for it, passed on the 14th of August, 1848, vested the legislative power and authority of the Territory in an Assembly, consisting of two boards, a Council and a House of Representatives. 9 Stat. 323, c 177, § 4. It declared, § 6, that NATURE OF THE RELATION. 17 the legislative power of the Territory should "extend to all right- ful subjects of legislation not inconsistent with the Constitution and laws of the United States," but that no law should be passed interfering with the primary disposal of the soil; that no tax should be imposed upon the property of the United States ; that the property of non-residents should not be taxed higher than the property of residents ; and that all the laws passed by the Assem- bly should be submitted to Congress, and if disapproved should be null and of no effect. It also contained various provisions against the creation of institutions for banking purposes, or with authority to put into circvilation notes or bills, and against pledg- ing the faith of the people of the Territory to any loan. These exceptions from the grant of legislative power have no bearing upon the questions presented'. The grant is made in terms similar to those used in the act of 1836, under which the Territory of Wis- consin was organized. It is stated in Clinton v. Englebrecht, 13 Wall. 434, 444, that that act seemed to have received full considT eration; and from it all subsequent acts for the organization of territories have been copied, with few and inconsiderable vari- ations. There were in the Kansas and Nebraska acts, as there mentioned, provisions relating to slavery, and in some other acts provisions growing out of local circumstances. With these, and perhaps other exceptions not material to the questions before us, the grant of legislative power in all the acts organizing territories, since that of Wisconsin, was expressed in similar lan- guage. The power was extended "to all rightful subjects of leg- islation," to which was added in some of the acts, as in the act organizing the Territory of Oregon, "not inconsistent with the Consitution and laws of the United States,", a condition neces- sarily, existing in the absence of express declaration to that effect. What were "rightful subjects of legislation" when these acts organizing the Territories were passed, is not to be settled by reference to the distinctions usually made between legislative acts and such as are judicial or "administrative in their character, bufr by an examination of the subjects upon which legislatures had been in the practice of acting with the consent and approval of the people they represented. A long acquiescence in repeated acts of legislation on particular matters, is evidence that those matters have been generally considered by the people as properly within legislative control. Such acts are not to be set aside or treated as invalid, because upon a careful consideration of their character doubts may arise as to the competency of the legislature to pass them. Rights acquired, or obligations incurred Under such leg- 18 LXSN OP HUSBAND AND WIFE. islation, are not to be impaired because of subsequent differences of opinion as to the department of government to which the acts are properly assignable. With special force does this observa- tion apply, when the validity of acts dissolving the bonds of mat- rimony is assailed, the legitimacy of many children, the peace of many families, and the settlement of many estates depending upon its being sustained. It will be found from the history of legisla- tion that, whilst a general separation has been observed between the different departments, so that no clear encroachment by one upon the province of the other has been sustained, the legislative department, when not restrained by constitutional provisions and a regard for certain fundamental rights of the citizen which are recognized in this country as the basis of all government, has acted upon everything within the range of civil government. Loan Association v. Topeka, 20 Wall. 655, 663. Every subject of in- terest to the community has come under its direction. It has not merely prescribed rules for future conduct, but has legalized past acts, corrected defects in proceedings, and determined the status, conditions, and relations of parties in the future. Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to consti- tute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution. It is conceded that to determine the propriety of dissolving the marriage relation may involve investigations of a judicial na- ture which can properly be conducted by the judicial tribunals. Yet such investigations are no more than those usually made when a change of the law is designed. They do not render the enact- ment, which follows the information obtained, void as a judicial act because it may recite the cause of its passage. Many causes may arise, physical, moral, and intellectual — such as the contract- ing by one of the parties of an incurable disease like leprosy, or confirmed insanity or hopeless idiocy, or a conviction of a felony — - which will render the continuance of the marriage relation intol- erable to the other party and productive of no possible benefit to society. When the object of the relation has been thus defeated, and no jurisdiction is vested in the judicial tribunals to grant a divorce, it is not perceived that any principle should prevent the legislature itself from interfering and putting an "nd to the rela- NATURE OF THE RELATION. 19 tion in the interest of the parties as well as of society. If the act declaring the divorce should attempt to interfere with rights of property vested in either party, a different question would be pre- sented. When this country was settled, the power to grant a divorce from the bonds of matrimony was exercised by the Parliament of England. The ecclesiastical courts of that country were lim- ited to the granting of divorces from bed and board. Naturally, the legislative assemblies of the colonies followed the example of Parliament and treated the subject as one within their province. And until a recent period legislative divorces have been granted, with few exceptions, in all the States. Says Bishop, in his Trea- tise on Marriage and Divorce : "The fact that at the time of the settlement of this country legislative divorces were common, com- petent, and valid in England, whence our jurisprudence was de- rived, makes them conclusively so here, except where an invalid- ity is directly or indirectly created by a written constitution bind- ing the legislative power." § 664. Says Cooley, in his Treatise on Constitutional Limitations : "The granting of divorces from the bonds of matrimony was not confided to the courts in Eng- land, and from the earliest days the colonial and state legislatures in this country have assumed to possess the same power over the subject which was possessed by the Parliament, and from time to time they have passed special laws declaring a dissolution of the bonds of matrimony in special cases." p. no. Says Kent, in his Commentaries: "During the period of our coloniar gov- ernment, for more than one hunder years preceding the Revolu- tion,, no divorce took place in the colony of New York, and for many years after New York became an independent state there was not any lawful mode of dissolving a marriage in the lifetime of the parties but bj' a special act of the legislature." 2 Kent Com. 97. The same fact is stated in numerous decisions of the highest courts of the States. Thus, in Cronise v. Cronise, 54 Penn. St. 255, 261, the Supreme Court of Pennsylvania said: "Special divorce laws are legislative acts. This power has been exercised from the earliest period by the legislature of the prov- ince, and by that of the State, under the constitutions of 1776 and 1790. . . . The continued exercise of the power, after the adoption of the constitution of 1790, cannot be accounted for except on the ground that all men, learned and unlearned, be- lieved it to be a legitimate exercise of the legislative power. This belief is further strengthened by the fact that no judicial decision lias been made against it. Communis error facit jus would be 20 LAW OF HUSBAND AND WIFE. sufficient to support it, but it stands upon the higher ground of contemporaneous and continued construction of the people of their own instrument." In Crane v. Meginnis, i G. and ]. 463,474, the Supreme Court of Maryland said : "Divorces in this State from the earliest times have emanated from the General Assembly, and can now be viewed in no other light than as regular exertions of the legisla- tive power." In Stone v. Pease, 8 Conn. 541, decided in 183 1, the question arose before the Supreme Court of Connecticut as to the validity of a legislative divorce under the constitution of 1818, which pro- vided for an entire separation of the legislative and judicial de- partments. The court, after stating that there had been a law in force in that State on the subject of divorces, passed 130 years before, which provided for divorces on four grounds, said, speak- ing by Mr. Justice Daggett : "The law has remained in sub- stance the same as it was when enacted in 1667. During all this period the legislature has interfered like the Parliament of Great Britain, and passed special acts of divorce a vinculo matrimonii; and at almost every session since the Constitution of the United States went into operation, now forty-two years, and for thirteen years of the existence of the constitution of Connecticut, such acts have been, in multiplied cases, passed and sanctioned by the constituted authorities of our State. We are not at liberty to mquire into the wisdom of our existing law on this subject; nor into the expediency of such frequent interference by the legisla- ture. We can only inquire into the constitutionality of the act under consideration. The power is not prohibited either by the Constitution of the United States or by that of the State. In view of the appalling consequences of declaring the general law of the State or the repeated acts of our legislature unconstitutional and void — consequences easily conceived but not easily expressed, such as bastardizing the issue and subjecting the parties to punishment for adultery — the court should come to the result only on a solemn conviction that their oaths of office and these constitutions im- periously demand it. Feeling myself no such conviction, I can- not pronounce the act void." It is to be observed that the divorce in this case was granted on the petition of the wife, who alleged certain criminal intimacies of her husband with others, and the act of the legislature recited that her allegation, after hearing her and her husband, with their witnesses and counsel, was found to be true. The inquiry appears to have been conducted with the formality of a judicial proceeding, and might undoubtedly have NATURE OF THE RELATION. 21 been properly referred to the judicial tribunals; yet the Supreme Court of the State did not regard the divorce as beyond the com- petency of the legislature. The same doctrine is declared in numerous other cases, and positions similar to those taken against the validity of the act of the Legislative Assembly of the Territory, that it was beyound the competency of a legislature to dissolve the bonds of matri- mony, have been held untenable. These decisions justify the con- clusion that the division of governrnent into three departments, and the implied inhibition through that cause upon the legislative department to exercise judicial functions was neither intended nor understood to exclude legislative control over the marriage rela- tion. In most of the states the same legislative practice on the subject has prevailed since the adoption of their constitutions as before, which, as Mr. Bishop observes, may be regarded as a con- temporaneous construction that the power thus exercised for many years was rightly exercised. The adoption of late years in many constitutions of provisions prohibiting legislative divorces would also indicate a general conviction that without this prohibition such divorces might be granted, notwithstanding the separation of the powers of government into departments by which judicial functions are excluded from the legislative department. There are, it is true, decisions of State courts of high character, like the Supreme Court of Massachusetts and of Missouri, holding differ- ently; some of which were controlled by the peculiar language of their state constitutions. Sparhawk v. Sparhawk, 1 16 Mass. 315 ; State v. Fry, 4 Missouri, 120, 138. The weight of authority, however, is decidedly in favor of the position that, in the absence of direct prohibition, the power over divorces remains with the legislature. We are, therefore, justified in holding — more, we are compelled to hold, that the granting of divorces was a right- ful subject of legislation according to the prevailing judicial opin- ion of the country, and the understanding of the profession, at the lime the organic act of Oregon was passed by'Congress, when cither of the parties divorced was at the time a resident within the territorial jurisdiction of the legislature. If within the competency of the Legislative Assembly of the Territory, we cannot inquire into its motives in passing the act granting the divorce; its will was a sufficient reason for its action. One of the parties, the husband,was a resident within the Territory, and as he acted soon afterwards upon the dissolution and married agam, we may conclude that the act was passed upon his petition. If the Assembly possessed the power to grant a divorce in any 22 LAW OF HUSBAND AND WIFE. case, its jurisdiction to legislate upon his status, he being a resi- dent of the Territory, is undoubted, unless the marriage was a contract within the prohibition of the federal Constitution against its impairment by legislation, or within the terms of the ordinance of 1787, the privileges of which were secured to the inhabitants of Oiegon by their organic act, questions which we will presently consider. The facts alleged in the bill of complaint, that no cause existed for the divorce, and that it was obtained without the knowledge of the wife, cannot affect the validity of the act. Knowledge or ignorance of parties of intended legislation does not affect its val- idity, if within the competency of the. legislature. The facts men- tioned as to the neglect of the husband to send to his wife, wliom he left in Ohio, any means for her support or that of her children, in disregard of his promise, shows conduct meriting the strongest reptobation, and if the facts stated had been brought to the atten- tion of Congress, that body might and probably would have an- nulled the act. Be that as it may, the loose morals and shameless conduct of the husband can have no bearing upon the question of the existence or absence of power in the Assembly to pass the act. The organic act extends the legislative power of the Territory to all rightful subjects of legislation "not inconsistent with the Constitution ;!C& and cultiva- tion have been had, by the very ternis of tl c act. Until then he has only a promise of a title, what is sometimes vaguely called an inchoate interest. In some of the cases decided at the circuit, the fourth section of the act was treated as constituting a grant in prxsenti, subject to the conditions of continued residence and cultivation, that is, a grant of a defeasible estate. Adams v. Burke, 3 Sawyer, 415, 418. But this view was not accepted by this court. In Hall v. Russell, loi U. S. 503, the nature of the grant was elaborately considered, and it was held that the title did not vest in the settler until the conditions were fully per- formed. After citing the language of a previous decision, that "it is always to be borne in mind, in construing a Congressional grant, that the act by which it is made is a law as well as a con- veyance, and that such effect must be given to it as will carry out the intent of Congress," the court said : "There cannot be a grant unless there is a grantee, and consequently there cannot be a pres- ent grant unless there is a present grantee. If, then, the law making the grant indicates a future grantee and not a present one, the grant will take effect in the future and not presently. In all the cases in which we have given these words the effect of an im- mediate and present transfer it will be found that the law has des- ignated a grantee qualified to take according to the terms of the law, and actually in existence at the time. . . Coming then to the present case, we find that the grantee designated was any NATURE OF THE RELATION. 27 qualified 'settler or occupant of the public lands . . . who shall have resided upon and cultivated the same for four consecu- tive years, and shall otherwise conform to the provisions of the act.' The grant was not to a settler only, but to a settler who had completed the four years of residence, &z., and had otherwise conformed to the act. Whenever a settler qualified himself to become a grantee he took the grant, and his right to a transfer of the legal title from the United States became vested. But until he was qualified to take, there was no actual grant of the soil. The act of Congress made the transfer only when the settler brought himself within the description of those designated as grantees. A present right to occupy and maintain possession, so as to acquire a complete title to the soil, was granted to every white person in the Territory, having the other requisite qualifications, but beyond this nothing passed until all was done that was necessary to entitle the occupant to a grant of the land." In Vance v. Burbank, loi U. S. 514, 521, the doctrine of the pre- vious case was reaffirmed, and the court added : "The statutory grant was to the settler, biit if he was married the donation, when perfected, inured to the benefit of himself and his wife in equal parts. The wife could not be a settler. She got nothing except through her husband." , When, therefore, the act was passed divorcing the husband and wife, he had no vested interest in the land, and she could have no interest greater than his. Nothing had then been acquired by his residence and cutivation which gave him anything more than a mere possessory right ; a right to remain on the land so as to enable him to comply with the conditions upon which the title was to pass to him. After the divorce she had no such relation to him as to confer upon her any interest in the title subsequently acquired by him. A divorce ends all rights not previously vested. Interests which might vest in time, upon a continuance of the mar- riage relation, were gone. A wife divorced has no right of dower in his property ; a husband divorced has no right by the curtesy in her hands, unless the statute authorizing the divorce specially con- fers such right. It follows that the wife was not entitled to the east half of the donation claim. To entitle her to that half she must have con- tinued his wife during his residence and cultivation of the land. The judgment of the Supreme Court of the Territory must there- ore be affirmed ; and it is so ordered. Mr. Justice Matthews and Mr. Justice Gray dissented. Mr. Justice Bradley was not present at the argument and took no part in the decision. 11. ESSENTIALS OF MARRIAGE. 1. RELATIONSHIP. ELLIOTT V. GURR, 2 PHILLIMORE 16. (1812). Judgment. Sir John Nicholl. Sarah Lester, otherwise Gurr, died intestate in July, 1796; a marriage had been solemnized in 1787, between the deceased then a widow, and William Gurr then a bachelor, in the regular form. William Gurr survived his wife, but did not take out an administration to her effects. In 1812 a decree was taken out agfainst him, to show cause why administration should not be granted to John Elliott, and Elizabeth Sugden, the brother and sister of the deceased; the suggestion being, that the marriage was incestuous and void to all intents and purposes, and, there- fore, that the deceased did not die the wife of William Gurr, but the widow of her former husband, Abraham Lester ; and the ques- tion is, whether Sarah Lester is to be considered as dying the wife of William Gurr, or as dying a widow. The marriage was within the prohibited degrees ; for the hus- band was the sister's son of the woman's former husband, that is, her nephew by affinity ; but the marriage was not declared void in the lifetime of the parties. Now, the difference between void, and voidable, is so clear, that no person who ever looked into any elementary book on the subject, is ignorant of it. The canonical disabilities, such as consanguinity, affinity, and certain corporal infirmities, only make the marriage voidable, and not ipso facto void, until sentence of nullity be obtained; and such marriages are esteemed valid unto all civil purposes, unless such sentence of nullity is actually declared during the lifetime of the parties. Civil disabilities, such as a prior marriage, want of age, idiocy, and the like, make the contract, void ab initio : not merely voidable ; these do not dissolve a contract already made ; but they render the parties incapable of contracting at all, they do not put asunder those who are joined together, but they previously hinder the junction; and if any persons under these legal incapacities come together, it is a meretricious, and not a matrimonial union, and, therefore, no sentence of avoidance is necessary. ESSENTIALS OF MARRIAGE. 29 The present is not a void, but a voidable marriage, and, there- fore, not having been declared void in the lifetime of the parties, is valid to all civil purposes ; and to all such purposes, the deceased died the wife of William Gurr, and he was her husband, and their issue are legitimate ; one of the civil rights of the husband is, that of administration to his wife, which is held to be within the statute of administrations; and is expressly confirmed by statute 29 Car. 2. c. 3. both the administration, and the property belong exclusive- ly to the husband, it is not an ecclesiastical, but a civil right, though it is a right administered in this court. In a matter so clear of doubt it is almost waste of time to quote authorities. Modern cases would hardly be found, because such a point has hardly been questioned in modern times. But it is so laid down by Bracton and Holt ; and it is thus stated by Lord Coke : "If a marriage de facto be voidable by divorce, in respect "of consanguinity, affinity, pre-contract, or such like, whereby "the marriage would have been dissolved, and the parties freed "ex vinculo matrimonii, yet if the husband die before any divorce, "then, for that it cannot now be avoided, the wife de facto shall "be endowed; for this is legitimum matrimoriium quoad dotem ; "and so in a writ of dower, the bishop ought to certify that they "were legitimo matrimonio copulati, according to the words of "the writ; but if they were divorced a vinculo matrimonii in the "lifetime of the husband, then she loseth her dower." Here, then, it is clearly laid down, that unless it is avoided in the lifetime, it is legitimum matrimonium quoad dotem. The distinction of a void marriage may be seen in the case of Hemming v. Price Hemming was libelled ex-officio, for adul- try zvith a person deaJ. She pleaded that they were married, and had issue; it zvas replied, that she had a former husband then liv- ing. A prohibition was pryed alleging that the suit would have the effect of bastardizing the issue. Holt, C. J. — The issue are bastardized without any proceed- ings, if the parents were never married; th^ Ecclesiastical Court shall not proceed to dissovle a marriage de facto, after the death of either party, as in the case of consanguinity, pre-contract, and the like; but in this case, if the replication be true, the marriage was, ipso facto, void. Per Cur. No prohibition. In this case, therefore, the marriage was ipso facto void, be- cause there was a former husband living, and therefore it required no sentence. The case cited, of Haydon v. Gould, was a marriage between Sabbatarians, not celebrated by a priest; this was held to be no 30 LAW OF HUSBABfD AND WIFE. marriage, a void marriage, a mere nullity. The Co wr^ said: Hay- don demanding a right by the ecclesiastical law, must prove him- self a husband according to that law, to entitle himself to the ad^ ministration. In that case, the ecclesiastical law held that they were never married ; in the case now before me, the ecclesiastical law, as es- tablished in these realms, notwithstanding the canonical disabili- ties, (and the bishop is bound so to certify) holds that the par- ties were legitimo matrimonio copulati at the time of the death, the marriage being only voidable, but not having been avoided by sentence of divorce during the lifetime of the parties. In the present case, then, the parties having been de facto married, and that marriage, though voidable, not having been declared void in the lifetime of the parties ; the husband remained husband to all civil purposes, and is clearly entitled to the admin- istration. The constant course of practice is in entire conformity with this : both the husband and the wife uniformly take such admin- istrations — no person can be found to question it, for no case can be produced ; and no similar decree is brought forward. If par- ties will try experiments, and call in question rules clearly estab- lished by a uniform course of practice, they, and not the parties proceeded against, ought to be liable to the expenses. It is the duty of the Court to check such novelties in practice, by costs. 2, CIVIL CONDITION. HOWARD V. HOWARD, 6 JONES LAW (N. C.) 235. (1858). Action of ejectment, tried before Caldwell, J., at the last fall term of Halifax Superior Court, upon the following case agreed. Miles Howard, a free man of color, died intestate in 1857, beized in fee of the premises in dispute. About the year i8i8, he being then the slave of the late Thos. Burgess, Esq., without other ceremony, took for his wife, by con- sent of his master, and a Mr. Burt, Matilda, a slave of the latter and was immediately thereafter duly emancipated. Miles then bought his wife, Matilda, and by her had issue, the lessor Frances, when the said Matilda was duly emancipated. After this event, they had other issue, to-wit: the lessors, Robert, Eliza, Miles,' Charles, Lucy, Ann, Thomas, when the said Matilda died. In a few years afterwards, the said Miles took another wife, a free woman of color, and had issue, the defendants, Sarah, Johni Nancy and Andrew. The latter marriage was preformed with ESSENTIALS OP MARRIAGE. 31 •due ceremony, the former was celebrated in the manner usual among slaves, and the parties lived together ever afterwards as man and wife, and kept house together as such. In 1836, the lessor, Frances, with other children, who died before the intestate. Miles, was emancipated as the children and slaves of the said Miles Howard, by an act of the legislature. The plaintiff's lessors claimed to be tenants in common with the defendants — which the defei^dants denied, and claim to be the only legitimate children, and sole heirs of their father. The court, upon consideration of the case submitted, gave judgment in favor of the defendants; from which the lessors of the plain- tiffs appealed. B. F. Moore, for the plaintiffs. Conigland, for the defendants. Pearson, C. J. A slave, being property, has not the legal capacity to make a contract, and isi not entitled to the rights or subjected to the liabilities incident thereto. He is amenable to the criminal law, and his person (to a certain extent) and his life, are protected. This, however, is not a concession to him of civil rights, but is in vindication of public justice, and for the preven- tion of public wrongs. Marriage. is based upon contract; conse- quently the relation of "man and wife" cannot exist among slaves. It is excluded, both on account of their incapacity to contract, and of the paramount right of ownership in them, as property. This iubject is discussed in State v. Samuel, 2 Dev. and Bat. 177, where it is held, that a slave is a competent witness for or against another slave, towards whom she sustained the relation of wife, in a cer- tain sense of the term, on the ground that the relation was not that of "man and wife" in its legal sense, and did not embrace any of the civil rights incident to marriage. In Alvaney v. Powell, i Jones' Eq. 35, it is held where a mother and children are emancipated, a child begotten and born while the mother had no husband, was entitled to the same share of her estate, as the children who were begotten and born while she had a husband ; on the ground "that in regard to slaves, even ' after they become free negroes, there is no necessity growing out of grave considefation of public policy, for the adoption of the 5!tern rule of the common law. "A bastard shall be deemed nullius films; to have no parents, and not even be considered the child of the mother who gave it birth ; and in contemplation of law there is no difference between the case of slaves who enter into the quali- fied relations of "man and wife" by the express permission of their owners, and that of those who "take up" with each other, 32 LAW OF HUSBAND AND WIFE.. from a mere impulse of nature, in obedience to tlie command, "mul- tiply and replenish the earth," for the law does not recogiiize either relation so as to give to it any effect in respect to civil conse- quences. On the other hand, there is in moral contemplation, and in the nature of man, a wide distinction between the cohabitation of slaves, as "man and wife," and an indiscrimate sexual inter- course ; it is recognized among slaves, for as a generad rule, they respect the exclusive rights of fellow slaves who are married. Such marriages are permitted and encouraged by owners, as well in consideration of the happiness of the slaves and their children, as because, in many ways, their interests, as masters, is thereby promoted. Hence a married couple is permitted to have a "cabin and a patch off to themselves," and where they belong to differ- ent persons, the man, at stated times, is allowed "to go to his wife's house." The relation is so^far favored in the administration of the criminal law, as to allow to it the effect of drawing into appli- cation the rule, that when a person finds one in the act of adultry with his wife, and instantly kills him, it is but manslaughter, be- cause of the legal provocation. This result, however, is not at- tributable to any civil right, growing out of the relation, but to the fact that, to a certain extent, it has its origin in nature ; and a violation of the right which is peculiar to it, in that respect, ex- cites the furor brevis, whether the relation was entered into with or without the legal capacity, and tlje ceremonies and forms ne- cessary to make a marriage valid for civil purposes. This is as- sumed to be the law in State v. John, 8 Ired Rep. 330, and has been so held upon the circuits. Thus far the line is established by these three cases. We are now to run further, and fix another landmark. In Alvaney v. Powell, supra, the court was not called on to decide whether the children, after being emancipated witlj their mother, were to be considered as legitimate, or illegitimate; the purpose of the case being answered by holding that they all stand on the same foot- ing; because, in either view, they were entitled to succeed to their mother and tq each other, both, according to our laws, and the laws of Canada. Nor are we now at liberty to decide it, because the facts of this case do not present it. Both parents were s'aves when the relation was entered into. Afterwards, the father was emancipated, and bought the mother, and held here as hi^ slave^ at the birth of the lessor, Frances. This presents a question, in many respects, different from that of the status of a child born while both parents were slaves, and lived together as man and wife ; for the relation of master and slave is wholly incompatible ESSENTIALS OP MARRIAGE. 33 with even the quahfied relation of husband and wife, as it is sup- posed to exist among slaves, and the idea that a husband may own his wife as property and sell her, if he chooses, or that a parent may own his children and sell or give them away as chattels, and that the wife of the children, are, nevertheless, entitled to any of the civil rights incident to those relations, involves, a legal ab- surdity. The relations are repugnant ; and as that of master and slave is fixed and recognized by law, the other cannot exist ; and it follows that the lessor, Frances, does not take as one of the heirs ef her father. The other lessors are in a condition still more unfortunate; for, while relieved from the incongruity, which is involved in the case of their sisters, by the fact, that their mother, at the time of their birth, was free, yet, that circumstance caused them to be un- lawfvilly begotten. Their parents, having become free persons, were guilty of a misdemeanor in living together as man and wife, without being married, as the law required ; so that, there is noth- ing to save them from the imputation of being "bastards." Our attention was called by Mr. Moore to Girod v. Lewis, i Cond. Louisiana Rep. 505, where it is held that, "a contract of mar- riage, legal and valid by the consent of the master and moral as- sent of the slave, from the moment of freedom, although dormant during the slavery, produces all the effects which result from such contracts among free persons." No authority is cited, and no reason is given for the decision, except the suggestion that the marriage, being dormant during the slavery, is endowed with full energy from the moment of freedom. We are forced to the con- clusion, that the idea of civil rights being merely dormant durnig slavery, is rather a fanciful conceit (we say it with respect) than the ground of a sound argument. It may be, that in Louisiana, the marriage relation is greatly affected by the influence of relig- ion, and the' mystery of its supposed dormant rights, is attribu- table to its divine origin. If so, the case has no application, for, in our courts, marriage is treated as a mere civil institution. To the suggestion, that as the qualified relation of husband and wife between slaves is not unlawful, and ought, in fact,to be encouraged, upon the ground of public policy, so far as it com- ports with a right of property, emancipation should be allowed to have the efifect of curing any defect arising from the non-ob- servance of the prescribed form and ceremonies, and the absence of a capacity to contract, as there is plenary proof of consent, which forms the essence of the marriage relation ; the reply is : The relation between slaves is essentially different from that 34 LAW OF HUSBAND AND WIFE. of man and wife joined in lawful wedlock. The latter is indis- soluble during the lives of the parties, and its violation is a high crime ; but with slaves it may be dissolved at the pleasure of either party, or by a sale of one or both, dependant on the caprice or ne- cessity of the owners. So the union is formed, and the consent given in reference to this state of things, and no ground can be conceived of, upon which the fact of emancipation can, not only vant of chastity and concealment are no ground of divorce ;" the case having been likened by the chancellor, as it seems to me, to one merely of ante-nuptial incontinence. Ante- nuptial incontinence is, undoubtedly, insufficient to annul a mar- riage, but this case goes farther than that, and rests not only there, but upon the fact of pregnancy and a fraudulent concealment at the time of the marriage.' Has the Court of Chancery, then, for this cause, jurisdiction to annul the marriage ? I am not aware of any case in this state that will throw any light on that question, and the reason is, that previous to the pres- ent constitution the marriage relation was dissolved by the legisla- ture, when causes existed outside of those mentioned in the statute. Since the adoption of the constitution of 1844, providing that "no divorce shall be granted by the legislature," the question has be- come important, whether the Court of Chancery of this state has any jurisdiction to declare a marriage void, or to dissolve it for causes antecedent to it, except the two mentioned in the statute, which are, where another husband or wife is living at the time of the second marriage, and also where the parties are witiiin the pro- hibited degrees. If the jurisdiction of the court is purely statutory, then there is no power in this state to declare the marriage of a lunatic, idiot, or infant, void. Such a marriage it is true, might be treated collaterally as void, but without the power stated, the ceremony that may have been performed in such a case could not be set aside by direct judicial action. And so in case of consent extorted by duress, where there may be a color of marriage, yet Jacking the element of consent which is necessary in every mar- riage. Cases of this character necessarily call, for the existence of an adequate jurisdiction in every well organized and enlightened government, and it can hardly be supposed that our existing sys- tem, of courts is impotent to furnish it. The doubt arises from the fact that no such jurisdiction was exercised by the English Court of Chancery, and that it was exercised by the gcclesiastical courts alone. Practically speaking, therefore, that jurisdiction was ex- 80 LAW OF HUSBAND AND WIFE. elusive of the Court of Chancery, and for that reason there is a want of adjudication as to the dormant powers of this latter court. " The report of an anonymous case in 2d Shower (Case 269), shows that during the times of the English Revolution they sued for alimony in chancery. Alimony was peculiarly a subject of ec- clesiastical jurisdiction. The language of the report is this : "In the late times they sued for alimony in chancery, and the judges were then of opinion, that there being no spiritual courts nor civil law, the chancery had the jurisdiction in those days ; but now we have courts christian, the chancery will allow of demurrers for such bills for alimony." This would seem to indicate that there were latent powers in that court, not exercised by reason of the ex- istence of other courts peculiarly adapted to those matters. And, in South Carolina, the Court of Chancery, without the aid of a statute, assumed jurisdiction upon the same subject. Jelineau v. Jelineau, 2 Dess. 45. This shows the adaptability of that court to supply a remedy within the scope of its general jurisdiction, where none is otherwise provided. The late chancellor, in the case of McClurg V. Terry, 6 C. E. Green, 226, believed, from the nature of the Court of Chancery, and the present character of our constitu- tion, and of the courts established under it, that the power must necessarily exist to declare a ceremony of marriage void, where neilher party in earnest consented to it, and accordingly declared the same a nullity. That case holds the existence of such a juris- diction, apart from the statute. To my mind, that decision is founded in sound law, and the principle of it would undoubtedly in- clude all the cases of lunacy, idiocy and duress already instanced. The following cases recognize such a jurisdiction as inherent in a cpurt of equity: Wightman v. WightmaUj 4 Johns. Ch. 343; Ferlat v. Gojon, Hopk. 478 ; Aymar v. Roif, 3 Johns, Ch. 49 ; Clark v. Field, 13 Vt. 460. The effect of lunacy, idiocy, infancy and fraud, upon con- tracts, and declaring void the same when so affected, are well set- tled matters of equity jurisdiction, and unless there is something so peculiar in the marriage contract, as to except it from the scope of such jurisdiction^ there is no reason why it should not be exer- cised. Marriage is regarded in our law, although peculiar in its nature, and subject to many considerations of public policy, and having much of religious sanction about it, as a civil contract. Un- der our political system it can only be looked at in its civil aspect. As a civil contract^ the common law holds, among other essentials, that consent is necessary to its validity, and there is no difference ESSENTIALS OP MARRIAGE. 81 in that respect, whether the adjudication is made by the ecclesi- astical courts or the courts of common law in England. In Eng- land, the ecclesiastical courts were a part of the religious establish- ment of the government, and had jurisdiction over the marriage relation, as well in reference to the mere civil or common law feat- ures of it, as to its religious. Such a religious establishment be- ing inimical to our institutions, the policy of our laws has been to distribute among the common law and equity courts, or special tribunals adopted or constituted for the purpose, as in the case of the Prerogative and Orphans Courts, all the powers of the ecclesi- astical courts which are necessary and proper for the protection and enforcement of civil rights. Whenever, then, it is necessary to secure a civil right, or to be redressed for civil wrongs, we na- turally expect the proper jurisdiction to be found amongst the ex- isting courts, even if those rights or wrongs were subjects of ec- clesiastical jurisdiction. The mere fact that the marriage relation was always annulled in England by the courts christian, apart from an act of parliament, ought not in itself, when the case is not canonical merely, but founded on a common law right, to be suffi- cient to exclude judicial action, where no such courts exist, when an appropriate jurisdiction is found in another tribunal. Our constitution was framed on the idea that the legislative, executive and judicial departments of the government should be entirely distinct, and that all judicial pozver should be vested in the then existing courts, and such inferior courts as might be after- Avards established. The dissolution of the marriage contract for antecedent causes was by judicial action; the aid of parliament being sousrht only to dissolve for causes subsequent to the marriage, and then, as a rule, only after the ecclesiastical courts had separated the parties a ■mensa et thoro. Those courts had no power to dissolve for sub- sequent causes, not even adultery, but for antecedent causes they could annul the marriage. Such action was purely judicial. So far then as that was based upon causes affecting the essentials of the marriage as recognized by the English common law, and di- vested of mere canonical considerations, to that extent the jurisdic- tion of those courts should be regarded as lodged in our Court of Chancery under its appropriate powers, where the subjects are fit- ting. This view, I think, must necessarily result from the char- acter of our constitution, for in its very frame work there seems to be a necessary implication, that when the legislature was prohib- ited from granting a divorce and no substituted jurisdiction was 82 LAW OF HUSBAND AND WIFE. specially provided, the existing tribunals were sufficient to secure the integrity of the marriage contract. It may be said that the structure of part of our act of divorce is such as to give encourage- ment to the idea that the jurisdiction of the Co.urt of Chancery in the respect in question was purely statutory, for the first section provides that "the Court of Chancery shall have jurisdiction of all causes of divorce, and of alimony or maintenance, by this bill -di- rected and allowed." The original act was passed in 1794, and I suppose that previous to that time the legislature, both colonial and state, did the whole business of divorcing. But that is not conclu- sive on the question before us, for no judicial tribunal in England could divorce absolutely for causes subsequent to the marriage, and without legislation our Court of Chancery clearly has no such power. So far then as the adultery and desertion are concerned, our act was an enabling act. That consideration alone would ex- plain the use of the general language stated, although some causes of divorce are mentioned upon which the court might perhaps act without it. The jurisdiction sought in this case is to annul for fraud, for fraud in the consent, and is akin to that in a case of lunacy, idiocy, or infancy, for these latter all have to do with the consent. Fraud is a well recognized subject of equity jurisdiction; the cause, speaking generally, is appropriate to an equity tribunal. The character of the relief sought is the annulling of the contract, and that also is a well settled equity power ; and unless the action of the Court of Chancery can be invoked upon the contract itself, where consent is wanting, whether for idiocy, lunacy, want of age. or fraud, the strange result would follow, that such contracts could only be attaclced collaterally, and no way provided among an en- lightened people, to relieve from the embarrassment and mischiefs of the illegal contract, by blotting it out. Speaking generally then, the jurisdiction of our Court of Chancery to annul fraudulent con- tracts is sufficient to include the contract of marriage, and although a new application of it, I see nothing in the nature of the marriage relation, as viewed by our law, to prevent its exercise. The ab- sence of ecclesiastical courts, the existence in the Court of Chan- cery of the general jurisdiction stated, and there being no provis- ion in the constitution for a different tribunal, and consent being a common law essential to the marriage contract, all show that the jurisdiction must embrace the right to annul such a contract for a sufficient fraud. Apart from the implication in our constitution and our system of courts, such is the opinion, in resuh, of learned ESSENTIALS OF MARRIAGE. 83 writers, and is in accordance with respectable adjudication made without the aid of any statute conferring jurisdiction. 2 Kent 76, 77; Reeves Dom. Rel. 207; Wightman v. Wightman, Ferlat v. Gojon, Clark v. Field, already cited. No satisfactory light can be gathered on this subject from the history of acts in some states, in terms giving jurisdiction for fraud. Some of them may have been passed to quiet doubts upon the question, and some under the legislative belief of their neces- sity. But however that may be, it is a new question in this state, which must be met on principle, and decided accordingly. The remaining part of the question under consideration, is in reference to the sufficiency of the fraud. This is a delicate question, for the relation is peculiar, and not like other contracts, whicli may be dissolved by the mere act of the parties. Most ser- ious considerations of public policy and good morals affect it, and demand that it should be indissoluble, except for gravest causes. The mere presence of fraud in the contract, is not sufficient to dis- solve it. The fraud must exist alone in the common law essentials of it, and then not to have the effect of avoiding it against sound considerations of public policy. As already stated, ante-nuptial in- continence merely, though fraudulent, is not sufficient. Neither is the mere mistake of the husband, as to the paternity of a child bom after marriage, but begotten before by another, where he himself had been guilty of criminal lewdness towards his wife be- fore marriage, sufficient. Neither are false representations in re- gard to family, fortune, or external condition, sufficient. In granting relief, courts should always be careful that no violence is done to the nature of the relation and to sound morals. It must be extraordinary fraud alone, that will justify an avoidance of the bond. The fraud charged in this case is extraordinary, peculair, and of the most flagrant character, entering into the very essence of the contract, and if allowed to succeed, either compelling the husband to disown the child for his own protection, or imposing upon his the necessity of recognizing and maintaining the fruit of his wife's defilement by another, and having it partake of his in- heritance. In either event, shame and entire alienation are the inevitable consequences. Surely, there can be no good policy in such action as will either compel parties to live to gether under these circumstances, having only the shadow of marriage, or com- pel them, as would be more likely, to live totally separated, a con- tinual annoyance to each other, and a source of the greatest un- happiness. If the contract is repudiated as soon as the fraud is 84 LAW OF HUSBAND AND WIFE. discovered, so that there is no acquiescence in it, good morals and the protection of the integrity of the marriage relation require that an innocent man should be relieved from so great a fraud. The general principle of the law is, that fraud in a material part, vitiates a contract, and the only reason why it does not apply with full force to the marriage contract is, that marriage is sui generis in many respects, and should not be vitiated even if fraud- ulent, when against "good policy, sound morality, and the peculiar nature of the relation." To be free from that restriction, the fraud must be of an extreme kind, and in an essential of the contract. In addition to the considerations stated, the character of the fraud in this case, and its effect upon the contract, are well described by Bigelow, C. J., in an analogous case, Reynolds v. Reynolds, 3 Allen 609. That jurist, afteir remarking upon the insufficiency of mere incontinence before marriage, to declare it void, and why, says : ■'But a very different question arises, where, as in the case at bar, a marriage is contracted and consummated on the faith of a repre- sentation that the woman is chaste and virtuous, and it is after- wards ascertained, not only that this statement was false, but that she was, at the time of making it, and when she entered into the marriage relation, pregnant with child by a man other than her husband. The material distinction between such a case and a mis- representation as to the previous chastity of a woman, is obvious and palpable. The latter relates only to her conduct and character prior to the contract, while the former touches directly her actual present condition, and her fitness to execute the marriage contract, and take on herself the duties of a chaste and faithful wife. It is not going too far to say that a woman who has not only submitted to the embraces of another man, but who also bears in her womb the fruit of such illicit intercourse, has during the period of her gestation, incapacitated herself from making and executing a valid contract of marriage with a man who takes her as his wife in ig- norance of her condition, and on the faith of representations that she is chaste and virtuous. In such a case, the concealment and false statement go directly to the essentials of the marriage con- tract, and operate as a fraud of the gravest character, on him with whom she enters into that relation. One of the leading and most important objects of the institution of marriage under our laws is the procreation of children, who shall with certainty be known by their parents as the pure offspring of their union. A husband has a right to require that his wife shall not bear to his bed aliens to his blood and lineage. This is implied in the very nature of ESSENTIALS OF MARRIAGE. 85 the contract of marriage. Therefore a woman who is incapable of bearing a child to her husband at the time of her marriage, by reason of her pregnancy by another man, is unable to perform an important part of the contract into which she enters ; and any rep- resentation which leads to the belief that she is in a marriageable condition, is a false statement of a fact material to this contract, and on well settled principles affords good ground for setting it aside and declaring the marriage void." I have quoted thus at length, because it is the judgment of a highly respectable court, on the essential character of the fraud, and what should be its ef- fect on the marriage relation. When that case was decided, there existed in Massachusetts a statute for the court "to grant a divorce where a marriage is "supposed to he void, or the validity thereof is doubted, on ground of fraud ;" but it designated no particular fraud that would avoid the contract, and left it to the court to de- termine, upon principle, the kind. The statute has reference only to the technical jurisdiction, assuming in principle that fraud would avoid. To my mind, that case declares the true doctrine, and the opinion shows that the result was carefully reached, and with proper caution against the encouragement of any lax notions of the marriage tie. No danger resulted from that decision, as appear from twc5 later cases — one, Foss v. Foss, 12 Allen 27, in which a decree was refused where a man married a woman with whom he previously had connection, and of whose pregnancy he was aware, he being assured by her that the child was his, but which turned out to be another's ; the other, Crehore v. Crehore, 97 Mass. 330, where the husband became acquainted with a woman, and soon after had intercourse with her before marriage, when she stated she was then with child, but the next morning on being told that he would not marry her if so, she said it was only nonsense, and not true. He married her, but was refused relief because' he had Knowledge of her unchastity, and was put on his guard. The same principle contained in Reynolds v. Reynolds, is sus- tained in the case of Baker v. Baker, 13 Cal. 87, opinion by Field, J., afterwards and now Justice of the Supreme Court of the United States. That also was an analogous case to this. There was also a statute in California in regard to jurisdiction for fraud, but with- out indicating the character. In this country, the weight of ad- judication is in favor of dissolving the marriage for fraud like this. In England, I find no case directly in point, yet the power of the ecclesiastical courts to annul for fraud in obtaining consent, is well settled, as will be seen by the following references and cases: 86 LAW OF HUSBAND AND WIFE. Rogers' Ec. Law, 564 ; Dalrymple v. Dalrymple, 2 Cons. Rep. 54, 104 ; Sullivan v. Sullivan, 2 Ibid. 238, 246 ; Portsmouth v. Ports- mouth, I Hagg, 355 ; Hanford v. Morris, 2 Cons. Rep. 423 ; Hull V. Hull, 15 Jur. 710 (5 E. L. & E. 589). The apparent absence of direct adjudication on the point, may perhaps be accounted for by the meagre character of the reports previous to 1809, when PhilHmore's reports commence. Bishop on M. & D., § 13. At any rate, there is no indication in the text books against it, and if fraud, under any circumstances where the forms of consent have been gone through, is to be allowed as a ground of dissolution, it should, upon principle, be in this case. There ought always to be an indisposition in every court to weaken the force and sacredness of the marriage tie. That consideration should induce great carefulness, but should not deter us from ad- vancing where principle leads us, although before, in our courts the objective point has not been attained. The fraud in this case was so gross and far-reaching, as to avoid the consent, and for that reason the marriage must be declared null and void, ab initio. The decree being otherwise is reversed, and the record remitted for the chancellor to decree according to this opinion. SISSUNG v. SISSUNG, 65 MICH. 168. (1887). Appeal from Monroe. (Joslin, J.) Argued January 7, 1887. Decided February 15, 1887. Bill for divorce for fraud. Decree overruling general de- murrer and remanding case for further proceedings. Affirmed by an equal division of the court. The facts are stated in the opin- ion. George M. Landon, for complainant. George Gartner, for defendant. Morse, J. This is an appeal from the Monroe Circuit Court in Chancery, from an order overruling the general demurrer of the defendant to the bill of complaint filed in this cause. We are there- fore to determine from the bill, taken as true, whether it alleges a cause of action. The complainant shows that he intermarried with the defend- ant, February 10, 1886; that he resides in Frenchtown, in the County of Monroe, and has lived in this state the requisite statu- tory time, and upwards, previous to the filing of this bill; that while he lived with the defendant she gave birth to a male child. ESSENTIALS OP MARRIAGE. 87 born April 20, 1886, whose father is one Joseph Shoemaker, as he is informed by defendant, and verily believes ; — "That his acquaintance with said Gertrude began in the month of June, 1884, at which time she visited friends in the neighbor- hood of your orator's home, for about one week; that she again came to visit said friends on or about the month of January, 1885, and remained for about one month, and theii left for her father's home, in said County of Wayne, as he is informed and believes ; that, after her said return, your orator neither saw nor heard from her again until the latter part of November, or the first part of De- cember, 1885, at which time she again visited her said friends for about one week, and returned home ; that about six weeks after said last visit, said Gertrude requested your orator to come and see her, because she was sick since her last visit ; that he went to visit her, and she. informed your orator that she was pregnant by him, and insisted upon being married to him. "Your orator further represents that, being without experi- ence, and relying wholly on the truthfulness of said representation, and being willing to repair, so far as in his power, any wrong that he may have done, and to save the reputation and character of said Gertrude as well as his own, and intending to do as nearly right as he could in the circum.stances, he married said Gertrude as afore- said; that he took said Gertrude to his home in Frenchtown, in said County of Monroe, and that they took and occupied a house together, and lived together as husband and wife, until the birth of said child, as aforesaid, up to which time your orator had, in good faith, believed said child to be his own." He alleges that he never had sexual intercourse with the de- fendant before her last visit, in the latter part of November or first part of December, 1885 ; that said child was full grown, and that the defendant had carried the same for the full period of gesta- tion ; that said child is not his, as falsely and fraudulently claimed by said defendant when she persuaded him to marry her ; that de- fendant knew all the time that he was not, and could not be, the father of said child, but falsely pretended she was pregnant by him, and by so pretending induced him to' marry her ; that he was deceived and defrauded into said marriage, and ought not to be held as the father of said child ; that he remained in the house with said defendant four days after her confinement, under the advice of a physician, and attended to her wants, for the sole purpose of seeing that she did not suffer ; that, as soon as suitable help could be procured, he left, and went to his father's house, since which time he has had no communication or intercourse with defendant. 88 Law of husband and wife. He avers the absence of any collusion or agreement, in con- formity to the rule ; and (prays for a divorce, and that the child may be declared to be the child and heir of the defendant, but not of himself, and for general relief. It seems to be well settled that a fraudulent concealment by the female of her pregnancy by another person will void her mar- riage to one ignorant of this fact, and believing her chaste at the time of the marriage. If a woman is with child by a stranger at the time of the marriage, and her intended husband is ignorant of the fact, he may have the marriage declared null for fraud. Baker v. Baker, 13 Cal. 87, 102; Reynolds v. Reynolds, 3 Allen, 605; Morris v. Morris, Wright (Ohio), 6^0 ;Ritter v. Ritter, 5 Blackf. 81 ; Scott V. Shufeldt, 5 Paige, 43 ; Carris v. Carris, 24 N. J. Eq. 516. A woman to be marriageable, it is said, must, at the time, be able to bear children to her husband ; as the first purpose of matri- mony, by the laws of nature and society, is procreation. A woman who is pregnant at the time of marriage by a stranger is not in a condition to bear children to her husband, and the concealment of that fact, or a misrepresentation, is a gross fraud upon the hus- band, and sufficient to avoid the marriage, if he was ignorant of her situation,, and believed her chaste and virtuous. But most of the reported cases upon the subject hold that where the husband has had intercourse with the wife before marriage, and knows that she is pregnant, but is falsely led to believe that the child is his, and its birth proves it not to be his, yet, nevertheless, he must submit to the bonds of matrimony, and the presumed paternity of the child. Foss V. Foss, 12 Allen, 26 ; Crehore v. Crehore, 97 ^Mass. 330 ; Car- ris V. Carris, 24 N. J. Eq. 517. In 97 Mass. the court say that the husband had full knowledge that the woman was unchaste before he entered into the marriage contract, and was thereby put on his guard, so that he cannot al- lege that he was induced to contract the marriage by such fraud and deceit of the defendant as will enable him to avoid his contract. 'In Scroggins v. Scroggins, 3 Dev. 535, the petitioner' was married on the eighteenth of December, 1828, and a mulatto child was born to his wife, May i, 1829. The opinion states that he did not venture to swear that he believed her chaste at the time of his marriage, and for that reason denied his petition. But in a later case, Barden v. Barden, reported in the same volume, at page 548, where the petitioner alleged that he knew at the time of the marriage that the defendant had a child, but that ESSENTIALS OP MARRIAGE. 89 he thought it was his, and that she, by her artful conduct before marriage, induced him to beHeve that she had been modest and virtuous, except in the one instance, which she pretended was the result of her attachment for him, and that soon after marriage he discovered that the child was a mulatto, upon which he had in- stantly parted from her, the court, composed of the same judges who united in the opinion in the case of Scroggins v. Scroggins, held the petition good. In Long v. Long, "JJ N. C. 304, the ma- jority of the court followed the decision in Scroggins v. Scroggins. In Scott V. Shujeldt, 5 Paige, 43, the complainant alleged in - his bill that he had occasionally visited defendant, and that she af- terwards made oath before a magistrate that she had been deliv- ered of a bastard child, and that the complainant was the father of such child ; that he was arrested upon the charge of bastardy, and required to give bail as the putative father of the child ; that, be- lieving it to be a white child, and being unable to procure bail, he consented to marry defendant, and did marry her ; that he subse- quently ascertained that the child was a negro child, the complain- ant and defendant being both white persons ; and that he had not cohabited with the defendant subsequently to such marriage. It was held by the chancellor that the defendant intentionally de- frauded the complainant in such a manner as to authorize the court to declare the marriage contract a nullity. The court remarks that: "If the child had not been born at the time of the marriage, the complainant would have had some difficulty in showing that he had been intentionally deceived and defrauded by the defend- ant, as she might possibly have supposed the child to be his, al- though she had also had connection with a negro about the same time." This case sustains the bill of the complainant in this case. It authorizes the nullifying of a marriage procured by the. fraud of the woman in representing to the man that she is pregnant by him, when, at the time of such representation, she knows that she is pregnant by a stranger, and not by him. And it seems to me to be consonant with equity and justice. Each case is governed more or less by its own circumstances, and, in the cases holding the con- trary doctrine, a belief seems to have pervaded the courts that the complainant had been guilty of such moral wrong or statutory crime, by his intercourse with the defendant before marriage, as to preclude him from equitable relief, or that he had not shown with 90 LAW OF HUSBAND AND WIFE. sufficient certainty that the child could not be his, and that the de- fendant knew at the time of the representations that the child was the fruit of intercourse with another. In the case before us, as it stands upon the record, the defend- ant was unchaste, and pregnant by another man, when the com- plainant had intercourse with her. Taking advantage of this in- tercourse to hide her coming shame, she sends for complainant, who is young and inexperienced in the ways of the world and womeii, and pretends to be sick and pregnant from the result of the connection with him. She insists upon marriage. He, believ- ing the child to be his, and the girl to have been virtuous before he met her, with the laudable desire of repairing the wrong that he supposed he had done, and to save her character and reputation, marries her. The law looks with favor upon such action, and prosecutions for bastardy and seduction are frequently settled by marriage. If the story of the complainant is true, he followed the dictates of conscience, and entered into the marriage relation with defendant from worthy motives. The betrayer of the innocent cannot be condemned for marrying his victim. The seduction is the crime to be execrated, but marriage afterwards is to some ex- tent a reparation of the wrong ; at least, it is the best amendment he can make the injured one. The mere act of sexual intercourse between a single man and an unmarried woman is not a crime at common law, or under any statute of this state. The fault of the complainant in sinning against the moral law does not entitle him to be deceived and de- frauded in this manner. Acting from the best of motives, as all must concede, to repair the wrong as best he could under the cir- cumstances, he marries the defendant in the full belief that he has been the means of ruining an innocent and chaste \yoman, and that the child in her womb is his. This belief has been engendered by the false statements of the defendant, purposely made to procure such marriage. The birth of the child proves conclusively that the woman was unchaste before he met her ; that she was aware of her pregnancy by another; and that she led him to believe that he alone was the author of her shame, for the express purpose of accomplishing her marriage with him. In my opinion he is en- titled to relief. The same reasons that apply in cases where the pregnancy is unknown apply here. A man should not be com- pelled to assume the burden of supporting a child not his own, or its paternity, against his will, or when his consent is procured by 'fraud. ESSENTIALS OF MARRIAGE. 91 The essence of the marriage contract is wanting when the woman, at the time of its consummation, is bearing in her womb, knowingly, the fruit of her ilUcit intercourse with a stranger ; and the result is the same whether the husband is ignorant of her preg- nancy, and believes her chaste, or is cognizant of her condition, but has been led to believe that the child is his. "A husband has a right to require that his wife shall not bear to his bed aliens to his blood and lineage. This is implied in the very nature of the contract of marriage. Therefore a woman who is incapable of bearing a child to her husband at the time of her marriage, by reason of her pregnancy by another man, is unable to perform an important part of the contract into which she enters ; and any representation which leads to the belief that she is in a marriageable condition is a false statement of a fact material to this contract, and, on well-settled principles, affords good ground for setting it aside, and declaring the marriage void." Reynolds v. Reynolds, 3 Allen, 610, per Bigelow, C. J. And it seems to me that the fraud in this case is a more potent reason for a nullification of the marriage ceremony than it would be in a case where the man was ignorant of the pregnancy. In such a case the woman makes no representation, except as the con- cealment of her condition may tend in that direction ; but here a false statement is made, and an appeal based thereon to the better and kindlier nature of the man, who, moved thereby, undertakes to make restitution for his supposed wrong, and, in so doing, falls easily into the trap laid for him by a wanton and designing woman. He is certainly entitled to a release. The order of the court below overruling the demurrer is af- firmed. The record will be remanded, and the usual time allowed for the defendant to answer, if she desires. Campbell, C. J., concurred with Morse, J. 92 LAW OF HUSBAND AND WIFE. 8. CELEBRATION. DENISON V. DENISON. 35 MD. 361. (1872). Appeal from the Orphans' Court of Baltimore City. The case is sufficiently stated in the opinion of the court. The cause was argued before Bartol, C. J., Stewart, Bowie, Brant and Alvey, JJ. Alvey, J., delivered the opinion of the court. The case being before us, the record presents questions of great and most delicate interest to society, and which would seem to be presented for the first time for direct adjudication in this state. The appellee alleges herself to have been the lawful wife of Henry C. Denison, who lately died intestate, and, as his widow, entitled to the one-half of his personal estate ; the intestate dying without children. It is not pretended that there was ever any solemnization of marriage between the appellee and the deceased ; but it is alleged ■ by the appellee, that from the 17th of January, 1863, until the death of the intestate, he and she were husband and wife, they hav- ing mutually agreed frpm that time henceforth to be and regard each other as such. That, in pursuance of such agreement, they cohabited and lived together as man and wife; that the appellee was maintained and supported by the deceased, up to the time of his death, as his wife: and that they both acknowledged, recog- nized and acted towards each other in all things, as husband and wife, and were known, treated and reputed to be such, among their friends and acquaintances. Upon proof taken, the Orphans' Court decided that the ap- pellee had been lawfully married to the deceased, and that, as his widow, she was entitled to share in the distribution of his estate. It is from such decision that the present appeal is taken. Without any special reference to the evidence, as to whether the allegations of the appellee are fully proved, the first question that presents itself is, whether such marriage as is here set up and relied on, can be maintained by the laws of this state? It is contended on the part of the appellee that such marriage is goood and effectual at the common law, or rather by the canon law; and that, as we have adopted the common law of England, of which the canon law forms part, this marriage must be sus- tained, having been contracted by the parties, as it is alleged, per ESSENTIALS OF MARRIAGE. 93 verba de praesenti. This proposition, on the other hand, is con- troverted by the appellant, by whom it is contended, that such mar- riage, even if contracted as alleged, was not valid and binding, be- cause it was not duly celebrated according to the rites of any church, or religious denomination of any kind whatever ; and that the common law gives no sanction to any such marriages as that attempted to be established by the appellee. In order to determine this question, we shall, in the first place, endeavor to ascertain and show what the common law of England required to make a valid and binding marriage, prior to the Mar- riage Act of 26 Geo. II, Ch. 33 ; and, in the second place, what is required, either by the common or statute law of Maryland, in that respect. By the canon law of Europe, founded mainly upon the Roman civil law, prior to the Council of Trent, in the sixteenth century, the contract of marriage was regarded as simply of a consensual nature, only differing from other contracts in its being indissoluble even by the consent of the parties. In form, a contract per verba de praesenti, or a promise per verba de futuro cum copula, con- stituted a valid marriage, without the offices of a priest, till the de- crees of the Council of Trent, which required the intervention of the parish priest to give validity to the marriage. The promise per verba de futuro, when followed by carnal intercourse, was con- sidered as equivalent in legal effect to the contract per verba de praesenti. In the matrimonial law, as administered by the can- onist, it was a maxim, consensus, non concubitus facit nuptias; and this remains the law to the present day in some parts of Europe, where the civil and canon law prevail, and where the decress of the Council of Trent have not been accepted — as in Scotland. Dal- rymple v. Dalrymple, 2 Hag. C. Rep., 54. But the civil and canon laws, as such, never had force in Eng- land. They were regarded and accepted only as part of the com- mon or unwritten law. Blackstone, in speaking of the subordi- nate character of these laws, says, that "it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in som.e courts, are only subordinate, and leges sub graviori lege; and that, thus admitted, restrained, altered, new-modelled and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or un- written laws of England, properly called the King's Ecclesiastical Law." I Com. 84. And so Professor Wooddesson, in his Lec- tures on the Laws of England, (Lect. 5, p. 78), says: "Many of 94 LAW OF HUSBAND AND WIFE. our present ecclesiastical laws are undoubtedly of foreign extrac- tion, and some are entirely of English origin. But now they all alike depend, as to their general binding authority, on the same foundations as the whole body of our English laws, immemorial custom, and express Act of Parliament." The decrees of the Council of Trent, however, were never accepted or recognized to be of any force whatever in England. The civil and canon laws, therefore, have no operation in Eng- land, except only as they may tiave been incorporated into the sys- tem of the common law ; and in ascertaining what was the law of England in regard to the mode and manner of contracting mar- riage prior to or independently of the marriage Act of 26 George II., passed in i7S3,we do not appeal to the civil or canon law as such, but to the common law as a system peculiar to England and her institutions. What then, by the law of England, prior to the marriage Act, was the effect of an engagement of matrimony, such as is alleged to have been entered into by the parties here, merely per verba de praesentif or, in other words, a contract of present marriage, with- out any solemnization or celebration whatever? We can best answer this question by resorting to and quoting from some few standard authorities, which have been approved and repeatedly relied on by all the highest courts in England, as containing a true and correct expression of the law. Perkins, an author of high repute, who wrote in the time of Henry VIII. , in his Treaties on the Laws of England, Sees, 194, 195, 306, stated it as unquestionable law, that after a contract of marriage between a man and a woman, they were not one person in law, inasmuch as in case of the woman's death before the mar- riage solemnized between thpm, the man to whom she was con- tracted should not have her goods as her husband. And so again, he says, that if a man, seized of land in fee, make a pre-contract of matrimony with J. S. and die before the marriage is solemnised, she shall not have dower, for she never was his wife. Swinburne, an author of the time of Queen Elizabeth, in his Treatise on Espousals, Sec. 17, says: "Spousals de praesenti, though not consummate, be in truth and substance very matri- mony. Although by the common law of this realm (like as it is in France and other places), spousals, not only de futuro, but also de praesenti, be destitute of many legal effects wherewith marriage solemnized doth abound, whether we respect legitimation of issue, alteration of property in her goods, or right of dower in the hus- ESSENTIALS OP MARRIAGE. 95 band's lands." And again he says : "Other effects there be of spousals, whereof some respect the issue or children begotten be- fore celebration of the marriage betwixt those which have con- tracted spousals, and some have relation to their lands and goods. Concerning their issue, true it is that by the canon law the same is lawful ; but by the laws of this realm, their issue is not lawful, though the father and the mother should, afterwards celebrate marriage in the face of the church. Likewise concerning lands, by the canon law the foresaid issue may inherit the same ; but it is otherwise by the laws of this realm, for, as the issue is not legiti- mated by subsequent marriage, no more can he inherit his father's land ; and as he cannot inherit, no more is she to have any dower of the same lands, for whereas, by the laws of this realm, a mar- ried wife is to have the third part of her husband's lands, holden in fee-simple or fee-tail, either general or special, for her dower after her husband's death, during her life, so that she be above the age of nine years at her husband's death, yet, a woman having con- tracted matrimony, if the man to whom she was betrothed die be- fore the celebration of the marriage, she cannot have any dower of his lands, because as yet she is not his lawful wife, at least to that effect. Concerning goods, the like may be said of them as hath , already been spoken of lands, that is to say, that although by the civil and canon laws, where the man doth gain any of the woman's goods, or the woman gain any of the man's goods, by reason of marriage, spousals de praesenti or de futuro, consummate with carnal knowledege, have the same effect as hath matrimony solemnized, yet by the laws of this realm it is other- wise; so that neither spousals de praesenti, neither spousals de futuro consummate, do make her goods his or his goods hers ; and hence it is that a woman contracted in matrimony, dying before the celebration of the marriage, may make her testament, and dispose of all h^r goods at her own pleasure, which after solemnization of the marriage she cannot do without his license and consent. And on the other side, the man dying intestate before celebration of the marriage, the woman to whom he was betrothed surviving cannot obtain the administration, of his goods as his widow, which other- wise, the marriage being solemnized, she might do. And the like I read to be observed in divers other countries, as in France and Saxony, where neither he nor she gain any part of the other's goods by being affianced, unless the marriage be solemnized, if not consummate also." The principle stated by Perkins and Swinburne, as to the in- 96 LAW OP HUSBAND AND WIFE. choate nature of the marriage contract per verba de praesenti at the common law, is distinctly recognized by Lord Hale, in a manu- script note, which was incorporated by Mr. Hargrave among the notes to Co. Litt., 33 a. This distinction between the common law of England and the canon law of Europe, unaffected by the decrees of the Council of Trent, as to the force and effect of the contract of marriage per verba de praesenti, has been very distinctly recognized to exist by the most distinguished Judges of the Ecclesiastical Courts of Eng- land. In the case of Scrimshire v. Scrimshire, 2 Hag. C. R. 395, a cause for the restitution of conjugal rights, decided in 1752, by Sir Edward Simpson, that learned judge, in declaring against the legal- ity of the marriage in that case, said : "And I apprehend, unless per- sons in England are married according to the rites of the Church of England, they are not entitled to the privileges attending legal marriages, as thirds, dower, etc." So, in the case of Dalrymple v. Dalrymple, before referred to. Sir William Scott, in the course of the celebrated judgment delivered by him in that case, involving the marriage' law of Scotland as distinguished from the law of England, after citing Swinburne in support of his position, said, that "the common law had scruples in applying the civil rights of dower and community of goods and legitimacy, in the cases of these looser of species of marriage," meaning the marriages recog- nized by the civil and canon law, as it prevailed in Scotland, unaf- fected by ecclesiastical decrees. Perliaps the law is found nowhere better or more clearly stated than in Park on Dower — a very learned and reliable author- ity. He says, page 8, that, "By the ecclesiastical law, as it stood previous to the Marriage Act (26 George H., C, 33), and as it still stands as to cases falling within the exceptions of that act, the ex- istence of matrimony involved a two-fold consideration ; compris- ing, within that general name, the distinct facts, ist, the espousals, or personal contract between the parties to become husband and wife ; and 2ndly. the celebration of that contract in facie ecclesiae. The espousals, or matrimonial contract, which, though requiring no set form or ceremonial, was the substance or bond of the nuptial re- lation, was of two kinds, viz. : per verba de praesenti, or per verba de future. The former of these, in the contemplation of the ec- clesiastical law, amounted to very matrimony, the contract being indissoluble by any agreement of the parties ; and rendering any subsequent marriage of either of them with any third person abso- lutely void. But though espousals, or affiance, as it is sometimes ESSENTIALS OF MARRIAGE. 97 termed, was thus the very substance of matrimony, and even by the temporal lawyers, the terms affiance and marriage were often pro- mitcuously used, yet it does not seem to have been allowed that espousals alone, unaccompanied by celebration, should confer the civil rights of dower or legitimacy; but to obtain these temporal advantages it was requisite that the contract of matrimony should be celebrated in the face of the church. And though in one case a woman who had made a contract of marriage per verba de prae- senti, buc whose marriage had not been celebrated till after the alienation of the husband, recovered her dower upon the ground that the alienation of the land by the husband in the interval be- tween a sentence of the ^Ecclesiastical Court for execution of the contract, and the celebration of matrimony pursuant to that sen- tence, was a fraudulent alienation, quoad the wife, yet this recov- ery was reversed coram rege et concilo, because neither the con- tract nor the sentence was a marriage by the temporal law, and so the husband had no seisin during his marriage with the demand- ant." The author cites the note of Lord Hale, to Co. Litt. 33 a. From all the common law authorities it would appear that the contract per verba de praesenti, or per verba de futuro cum copula, could be carried into effect and execution by the Ecclesiastical Courts. But until such contract was sanctioned by religious cere- mony, duly performed, the marriage was incomplete, and did not confer the civil rights incident to" the married state. In 1843, the celebrated case of Reg. v. Millis, 10 CI. & Fin., 534, involving the legality of a marriage not celebrated according to the rites of the Church of England, was brought into the House of Lords, on appeal from the Queen's Bench in Ireland. It was a case to which the Marriage Act of 26 George II. did not apply. The appellee, Millis, having contracted two marriages, and being indicted for bigamy, the question was whether the first marriage was legal and complete, not having been celebrated according to the rites of the Church of England, to which the accused belonged. The case was most elaborately argued, both at the bar and by the judges who participated in the decision. All the learning upon the subject was fully developed and illustrated. The opinion of the judges of England was taken, and by their unanimous opin- ion, as delivered by Chief Justice Tindall, it was declared "that by the law of England, as it existed at the time of the passing of the Marriage Act, a contract of marriage per verba de praesenti was a contract indissoluble between the parties themselves, afford- ing to either of the contracting parties, by application to the Spirit- 98 LAW OF HUSBAND AND WIFE. ual Court, the power of compelling the solemnization of an actual marriage; but that such contract never constituted a full and com- plete marriage in itself, unless made in the presence and with the intervention of a minister in holy orders." The judgment of the court below being against the validity of the first marriage, and the law Lords being equally divided in opinion, the rule "semper praesumitur pro negante'' applied, and judgment was affirmed. The same question, but in a different form, was again pre- sented to the House of Lords in 1861, in the case of Beamish v. Beamish, 9 H. L. Cas., 274 ; and by the unanimous opinion of the judges and the law lords who heard the case, the decision in Reg. V. Millis was reaffirmed. In these cases will be found all the learning upon the subject of what is called canon law marriages, as distinguished from marriages celebrated with religious solemn- T Such then being the law of England upon this subject, prior to and independently of the Marriage Act of 26 George II, which was never adopted in this state, in what does that law differ from the law as it has heretofore existed and still exists, in this state ? It is true the common law of England has been adopted by the people of this state ; but only so far as it could be made to fit and adjust itself to our local circumstances and peculiar institu- tions. The ecclesiastical polity of England forms no part of the common law as we have adopted it. We have in our system no tribunal, as in England, clothed with power and jurisdiction to en- force the solemnization of marriages between parties contracting per verba de praesenti. Unless, therefore, there be something in the law of this state, apart from the common law of England, to render such contracts valid without solemnization, it follows, ne- cessarily, that they can, at most, only be valid to the extent that they are good at the common law without solemnization ; and, as we have seen, such unsolemnized contracts are incomplete, and are not effectual to confer legitimacy upon the issue, nor the rights of property upon the parties — a right that is attempted to be enforced in this case. But is there any principle or provision of law peculiar to this state, that would render valid and effectual the marriage here set up, so that it would confer the rights of property and carry the other legal incidents of a valid marriage ? We know of none. On the contrary ,[we think we are safe in saying, that there never has been a time in the history of the state, whether before its indepen- dence of Great Britain or since, when some ceremony or celebra- ESSENTIALS OF MARRIAGE. 99 tion was not deemed necessary to a valid marriage. In the early days of the province it was not absolutely necessary that a minis- ter of religion should officiate — a judge or a magistrate could per- form the ceremony — but still, in all cases, some formal celebra- tion was required. Act 1715, Ch. 44, Sec. 24. The whole sub- ject was particularly regulated by the Act of 1717, Ch. 15, so far as the members of the Church of England were concerned. Per- sons of other denominations were allowed to be married according to preexisting law. 13 ut these acts clearly show that no such mar- riage as that here alleged to have been contracted was ever con- templated by the legislature, or was ever supposed for a moment to be good. pThe Act of 1777, Chap. 12, concerning marriages, and which forms Art. 60, of the Code, plainly indicated the under- standing of the legislature to be that no marriage was to be there- after good and valid, unless celebrated by some religious rites and ceremony. It expressly provided that the rites of marriage should not be celebrated by any person within this state, unless by some ordained minister, or in such manner as was used and practised by the Society of Quakers. It moreover provided that no person within the state should marry without first obtaining a license, to be directed to a minister or other person qualified by law to cele- brate marriage in the state ; or, until after banns published in some house of religious worship, or by a minister, as therein directed ; and it prescribed a penalty upon parties going out of the state to be married contrary to the provisions of the act. Why this latter provision, if valid marriages could be contracted in the manner contended for by the counsel for the appellee ? It is true, the act contains no express prohibition or declara- tion of absolute nullity of marriages contracted per verba de prae- senti; but it is plainly to be perceived that such marriages, if al- lowed, would contravene the spirit and policy of the act. The im- plication from the provisions of the act are exceedingly strong against such marriages, and the practice and custom of the people of the state have been so universally in conformity with what would appear to have been the policy and requirerrient of the law, that such custom has acquired the force and sanction of law ; even though a question could not be made as to the technical construc- tion of the act itself. Besides, as we have seen, an unsolemnized contract of marriage, at the common law, is inchoate merely, or in- complete, being ineffectual to confer many of the most important rights of the matrimonial state ; and to supply the defect of solemn- ization, positive law was required. Such positive law has never 100 LAW OP HUSBAND AND WIFE. been provided, and, consequently, a marriage contracted in this state merely per verba de praesenti, or per verba de futuro cum copula, has no sanction in our law, whatever may be the law upon this subject elsewhere. To constitute lawful marriage here there must be superadded to the civil contract, some religious ceremonv. The law, however, does not prescribe the form, nor according to the rites of what church the marriage shall be celebrated_J The case of Cheseldine v. Brewer, i H. & McH., 152, decided in 1739, relied on by the appellee, is not entitled to the authority attributed to it. It was a case occurring at the Assizes for St. Mary's County, and it is not shown by what judges it was decided, nor upon what ground the decision on appeal proceeded. It would appear that the question raised was simply as to the effect of evi- dence to give rise to the presumption of legal marriage. The case is very shortly and imperfectly reported, and there is nothing in it to give it the force of authority. (So far as we are informed, this is the first instance in which a marriage contract of the nature of the one here set up, alleged to have been made in this state, has ever been attempted to be maintained, as constituting a valid marriage, in any of our courts. These loose and irregular contracts, as a general thing, derive no support from morals or religion, but are most generally founded in a wanton and licentious col^itation. Hence the law of the state has given them no sanction^ In this case, however, if the law were different from what it is, the claim of the appellee could not be sustained. The appellee is objected to as an incompetent witness, and without her testi- mony, the evidence is insufficient to prove clearly the alleged mar- riage. The other alleged contracting party being dead, and this being a controversy with his administrator, the appellee is clearly incompetent under the Act of 1864, as modified by the Act of 1868. The appeal being from the Orphans' Court, exceptions to the admissibility of evidence or the competency of witnesses are not required to be taken in the court below, but may be taken and insisted on in this court. Stewart v. Pattison, 8 Gill, 46. In no view therefore could her pretensions be supported. The decision of the Orphans' Court will be reversed, and the cause remanded that the petition of the appellee be dismissed. Order reversed and cause remanded. ESSENTIALS OF MARRIAGE. 101 HUTCHINS V. KIMMELL, 31 MICH., 126. (1875). Error to Jackson Circuit. Higby & Gibson, for plaintiff in error. Crane & Montgomery, and David Johnson, for defendaht in error. COOLF.Y, J. Kimmell sued Hutchins in case for criminal conversation with Philopena Kimmell, the wife of the plaintiff. Having recovered judgment, the case is broiight here on exceptions to various rul- ings of the circuit judge. 1. It is objected that the judge permitted evidence to be given of the offense charged before any proof had been made that plaintiff and the woman were husband and wife. But this only relates to the order of proof, and was within the discretion of the circuit judge. Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 99. 2. It is also objected that evidence was received of the con- duct of the plaintiff the evening and morning following the com- munication to him of his wife's offense. We see no error in this. The purpose was to show how he was affected by the disclosure, and the proof would naturally and properly bear upon the question of damages. 3. Complaint is also made that certain documents in a for- eign language were permitted to be translated in the hearing of the jury before the court had decided upon their admissibility. But this, whether proper or not, became immaterial when the court af- terwards received them in evidence. 4. The evidence of marriage relied upon by the plaintiff was a marriage of John Gottlieb Kimmell and Sabrina Philopena Kim- mell, born Utz, and the court was requested to instruct the jury that there was no evidence of the identity of these parties with the plaintiff and the woman he claimed to be his wife. The request was refused. The evidence that plaintiff's full name was John Gottlieb Kimmell was clear and undisputed, but there was no evi- dence of the identity of the woman with Sabrina Philopena Kim- mell, except that she was known by the name of Philopena Kim- mell, and that her maiden name was Utz. But in these were cer- tainly some evidences of indentity, and however slight they might be, their weight was for the jury. 5. The only other assignments of errdr which ieem to us to require attention are those which relate to the proof of the mar- 102 LAW OF HUSBAND AND WIFE. riage. The marriage was alleged to have taken place m the king- dom of Wurtemberg, and the evidence of it consisted of the follow- ing certificates : (a) The certificate of Ferdinand Haug, descrbing himself minister of the Evangelist Lutheran Church at Winesbergh in the kingdom of Wurtemberg, that on the register of his religious de- nomination of which he has charge there is recorded the marriage of John Gottlieb Kimmell and Sabrina Philopena Bauchle, born Utz, performed by the minister Shilling, pastor of the society, who had lawful authority to perform the same. {b) The certificate of the judge of the High Court of Wines- bergh of the kingdom of Wurtemberg, that the certificate of the minister Haug is genuine and entitled to credit, and that the mar- riage certified to was "in due form and properly solemnized." (c) The certificate of the chief chancellor of the Department of Justice, in attestation of that of the judge of the High Court of Winesbergh. To this it was also added the certificate of the American consul, but that is immaterial. All these certificates were objected to when offered, on var- ious grounds, which in the argument in this court are narrowed down to the following : first, because they were not accompanied by any proof of thelEoreign law regulating marriages in Wurtem- berg; and, second, because it is not sufficient that a ceremony was performed purporting to be a marriage, unless it is also shown that such ceremony was recognized by, and in accordance with the law of the country where it took place. We take these objections as they are presented in the brief of counsel for the plaintiff in error, rather than as they were made below, because we have a right to suppose that as thus given they point out all the error in law sup- posed to have been committed in their reception, and that they have been framed with deliberation, with a view to calling our attention to the precise point which is designed as the subject of our examination. It will be perceived that no point is made upon the proof, by these certificates or otherwise, of the fact of a ceremony of marriage between the parties named in the minister's certificate, but the objections are narrowed to this ; that there is no proper and legal showing of what was the law of Wurtemberg, on the subject of marriage, and consequently it does not appear that the ceremony perfected a legal marriage. The point is that proof of the ceremony alone was not proof of the marriage until, the law was shown which would make it such. It is not disputed that in a case of this nature an actual mar- ESSENTIALS OF MARKIAGE. 103 riage must be proved. Such evidence of cohabitation and reputa- tion as would be sufficient in other qivil actions will not suffice where it is sought to fix upon the woman a charge of adultery. Addison on Torts, 698 ; 2 Green. Ev., § 461 ; i Bish. Mar. and Div., § 442, 4th ed. But had the supposed marriage taken place in this state, evidence that a ceremony was performed ostensibly in cele- bration of it, with the apparent consent and co-operation of the parties, would have been evidence of a marriage, even though it had fallen short of showing that the statutory regulations had been complied with, or had affirmatively shown that they were not. Whatever the form of ceremony, or even if all ceremony was dis- pensed with, if the parties agreed presently to take each other .for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to consti- tute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations. This has become the settled doctrine of the American courts ; the few cases of dissent or apparent dis- sent being borne down by a great weight of authority in favor of the rul'e as we have stated it. Fenton v. Reed, 4 Johns., 52 ; Jack- son V. Winne, 7 Wend., 47 ; Starr v. Peck, i Hill, 270 ; Rose v. Clark, 8 Paige, 574; Matter of Taylor, 9 Paige, 611 ; Clayton v. Wardell, 4 N. Y. 230; Cheney v. Arnold, 15 N. Y. 345 ; Gara v. Eisonlohr, 38 N. Y. 296; Pearson v. Howey, 6 Halst, 12; Hants V. Sealy, 6 Binn., 405 ; Commonwealth v. Stump, 53 Penn. St., 132 ; Newbery v. Brunswick, 2 Vt. 151 ; State v. Rood, 12 Vt. 396 ; Northfteld v. Vershire, 33 Vt. no; Duncan v. Duncan, 10 Ohio, N. S. 181 ; Carmichael v. State, 12 Ohio, N. S. 553 ; State v. Pat- terson, 2 Ired., 346 ; Londonderry v. Chester, 2 N , H. 268 ; Keyes V. Keyes, 2 Post. 553; Bashaw v. State, i Yerg. 177; Grisham v. State, 2 Yerg. 589 ; Cheseldine v. Brezver, i H. & McH. 152 ; State V. Murphy, 6 Ala. 765 ; Potier v. Barclay, 15 Ala. 439; Dumaresly v. Fishly, 3 A. K. Marsh. 368 ; Graham v. Bennet, 2 Cal. 503 ; Case V. Case, 17 Cal. 598; Patton v. Philadelphia, i La. Ann. 98; Holmes v. Holmes, 6 La. R. 463; Hallett v. Collins, 10 How. 174. Such being the law of this state, it remains to be seen whether the rule can be applied to a marriage contracted in a foreign coun- try, in the absence of any evidence showing what is the law on the subject of marriage in such foreign country. The general rule of law is, that a marriage valid where it is celebrated is valid every where, but the converse to this is equally general, that a marriage void where it is celebrated is void every 104 LAW OP HUSBAND AND WIFE. where. As every country is at liberty to make regulations of its own on the subject which other countries must respect, and by which they must in general judge of the validity of a marriage contracted where the regulations prevail, and as these regulations may and often do require something more than the mere consent of the parties, it may follow in any case tjiat a presumption of mar- riage, based upon such facts merely as would be sufficient to es- tablish one if. contracted here, would be a presumption against the fact, and would support a marriage which the local law would con- demn, and the local courts would refuse to recognize or support. All presumptions, however, are liable to be contrary to the fact, but they attend us at every point in our examinations of facts, and it is impossible to dispense with them. They do not in general preclude the facts being brought forward to overthrow the pre- sumptions, but they supply imperfections where the facts are not fully developed, and they determine in many cases which party shall take upon himself the burden of showing what are the facts bearing upon the point in controversy. And in the case before us the question is not whether the foreign ceremony of marriage, fol- lowed by cohabitation, makes out beyond dispute a valid marriage, but whether it does not show one prima facie valid, so as to call upon the party disputing its validity to point out the impediments if any, which rendered it ineffectual. A formal ceremony of marriage, whether in due form or not, must be assumed to be by consent, and therefore prima facie a con- tract of marriage per verba d? presenti. Fleming v. People, 27 N. Y. 329. And when the local law is not shown, the argument in its favor is that marriages between parties capable of contract- ing it is, common right, and valid by a common law prevailing throughout Christendom. Regulations restrictive of this right, or imposing conditions upon it, are exceptional ; they depend on local statutes, and, as in other cases of exceptions, if one claims that a case falls within them, the burden is upon him to show the fact. Prima facie a good marriage is shown when the contract is proved with cohabitation following it, and we cannot assume that there are regulations restrictive of the common right until they are shown. Whart. Confl. L., §§ \yo, 173 ; Bish. Mar. & Div. §§ 521- 528, 4th ed. Upon this question it has been said by Chief Justice Parker, of Massachusetts, that a marriage de facto being proved, it is but reasonable that it should be presumed to be according to the laws. "As if a marriage were proved to have taken place in France, for instance, it should seem fit to require the party who ESSENTIALS OF MARRIAGE. 105 denies the marriage to prove its invalidity." Raynham v. Canton, 3 Pick. 297. And in the case of People v. Calder, 30 Mich, it was said of a marriage contracted in another state: "When the evi- dence shows that the parties appeared at a church, and that the officiating minister there pubUcly and in the presence of other per- sons in attendance, performed a ceremony of marriage between such parties, and further, that the parties appeared to regard them- selves as then married, it is fairly to be presumed, in the absence of any thing to the contrary, that the ceremony was regular and legal, although the evidence fails to show what words were used by the parties or the minister, or the particulars of the 'ceremony, or what specific kind of ceremony was or would be according to the forms, usages' or customs of such church." This is likewise the doctrine of Steadman v. Powell, i Add. 58, where the proof of an Irish marriage did not go beyond that which was made in this case, and did not negative the fact that the celebration might have been by a popish priest, which, by the local law, would have ren- dered it invalid. It has been held in this state that the common law as it exists among us will be presumed to prevail in a foreign country in the absence of proof to the contrary. High, Appellant, 2 Doug. Mich. 515 ; Crane v. Hardy, i Mich. 56; and though it may be questionable if this doctrine is to be applied universally, it can- not be disputed that the reason of it is applicable to all marriages celebrated in Christian countries, in which it may properly be as- sumed that a general common law on the subject of marriage still prevails. Whart. Confl. I.. § 171. And as has been well said, the inconvenience of adhering to more rigid rules in the proof of for- eign marriage, would, in a country so largely populated by immi- grants as is ours, be peculiarly great, and put courts and litigants to useless trouble and expense in every instance. Bish. Mar. & Div. § 528, 4th ed. Polygamous and incestuous marriages celebrated in countries where they are permitted, are nevertheless treated as invalid here, "becattse they are condemned by the common voice of civilized na- -tions, which establishes a common law forbidding them ; and the same reasoning which condemns them must sustain the m^riages by mere consent which the same common law permits and sanc- tions. Whart. ConH. L. § 180. And especially should this be the case when the parties, after taking such steps abroad to constitute a marriage as would be sufficient under our laws, remove after- wards to this country, and in apparent reliance upon the marriage, and the protection our laws would give it, continue for many years 106 LAW OF HUSBAND AND WIFE. to live together as husband and wife, recognizing, as there is every reason to beUeve they did, the validity and binding obligation of the marriage for all purposes. If these views are correct, proof of the ceremony of marriage did prima facie establish it, and the court did not err in holding that it was no necessary to prove the foreign law before putting the certificates in evidence. The judgment of the Circuit Court must be affirmed, with costs. The other justices concurred. PEET V. PEET, 52 MICH. 464. (1884). Error to Clinton. (V. H. Smith, J). Jan. 17.— Jan. 22. Appeal from probate allowance against the estate of Lucius H. Peet. Claimant brings error. Reversed. CooLEY, C. J. Mary Peet, claiming to be the widow o£ Lucius H. Peet, late of Clinton County, deceased, filed in the Pro- bate Court for that county, where his estate was being adminis- tered, a claim to an allowance as such widow. The heirs con- tested her claim upon the ground that she was never legally mar- ried to the decedent. The Probate Court made the allowance prayed for and the heirs appealed. In the Circuit Court the judge heard the case without the as- sistance of a jury, and made findings of the facts. From these findings he concluded as matter of law that the claimant was not the, widow of the decedent, and gave judgment against her. The case is brought to this court by writ of error. The second of the judges's findings of fact is as follows: "Mary Peet, the claimant, and Lucius H. Peet were married February 28, 1858, and lived and cohabited together as husband and wife until some time in November, 1880, when Lucius H. Peet died. In this case there was an actual marriage ceremony accord- ing to the laws of this state. This finding, it will be seen, makes out an apparent right in the claimant to the allowance asked for, and we have only to see whether in the other findings there is anything to overcome this prima facie right. The other findings are as follows : "David and Deborah Belcher lived together as husband and wife, previous to 1847 or 1848, for about twenty years, and had ESSENTIALS OP MARRIAGE. 107 thirteen children, and ceased entirely living together in 1847 or 1848, he, David, going away from Deborah sometimes and coming back when he wished, there being no evidence, however, that such absences were intended to be a separation, or anything more than occasional absences from home. They had some trouble between one another while living together as husband and wife. The repu- tation as to their being husband and wife was divided and no act- ual marriage ceremony is shown between David and Deborah Bel- cher. David Belcher died in i860. "Lucius H. Peet and Deborah Belcher were married in Feb- ruary, 1855, and lived together as husband and wife about two and one-half years. In this case there was an actual marriage cere- mony according to the laws of this state. "Deborah Belcher was living at the time of the marriage of Lucius H. Peet and Mary Peet." These are the facts from which the circuit judge deduced the conclusion of law that the claimant was never legally married to the decedent. We can not assent to this conclusion. The marriage of the claimant was indisputably legal, unless Lucius H. Peet had at the time of its solemnization a -lawful wife living. He had gone through the form of marriage with Deborah Belcher, but after a time had abandoned her, and it is inferable that he did so because he had become convinced she had in David Belcher a lawful husband living. If she had, he was justified in leaving her, and in entering into marriage relations with the claim- ant. The whole case therefore turns upon the question whether it appears that David and Deborah Belcher were husband and wife. It is not shown that any marriage ceremony ever took place be- tween them ; neither is the contrary proved ; there is simply an ab- sence of any evidence on that point. But an actual ceremony of marriage is not essential to the establishment of the relation of hus- band and wife ; it is sufficient that a man a'nd woman of due com- petency, and in respect to whom no impediment exists, consent to take each other as husband and wife, and actually cohabit as such. The case of Hutchins v. Kimmell, 31 Mich. 126 ; s. c. 18 Am. Rep. 164, determines this for this state, and refers to many decisions in other states to the same effect. Now the circuit judge finds that David and Deborah Belcher lived together as husband and wife for about twenty years and had thirteen children. If they were living together as husband and wife, their relations were not meretricious. The finding is equiv- 108 LAW OP HUSBAND AND WIFE. alent to a finding that they had taken each other for husband and wife ; and is therefore a finding of the fact of the marriage. The circuit judge attached importance to the fact that the rep- utation as to these parties being husband and wife was divided; that is, we suppose, that some people believed and said they were married and others believed and said the contrary. Reputation is sometimes very important when a marriage is in doubt; but it is ■only one of the circumstances from which the true relations of the parties, as legal or otherwise, may be inferred ; it is not in itself a fact which is at all important to the validity of the relation. When a marriage in fact is made out, whether by formal ceremony or otherwise, it must stand, though the whole community say and be- lieve it is illegal. But upon doubtful facts the court ought to pre- sume a lawful marriage rather than a notorious act of immorality. Starr v. Peck, i Hill 270, 272. It is suggested on behalf of the heirs that the circuit judge did not intend to find that David and Deborah Belcher were mar- ried, and did not understand his finding on that subject to bear such a construction. That being so, we ought, it is said, to look into the evidence, and if it is evident from that that a conclusion against marriage should be drawn, the case should go back for a new trial. We have looked into the evidence and are clearly of opinion that a marriage ought to have been found. There is really nothing to raise doubts about it, except that some of their acquain- tances did not believe they were married. On much less evidence than the living together for twenty years, and the bringing of thir- teen children into the world, marriage has been inferred even in cases where the cohabitation was shown to be meretricious in its origin. Fenton v. Reed, 4 Johns. 52 ; s. c. 4 Am. Dec. 244 ; Taylor V. Swett, 3 La. 33; s. c. 22 Am. Dec. 1^6; North v. North, i Barb. Ch 241, s. c. 43 Am. Dec. 778 ; Caujolle v. Ferrie, 23 N. Y. 90. In this case there was no such showing. The order of the Circuit Court must be set aside and that of the Probate Court affirmed, and the claimant must recover costs of all the courts. The other justices concurred. III. PROMISE TO MARRY. HOMAN V. EARLE, 53 N. Y. 267. (1873). Appeal, from judgment of the General Term of the C;ily Court of Brooklyn, affirming a judgment in favor of plaintiff en- tered upon a verdict ; also affirming an order denying a motion f or a new trial. This action was brought to recover damages for a breach of an alleged promise of marriage. The facts sufficiently appear in the opinion. Church, Ch. J. There are three classes of errors insisted upon by the defendant's counsel : i . Errors in receiving and re- jecting evidence; 2. Errors in the charge of the court; and 3. Errors in not granting the motion to dismiss the complaint, made at the close of the plaintiff's evidence, and also at the close of the whole case. The plaintiff testified that at the first visit of the defendant,, after his wife's death, he took out a memorandum book and stated some requests of his wife which he had noted down, and said "that there was something he could not tell us now, that we would prob- ably know some day, that passed between them four days previous. to her death ; he said it was known to any living person but him- self ; we would probably know what it was some day." The de- fendant , when on the stand, was asked what it was that he in- tended to tell plaintiff, which was objected to, and the objection sustained and an exception taken. The defendant also offered to^ testify that his wife never mentioned the name of the plaintiff in connection with marriage, which was rejected. There was no error in rejecting this evidence. The only relevancy of the cir- cumstance testified to by the plaintiff was, in connection with other circumstances, to show that the defendant intended to convey the idea to the plaintiff that his wife had requested or consented to his marrying her, which would tend to explain and characterize his subsequent acts and declarations. It was not material whether such request or consent was in fact made or given, but only whether the defendant gave the plaintiff so to understand, and this; 110 LAW OF HUSBAND AND WIFE. could only be shown by what he said and did, and not by the fact itself. The conversation of the defendant with Dr. Duryea had not been called out by the plaintiff so as to entitle the defendant to it. The other exceptions to evidence are clearly untenable. There are several exceptions to thf charge and to refusals to cliarge, but they relate mainly to a single point. It is claimed as a vital error that the judge charged that such a contract need not be expressed, but might be implied from the facts and circumstances. If this proposition had been stated in this brief form, without ex- planation, it might, perhaps, have been open to criticism. In some cases the law implies a contract from certain acts of a party ; as if A orders a quantity of merchandise, the law implies a promise to pay for them. In actions for breach of promi.--e of marriage, be- fore parties were allowed to be witnesses for themselves, the con- tract was often inferred or implied from proof of such circumstan- ces as usually attend an engagement. Frequent visits, receiving the defendant by the family as a suitor, presents, preparations for the wedding and the like ; these being the usual accompaniments of an engagement, jurors were allowed to infer from them that a contract had been made. This rule permitted an implication from what was proved, of a contract not proved. Many of the cases cited on both sides refer to this rule. When the parties themselves are upon the stand and state all that was said and done, there is no room for inference that something else was said oi done, but the question is whether the facts proved are sufficient to constitute a contract. In determining this question, however, while we may not imply the contract, strictly speaking, we may infer the mean- ing and intention of the parties. The charge of the learned judge upon this point clearly shows that he used the word express, and i'nplied with reference to the mode of proof, and not to the con- tract itself. He said : "But in this particular case there must be a contract, there must have been an engagement to marry, and there must be evidence to justify you in finding that such an en- gagement existed, and existed as a matter of fact ; that it was mu- tual " Again, "An express contract is one declared in words or in writing." Again, "Now you will perceive, gentlemen, that I intend to instruct you that in an engagement to marry the contract can be entered into between lovers without his asking in words the question whether she will marry him, and without her answering in words that she will do so." He also instructed them to take all the acts and declarations of the parties and determine whether the defendant intended to propose himself, and intended that she . PROMISE TO MARRY. Ill should SO understand it, and that she accepted it. Again, the de- fendant's counsel requested the court to charge that the evidence of acts of the defendant can only be considered that such a promise was expressly made. The case states that "the court refused so to charge by reason of the word 'expressly' being contained in the request, that word 'expressly' being understood to mean the formal utterance of certain words ; if that word be not limited to such meaning, the court accepted the proposition involved in the request as correct ; there must have been a contract or promise sufficiently disclosed or expressed to fix the fact that they were to marry as clearly as if put in the formal words." The charge could not have been misunderstood ; the substance of it was that a mutual contract to marry was requisite to sustain the action, but that no particular form of words was necessary to constitute it. It was sufficient if the acts and language were such as the parties understood and in- tended as an engagement to marry. This is the correct rule of law as to all contracts. There are no set expressions required. If such language is used as to show that the minds of the parties meet, it is in law an agreement. The language used in making contracts depends upon the subject-rpatter, the custom of tran- sacting the particular business and other circumstances. If real estate or personal property is to be purchased, we would expect directness and more or less particularity, while in Wall street mill- ions of property are transferred daily by a few words quite unin- telligible to those not conversant with the business. The sale of a "put" or a "call" is as expressive and as well understood as if writ- ten out in detail. Contracts of marriage are unlike all others. They concern the highest interests of human life, and enlist the tenderest sympathies of the human heart, and the acts and declarations done and em- ployed by parties in negotiating them are often correspondingly delicate and emotional. As matter of law the learned judge was clearly right in holding th^t no formal language is necessary to constitute the contract of marriage. If the conduct and declara- tions of the parties clearly indicate that they regard themselves as engaged, it is not material by what means they have arrived at that state.' The authorities both in this country and in England estab- lish this doctrine. Hutton v. Mansell, 6 Mod. 172 ; Hickey v. Campion, 20 Weekly R.,- 752 ; 6 Cow. 254; 8 Barb. 323 ; 38 Barb. 117; 21 N. H. 586; 30 N. Y. 285; S.Wils. & Shaw, 114; 2 Dow. & Clark, 282. It will be observed that we are not now considering what facts 112 LAW OP HUSBAND AND WIFE. are sufficient to justify the inference of a marriage contract, but only the question of law, whether formal, express terms are re- quired, or whether the inference may be drawn from all the cir- cumstances. The learned judge did not instruct the jury as to v/hat particular facts would justify the finding of a contract, but left the whole case to them, with instructions that to sustain the ac- tion a contract must be found, and that express formal words were not necessary. This as matter of law was not error, if the judge was justified in submitting the case to the jury at all, which will be hereafter considered. I I agree with the learned counsel for the defendant that to con- stitute a promise of marriage substantial proof should be required of the fact. In the case of tioneyman v. Campbell (5 Wils. & Shaw, 144 ; 2 Dow. & Clark, 282), cited and very much relied upon by the defendant's counsel, the lord chancellor has, I think, cor- rectly, stated the law upon the subject. The proposition of the opinion are : i. That the contract may be proved by the direct or by circumstantial evidence. 2. That there must be a serious promise, intended as such by the person making it, and accepted by the person to whom it was made. 3. That mere courtship or even an intention to marry is not sufficient to constitute a contract of marriage. These propositions are entirely sound and do not conflict with the law of the court in this case. The opinion does not attempt to define what circumstances will be deemed sufficient nor from what acts or language a serious promise may be inferred. True, it holds, and I think correctly, that neither courtship nor a mere intention is alone sufficient, but the chancellor says : "But courtship is a most material fact in the case when you are examin- ing whether from the conduct of the parties it appears that a prom- ise had actually passed between them." So, while it is plain that an intention to make a contract is not a contract, yet if such inten- tion is so expressed as that both parties understand it to be a prom- ise, and it is accepted as such, it is as binding as if made in any other form. Parties may select their owa language, and if from that and their conduct a legitimate inference may be drawn of their intention and understanding, such intention must be carried out. The expressions in some of the cases, that a contract may be in- ferred from devoted attention and apparently exclusive attach- ment, have not been generally adopted by the courts. (15 Mass. I, note.) The comments of the judge upon the testimony of witnesses who professed to state the declarations of the plaintiff were not the PROMISE TO MARRY. 113 subject of a legal exception. These observations related to the dif- ficulty of repeating the precise words of a conversation, and sug- gested caution in adopting such words, and whether just or not, they violated no rule of law. The motion for a nonsuit was based upon the ground that no contract of marriage had been proved, and if it had, it was released and discharged by the letter of the 29th November, 1870. If there was no evidence to prove a contract, or if the evidence was of a character that a verdict for the plaintiff should have been set aside as against evidence, it was error to submit it to the jury, but if any construction of the evidence would justify a verdict, it was proper to submit the case to the jury. In that case the verdict is not final, but may be reviewed by the Special and General Terms of the court below, but this court has no such power. We can only de- termine questions of law. In considering this point, we are re- stricted to the question whether there is any evidence which would warrant a finding for the plaintiff. If there is such evidence, al- though had we power to pass upon the fact we should find other- wise, we cannot disturb the verdict. The General Term is the final tribunal upon questions of fact tried by a jury . The question, therefore, is whether, taking the most favorable view of the evidence for the plaintiff, as the jury may have done, there is sufficient to justify them in finding a contract of marriage, or rather whether their so finding is an error of law; if only an error of fact, we cannot review it. So much depends upon con- struction of language and acts, upon inferences from the character and position of the parties, and other circumstances which are pe- culiarly within the province of a jury, that it is difficult to make the question any other than one of fact. The parties are highly respectable, belonging to the same church of which the defendant is an elder. Except in pecuniary resources they seem to have been equals. The plaintiff was about thirty and the defendant fifty. He had lost his wife, to whom he was affectionately devoted. The plaintiff was the intimate personal friend of his wife during her life, and the two families were upon friendly if not intimate terms. Soon after the death of his wife, the defendant commenced visit- ing the family of the plaintiff. There was no significance in this circumstance other than what we might expect from a desire for sympathy and consolation for the affliction which the defendant had suffered; but the evidence shows that these visits became more and more frequent, during which the defendant evinced marked and significant personal attentions to and apparent affection for the plaintiff; and these attentions were of a character which, it ia 114 LAW OF HUSBAND AND WIFE. claimed, could proceed from no honorable motive except an inten- tion to marry . It is not claimed by the plaintiff that the engage- ment was made in express words. She stated that he never asked her in so many words to be his wife, but thought she had a right to expect that he meant it. It is claimed that during their inter- course, his language and acts assured her of his desire to marry her ; that she evinced a willingness, and that both regarded them- selves as engaged. There are many facts and circumstances from which it is claimed that the jury were justified in drawing this in- ference. The force and weight to be given to these circumstances are matters of fact and not of law, and a few of them only will be referred to for the purpose of establishing this- proposition. There were rides and walks and frequent visits, extending some- times until late in the evening; there was language of endearment and such caressing as might be expected between lovers, accom- panied with expressions by the defendant indicative, to say the least, of a desire that the plaintiff would become his wife. He told her that he intended to marry again at the end of a year after his wife's death ; that he and his wife had talked it over before her death, and that his wife had said somehing which he could not tell her then, but which she would some day know. He described to her the kind of a wife he intended to marry, and significantly said that he knew of such a one, the plaintiff answering the description. He told her that he expected she would some day know all his busi- ness and various other expressions of a similar significance. After this had continued about two months, upon an occasion when the defendant expected to leave home for a few days, the subject of their relations was alluded to, when the plaintiff told him that he had said many things which she thought meant a great deal, but he need not feel under any obligation from what he had said, and that he was free and had his liberty . He only answered at the moment that he regretted that she had misunderstood him, without explaining in what respect she had misunderstood him ; but he drew his chair nearer, put his arm around her, and told her that he thought a great deal of her ; he remained vmtil quite late, and said he did not want to go home. Upon his return from his journey he immediately called at her house, and finding her absent, en- gaged in her avocation of dressmaking, he went where she was at work and was very cordial, kissing her upon meeting and parting, told her he had been very lonely, ei;. He was intending to be ab- sent a few days again, and requested the plaintiff to write to him. She declined, saying he would know his mind better in the fall. Upon his return he made a visit, continuing late in the evening. PROMISE TO MARRY. 115 At this visit, according to the plaintiff's evidence, he made a for- mal declaration of love. "He said he loved me, and I was all the world to him ; he asked me if I loved him ; * * * jf j could return it. I said I could and did." The defendant does not seem to remember much of this interview. What inference is to be drawn from these facts ? The plaintiff had notified him how she regarded his advances, but frankly released him from any implied obligation ; had declined to write to him, intimating that he should make up his mind definitely. Yet with this notice and warning and request he continues his suit with renewed vigor and persev- erance, ending in a mutual pledge of love and endearing caresses. What the parties intended by these acts and declarations, what is the correct translation of them, is for a jury and not a court; it is a question of fact and not of law. They are capable of a construc- tion tending to corroborate the plaintiff's evidence, that while he did not say in words that he would marry her, she had a right to expect he meant it. If he did not mean that, what did he mean ? Tt was for the jury to say. The parties were then separated for six weeks, one or both being absent from the city. Immediately upon their return in September, the defendant commenced and continued his visits as before, three or four times a week, some- times twice a day, both in the daytime and evening, often staying quite late. These visits were apparently of the same cordial and affectionate character, and at one of them the defendant informed the plaintiff that he intedned to marry when the year was up ; that he supposed it would make a great talk, but he should not care, and asked plaintiff if she should care, and what she thought about it. The jury may have thought this was strongly confirmatory of the plaintiff's right to expect marriage, and that the defendant in- tended she should so regard it. On the 20th day of October the defendant requested a note from the plaintiff as to the character of his visits. Upon being asked his reasons for it, he told her it was as much for her good as his ; that he didn't want her- folks to know (or think) there was an understanding between them so soon. He drafted the note and she copied it, retaining the draft. It was in substance that she regarded his visits as evidence of his friendship "and nothing more." There is a discrepancy between the evidence of the plaintiff and defendant as to the circumstances under which this note was given, but the jury may have believed the version of the plaintiff, and if so that the language of the de- fendant amounted to an admission that there was an understand- ing or engagement between them. The fact is that sometime prior to this the defendant had become acquainted with the lady whom 116 LAW OF HUSBAND AND WIFE. he afterward married, and was probably engaged to her at that time, atid the jury doubtless believed that his object in procuring the letter was not for the reason assigned, but to relieve himself from an obligation which he felt that he had incurred, and that the transaction viewed in this light was not quite in accordance with the code of morals which an elder of the church should practice. It probably had a very damaging effect with the jury, and we have no power to say that they should believe one witness instead of another. The letter written by the defendant soon after to the plaintiff may also have been viewed in the light of a confession. He said, "I feel that I have done you a great wrong ; it is me that is to blame, not you." At the subsequent interview, upon being charged by the plaintiff with the engagement to another lady, the defendant admitted it, and when she recalled what he had said and done, and asked what he meant by them, without denying any of them or that she was justified in regarding them as serious, he re- plied "little witchery." The relations of the parties ended and the defendant was married the subsequent spring. After a careful examination of all the evidence and the very able and elaborate briefs and arguments of the respective counsel, and the opinions of the judges at the General Term, we think that the evidence is fairly capable of a construction to warrant the ver- dict for the plaintiff. Acts and even declarations which between some persons and under some circumstances might be unimportant would be significant and decisive between other persons and under other circumstances. A mutual pledge of love might be of insig- nificant import, or it might be indicative of an engagement depend- ing upon a variety of surrounding circumstances evincing the in- tent of the parties. So of caresses. They may indicate trivial flirtation or the sealing of the delicate contract of marriage. The defendant was marriageable and openly avowed his intention to marry at a certain time, and although he did not in words ask the plaintiff, he said and did everything else indicating such a purpose, and received her assent, and was warned by her that his continu- ance would be so regarded by her, and after all that he declared to her that she was all the world him, and after six weeks' absence renewed his suit with the same apparent ardor as before. The de- fendant testified that he did not intend to marry the olaintiff. This may be so ; yet if his acts and language were such as to induce her to believe that there was an engagement, and she acted upon that belief, and he knew that she so regarded them, and so acted and still continued, he cannot deny that the engagement existed. (39 PROMISE TO MARRY. 117 Conn. I.) She has a right to enforce the obligation which he pro- fessed to incur. In Perkins v. Hcrsey (t R 1. 493), the rule was laid 'down that if "his conduct was such as to induce her to believe that he in- tended to marry her and she acted upon that belief, the defendant permitting her to go on trusting that he would carry that intention into effect, that will raise a promise upon which she may recover." The learned counsel for the defendant urged, upon the argu- ment, the force of what he called the "negative evidence," such as the want of presents or a ring, or any married plans or arrange- ments, or letters and the like. These were considerations entitled to force before the jury, but they are not conclusive that no en- gagement existed. The jury may have believed that the defendant felt a delicacy either from a promise to his first wife or from a sense of propriety in not making the engagement more explicitly or publicly than he did, and that he preferred for the time being not to have it known beyond himself and the plaintiff. He evinced some sensitiveness about its being known that he remained so late : and, as the plaintiff states, he gave as a reason for the letter of October 20th, that he didn't want the folks to think there was an understanding so soon. These and other reasons may have pre- vented these circumstances from having the weight to which the counsel thinks them entitled. There is no ground for claiming that the letter of the plaintiff, of the twenty-ninth of November, operated as a release or dis- charge of the action. The defendant had informed her that he was about to marry another woman, and she wrote him a very womanly and appropriate letter, rebuking him for his conduct and stating that his visits were not as agreeable as formerly, and 't^iat she had no expectation of seeing him again. If there was an en- gagement of marriage, he had then broken it by engaging himself to another lady. At all events their relations were necessarily dis- turbed by his act, and the plaintiff only expressed her appreciation of it. If it was a dismissal, it was not of a suitor, as he had ceased to be such by his voluntary change of position. It did not affect her right of action nor relate to it. The question whether the damages are excessive, is not re- viewable in this court. As no legal error was committed, the judgment must be affirmed, with costs. All concur. Judgment affirmed. 118 LAW OF HUSBAND AND WIFE. BLACKBURN v. MANN, 85 ILL. 222. (1877). Appeal from the Circuit Court of Veripilion County; the Hon. Oliver L. Davis, Judge, presiding. This action was brought by Sarah Jane Mann against David S. Blackburn, to recover damages for a breach of marriage con- tract, alleged to have existed between the parties. The declara- tion is in assumpsit, and contains three counts. In the first count it is averred, an consideration plaintifif had, on request of defend- ant, promised to marry him when thereunto requested, he prom- ised to marry her when he should be requested. Both in the sec- ond and third counts the promise is laid as a mutual promise to marry each other "within a reasonable time" after making the con- tract. The third count avers seduction, by way of aggravation of damages. Breaches assigned in all the counts are, defendant re- fused to marry plaintifif, and in disregard of his promise married another woman. Only the general issue was pleaded, but a stipulation was signed by counsel as follows : "It is also agreed, that, under the above plea, any evidence may be introduced which would be com- petent under any pleading well pleaded in this cause." An unusal amount of evidence was heard on the trial, much of it conflicting in the extreme, and the jury, under instructions from the court, found the issues for plaintifif, and assessed her damages at $15,000. Motions for a new trial and in arrest of judgment, were severally overruled, and judgment pronounced on the verdict. Defendant brings the case to this court on appeal. Mr. J. IV. Gordon, and Messrs. Allen, Mack & Davis, for the appellant. Messrs. Bishop & Mann, for the appellee. Mr. Justice Scott delivered the opinion of the court : That a promise by defendant to marry plaintiff was proven by the testimony of plaintiff and other witnesses, must be conceded. It was met by a broad and unequivocal denial by defendant, except as to a promise dependent on a contingency that never happened. On the mere weight of the evidence, if it shall be found applicable to the issues made by the pleadings, counsel make no question against the verdict. The assumption, there is a variance between the contract as stated in the several counts of the declaration, and the proof ad- duced on the trial in support of it, arises from a misconception of the evidence. Regarding, as we must do, the finding of the jury as establishing the truth of plaintiff's testimony, our understand- ing is, it is sufficient to sustain either count of the declaration. It PROMISE TO MARRY. 119 was a general promise to marry, and the law implies it should be performed within a reasonable time. As to the time when the marriage should be solemnized, it was said, "it might be one year or it might be ten," but that did not qualify the contract itself. That, as we have seen, was general, although the day upon which it should be celebrated was left as a matter for future mutual ar- rangement. It is a subject about which parties engaged to be mar- ried might be expected to converse frequently, and perhaps to change plans agreed upon to suit each other's convenience. It is doubtful whether the parties, in discussing the time when they would celebrate their marriage, understood the indefinite express- ions "it might be one year or it might be ten," in the sense of fixing any definite time. It was simply an expression of an opinion on a question they had not then fully considered, but would be a subject of future agreement. That is all these phrases mean in this con- nection, and the sequel shows that is the sense in which the parties themselves understood them. But, aside from the question of any express promise, the re- lations of the parties were' such as warranted the inference a gen- eral engagement to marry existed between them. Their social re- lations continued through a. period of many years, during all which time defendant was constantly giving plaintiff assurances of his afifectionate regard. His attentions to her during that protracted period so far as she could know or believe, were exclusive, and of that cordial character not to be expected from one not intending to make her his wife. Appealing to everything sacred that could give sanctity to assurance, he solemnly avowed "he would never disown" her. She had given birth to a child, of which he was the father. Both before and after the birth of the child, he made her the most positive pledges that could be given, he would make her his wife as soon as some obstacles, which he alleged then existed, should be removed. When she pleaded with him to remove the stain from her character, and the great sorrow that pressed so heavily upon her, he again and again asserted his constancy and honorable intentions towards her. These repeated declarations may, with great propriety, be regarded as renewals of his earlier express promise to marry plaintiff. Although denied by defend- ant, we must understand the verdict of the jury as finding these controlling facts in favor of plaintiff. Through the many years of intimacy between plaintiff and de- fendant, they seem to have themselves treated the contract of mar- riage as a continuing one, by recognitions of its evistence and proihises of fulfillment. Assuming these facts to be true, as we must do uncler the finding, neither the statute of limitations nor 120 LAW OF HUSBAND AND WIPE. the statute of frauds, insisted upon in defense, can have any appli- cation. A contract of marriage may be inferred from defendant's condlict, up to the time of his formal announcement to her he in- tended to marry another woman. That fact was, itself, a recog- nition of a previously existing contract, and which he seems to have understood it required some express notice to terminate. Ap- plying the statute of limitations to this as we would to any other contract, no period of limitation prescribed by the statute had elapsed before suit was broug^ht. Nor can it be maintained, by any fair rendering of the testi- mony, the contract proven was not to be performed within a year, so as to bring it within the operation of the Statute of Frauds. Contracts of marriage, although defined as "civil contracts," are peculiar, and it is, perhaps, not entirely accurate to say they are subject to the same strict construction as civil contracts in relation to property. As a general rule, it may be no accurate terms are used in making them, nor is it material any precise day be fixed, at the making of such contract, when it shall be fulfilled. Such matters are usually for future consideration, and really form no material part of the contract. The law implies, such contracts, in the absence of any spfecial agreement, shall be performed within a reasonable time. It is a relation that affects the happiness of the parties for life, and it may be years may elapse, after the en- gagement is understood, before any day is definitely agreed upon for consummation. Such contracts, until a breach is shown that terminates them, may be regarded as continuing contracts by con- sent of the parties, and hence are, in no just sense, within the Statute of Frauds. The criticism made upon the instruction given for plaintiff, that if defendant had attempted to blacken and defame the char- acter of plaintiff, and failed, and such attempt was made in bad faith, it might be considered in aggravation of damages, is not warranted by anything it contains. The distinction sought to be taken is exceedingly subtle, but the impression it would commonly make is, the attempt to '"blacken and defame the character of plain- tiff." that was made in this case, and, indeed, the words used limit its meaning to that application.. The principle asserted is war- ranted by the decision of this court in Fidley v. McKinley, 21 111. 308, and there was no error in giving the instruction. The other instruction, that if plaintiff and defendant made a mutual contract to marry, and by the terms of such contract no time was agreed upon when the marriage should take place, then the law is, it is a contract to marry within a reasonable time^ is challenged, not so much because it does not state a correct legal PROMISE TO MARRY. 121 principle, but because it is not applicable to the facts of the case. It is conceded it would be law as to all g^eneral promises to marry. .Such a promise is alleged in the declaration, and as we understand the testimony, such a promise is proven. The vice of the whole argument for the defense, as we have before intimated, lies in the assumption the promise of marriage proven is a conditional one. That is not the fact. It was an absolute promise, if the testimony of plaintiff is to be believed, and the jury have regarded it as true, subject to no conditions nor the happening of any contingency. What was said, that it might be one year or ten, or as to the death of plaintiff's parents, were mere casual expressions, made when -considering the probable date they would fix for the consummation or celebration of their marriage. Giving this interpretation to these expressions, the case is relieved of all the difficulty Suggested "by the argument for the defense. The court ruled most justly, and in accordance with author- ity, in the admission of impeaching testimony as to the witness Morgan. Holmes v. Stateler, 17 111. 453. In that case, as in this, the witness had resided in the county where the suit was com- menced, long enough to make a reputation that was known by his neighbors, and if it was bad, the jtiry might well believe he is not now entitled to entire confidence. Any other rule would be most unreasonable. Since he had left the vicinage, witness had not re- sided in any locality long enough to establish any reputation that could be generally known. Besides, he had been back to his form- er residence frequently, so that his acquaintances could still know his reputation for truth and veracity. It would be a reproach to our laws, if the character of a wandering person, who is offered as a witness, could not be proven, if he had ever resided in any lo- cality long enough to make a reputation. Objection was taken to the admission of what are called the "Sallie Anderson letters," in rebuttal, after defendant had closed his defense. No material importance could be ascribed to them. All they tended to prove .is, the want of candor on the part of de- fendant in his attention to plaintiff, and that was abundantly proven by other testimony to which no objections were raised. In that view, the admission of the letters, whether proper or improper, was not hurtful to the denfense. As to the objection, such testi- mony was admitted in rebuttal, when, if proper at all, it should have been given in chief, it is a sufficient answer to say, that the order of the admi^ssion of evidence is within the discretion of the court. Judgment afHrmeii. lY. EFFECT OF MARRIAGE, 1, PERSON OF THE SPOUSE. a. Theoretic Unity. WELLS V. CAYWOOD, 3 COLO. 487. (1877). Appeal from the District Court of Boulder County. Ejectment. The pliantiff below had judgment. The facts are sufSeiently stated in the opinion. Thatcher, C. J. This ^'as an action of ejctment brought by the appellee against the appellant m the court below. On the nth day of August, 1873, Albert W. Benson being at the time the owner in fee of the premises in dispute, made a promissory note for the sum of $250, payable, to Catherine D. Caywood, the wife of William W. Caywood, two years after the date thereof. On the same date, to secure the payment of this note, Mr. Benson conveyed to William W. Caywood, as trustee, the disputed premises, with power to sell and dispose of the same at public auction in the man- ner prescribed in said deed of trust, in case the grantor therein should make default in the payment of the promissory note, or any part thereof, or the interest thereon, and to make, execute and de- liver to the purchaser, at such sale, a good and sufficient deed of conveyance for the premises sold. After the maturity of the note, Mr. Benson having made default in its payment, the trustee ad- vertised and sold and conveyed the premises to Mrs. Caywood, the then holder of the note. The deed of trust and the note were of- fered and read in evidence without objection. To the admission of the trustee's deed from Mr. to Mrs. Caywood, counsel for de- fendant in the lower court objected, on the sole ground that it was a deed executed by a husband to his wife. This objection was overruled, the deed admitted in evidence and an exception taken. The admission of the deed in evidence is assigned for error. This brings us to the consideration of the question of the re- lation of husband and wife under the laws of this state, with re- spect to the independent acquisition, enjoyment and disposition of property. The general tendency of legislation in this country has been to make husband and wife equal in all respects in the eye of EFFECT OP MARRIAGE. 123 the law, to secure to each, untrammeled by the other, the full and free enjoyment of his or her proprietary rights, and to confer upon each the absolute dominion over the property owned by them re- spectively. The legislation of our own state upon this subject, al- though yet somewhat crude and imperfect, has doubtless been ani- mated by a growing sense of the unjustly subordinate position as- signed to married women by the common law, whose asperities are gradually softening and yielding to the demands of this enlight- ened ^^and progressive age. The benignant principles of the civil law are being slowly but surely grafted into our system of juris- prudence. "In the civil law," says Sir William Blackstone (i Blacksone's Com. [Cooley] 444,) "husband and wife are consid- ered as two distinct persons, and may have separate estates, con- tracts, debts and injuries, and, therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband." The courts, which have ever been conservative, and which have always been inclined to check, with an unsparing hand, any attempted departure from the principles of the body of our law, which were borrowed from England, in the states which were the first to pass enactments for the enlargement of the rights of mar- ried women, regarding such enactments as a violent innovation njKin the common law, construed them in a spirit so narrow and illiberal as to almost entirely defeat the intention of the law-mak- ers ; but generally with a promptness that left little room for doubt, a succeeding legislature would reassert, in a more unequivocal form, the same principles, which the courts had before almost ex- pounded out of existence. To understand the marked changes which our own legislation has wrought in this respect, it is neces- sary that we should consider some of the disabling incidents and burdens attendant upon coverture at common law. At common law the husband and wife are one person, and as to every contract, there must be two parties, it followed that they could enter into no contract with each other. "The very being or legal existence of the woman is suspended during the marriage, or at least is incor- porated and consolidated into that of the husband, under whose wing, protection and cover, she performs every thing." "Upon the principle of an union of person in husband and wife depend al- most all the legal rights, duties and disabilities that either of them acquire by marriage." i Cooley's Blackstone, 442. All the personal estate, as money, goods, cattle, household fur- niture, etc., that were the property and in possession of the wife at the time of the marriage, are actually vested in the husband, so that of these he might make any dispostition in his life-time, with- 124 LAW OF HUSBAND AND WIFE. out her consent, or might by will devise them, and they would, without any such disposition, go to the executors or administra- tors of the husband and not to the wife, though she survive him. Debts due to the wife are so far vested in the husband that he may, by suit, reduce them to possession. (2 Bacon's Abridgment, 21. 1 The rents and profits of her land during coverture belonged to the husband. The law wrested from the wife both her personal estate and the profits of her realty, however much it might be against her will, and made them liable for his debts. An improvident husband had it in his power to impoverish the wife by dissipating her personal estate, and the profits of her realty over which she, under the law, by reason of the coverture, had no control. The wife in Colorado is the wife under our statutes, and not the wife at common law, and by our statutes must her rights be de- termined, the common law aflfecting her rights, as we shall pre- sently see, having been swept away. By our laws it was decided that the property, real and per- sonal, which any woman may own at the time of.her marriage, and the rents, issues, profits and proceeds thereof, and any real, per- sonal or mixed property that shall come to her by descent, devise or bequest, or by the gift of any person except her husband, shall remain her sole and separate property, notwithstanding her mar- riage, and not be subject to the disposal of her husband or liable for his debts. R. S. 1868, p. 454. The legislature, however, being reluctant to allow a married woman the absolute dominion over her own real property, further provided that she could only convey her estate in lands by uniting with her husband in any conveyance thereof, and acknowledging the same separate and apart from her husband. R. S. 1868, p. Ill, § 17- It was not to be expected that our laws would long be per- mitted to remain in this anomalous and incongruous condition, de- claring in one section that the wife's real property should remain her separate estate, not subject to disposal by her husband, and in another that she could not convey it without the consent of her husband, which is necessarily implied by his uniting in a deed with her. By "an act concerning married women," approved February 12, 1874, it is provided in section i, that any woman, while mar- ried, may bargain, sell and convey real and personal property, and enter into any contract in reference to the same, as if she were sole. EFFECT OF MARRIAGE. 125 Section 2 provides that she may sue and be sued, in all matters the same as if she was sole. Section 3 provides that she may contract debts in her own name, and upon her own credit, and may execute promissory notes, bonds and bills of exchange, and other instru- ments in writing, and may enter into any contract the same as if she were sole. Section 4 repeals section 17 of chapter 17 of the Revised Statutes, which required the husband to unite with the wife in conveying her separate estate. This is, essentially, an en- abling statute, and as such must be liberally construed to effectuate the purpose of its enactment. It confers, in terms, enlarged rights and powers upon married women. In contemplation of this statute, wliatever may be the actual fact, a feinme covert is no longer sub potestate viri in respect to the acquisition, enjoyment and disposition of real and personal property. This statute as- serts her individuality, and emancipates her, in the respects within its purview, from the condition of thraldom in which she was placed by the common law. The legal theoritical unity of husband and wife is severed so far as is necessary to carry out the declared will of the law-making power. With her own property she, as any other individual who is sui juris, can do what she will, with- out reference to any restraints or disabilities of coverture. What- ever incidents, privileges and profits attach to the dominion of property, when exercised by others, attach to it in her hands. Be- fore this statute her right to convey was not untrammeled, but now it is absolute without any qualification or limitation as to who shall be the grantee. Husband and wife are made strangers to each other's estates. There are no words in the act that prohibit her- from making a conveyance directly to her husband, and it is not within the province of the court to supply them. When a right is conferred on an individual, the court cannot,, without transcending its legitimate functions, hamper its exercise by imposing limitations and restrictions not found in the act con- ferring it. Were we to construe this enabling statiite so as to de- prive the wife of the right to elect to whom she will convey her property, we would, it is believed, thwart the legislative will whose wisdom we, as a court, are not permitted to question. The dis- ability of husband and wife to contract with and convey to each other was, at common law, correlated and founded mainly upon the same principle, viz. : the unity of' baron and feinme. The re- moval in respect to the wife, of a disability that is mutual and springing from the same source, removes it also as to the husband. The reason,' which is the spirit and soul of the law, cannot apply to the husband as it no longer applies to the wife. If she 126 LAW OF HUSBAND AND WIFE. may convey to the husband, the husband may convey to the w^ife. Allen V. Hooper, 50 Me. 371 ; Stone v. Gazzem, 46 Ala. 269; Bur- deno V. Ampeise, 14 Mich. 91 ; Patten v. Patten, 75 111- 443. Perhaps the right of the husband when acting in a represen- tative capacity in autre droit to make a deed to his w^ife might be supported at common law. Co. Litt. 112 a, 187 b; Com. Digest, Baron and Femme, D. i. This doctrine, however, is repudiated in New York (Leiicli v. Wells, 48 Barb. 654), but sanctioned in Pennsylvania. Dundas' Appeal, 64 Pa. 332. We, however, rest our decision, not upon this mooted doctrine, but broadly upon the statute, under which a husband, when acting not in a representative capacity, but in his own right, has, as we have seen, the right to convey directly to the wife. But it may be urged that if not by reason of the disability of coverture, then by reason of the peculiarly intimate relation of hus- band and wife, and the consequent opportunity to commit and con- ceal fraud, the same principle that prohibits a trustee from execut- ing a trust in favor of himself, also prohibits him from executing it in favor of his wife. This position is not without force. Dun- das' Appeal, 64 Pa. 332. It must, however, be borne in mind, that it 'is only in the absence of an express or a clearly implied agree- ment that the law, suspicious of fraud and collusion where a fidu- ciary relation exists, will not permit a trustee to become either di- rectly or indirectly a purchaser at his own sale ; but where the right to purchase is conferred in clear terms by the instrument appoint- ing him, or where, as in the case before us, the wife as the holder of the note is in unmistakable language authorized to buy at the trustees' sale, the law interposes no impediment to the validity of a sale so made. Perry on Trust, 602, v; Dundas' Appeal, case cited supra, is precisely in point. The evidence of Eugene Wilder, one of the proprietors and publishers of the Boulder County News (which was received with- out objection) sufficiently proves the due publication of the trus- tees' notice of sale, if the proof of that fact was necessary to entitle the plaintiff to offer his deed in evidence. In our view, in order to entitle a purchaser at a trustees' sale to maintain ejectment, it does not devolve upon him to show that his grantor (the trustee) had complied with the conditions pre- scribed in the deed of trust. Reese v. Allen, 5 Gilm. 241 ; Graham V. Anderson, 42 111. 515 ; Taylor v. King, 6 Munf. ( Va.) 358 ; Har- ris- V. Harris, id. 367. In Dawson v. Hayden, 67 111. 52, it was held, if a trustee un- der a power in a deed of trust makes a conveyance of the premises EFFECT OF MARRIAGE. 127 without complying with the provision in the deed of trust requiring pubhcation of sale for a specified period, the estate will neverthe- less pass to the purchaser, and the deed to him cannot be im- peached on that ground by a defendant in ejectment. It is a proper subject of inquiry in a court of equity. A legal, though a defeasible, title was by the trust deed vested in Mr. Caywood. Perry on Trusts, § 602, and cases cited. By the deed executed by j\Ir. Caywood to his wife, although inartificially drawn, the legal title passed to the purchaser and be- came absolute in a court of law. That it should so pass was the evident intent of tlie grantor therein. The deed purports on its face to have been made for the sole purpose of executing the trust. To give it any other construction would be to defeat the manifest purpose of its execution. As when the plaintiff rested she had shown by her deeds that the legal title to the premises in dispute was in her, the motion for a nonsuit was properly denied. The defendant offered in evidence the deposition ot A. W. Een.son, which the court excluded. The exclusion of the deposi- tion is assigned for error. The deposition tended to show that the note and trust deed offered in evidence were executed in pursu- ance of an agreement between Benson and Wm. W. Caywood, by which Benson was to enter under the pre-emption laws of the United States a certain tract of land, and convey the same to Mr. Caywood. Had Benson, in pursuance of the agreement, entered and conveyed the land to Caywood, he would have been guilty of great moral turpitude, involving the crime of perjury. The con- sideration was, therefore, illegal-. Hoyt v. Macon, 2 Col. 502. Can a defendant in ejectment show that the consideration for a deed, under which the plaintiff claims title, was either wanting, or was illegal or fraudulent? That a conspiracy existed to de- fraud the United States out of the title to one hundred and sixty acres of land the deposition tends to show. Nothing appears to relieve the consideration from the taint of illegality and fraud. The question here presented was very fully considered, in the case of The Inhabitants of Worcester v. William Eaton, 1 1 Mass. 368, in a writ of entry in which the plaintiff sought to avoid the deed un- der which defendant claimed title by showing that it was executed for an illegal consideration. The consideration was an agreement to compound a felony. The court says : "A bond or other obligation, or a written promise founded upon such a consideration, may be avoided, be- cause the law will not uphold a contract, or permit a party to en- 128 LAW OP HUSBAND AND WIFE. force it, if it was made to secure the price of an unlawful act. * * * If one holds the obligation or promise of the other, to pay him money, or do any other valuable act, on account, of such illegal transaction, the party defendant may expose the na- ture of the transaction to the court, and the law will say: 'our forms and rules are established to protect the innocent, and to vin- dicate the injured, not to aid offenders in the execution of their- unjust projects; and if the party, who has foolishly paid his. money, repents his folly, and brings his action to recover it back, the same law will say to him : 'you have paid the price of your wickedness, and you must not have the aid of the law to rid you of an inconvenience, which is a suitable punishment of your offense.' * * * A deed of bargain and sale, signed, sealed and delivered,, acknowledged and recorded, is an actual transfer of the land to the- grantee as much as the delivery over of a sum of money or a per- sonal chattel.'' The court held that the^itle having passed, the deed could not be avoided by showing the illegal consideration. It is not doubted that if the defense had gone not to the consider- ation but to the execution of the deed, it would have been admis- sible. Thus it might be shown that the deed was executed under duress, or that it had been mis-read to the grantor, or other evi- dence might be given tending to prove that he did not assent to it. But want of, or fraud in, or illegality of the consideration in a plaintiff's deed, may not be shown by a defendant in eject- ment. The defendant's remedy, if any he has, is not in a court of law. Doe dem. Roberts v. Roberts, 2 Barr. & Aid, 367 ; Taylor v. King, 6 Munf. (Va.) 365; Dyer v. Day, 61 111. 336; Hovey v.. Hobson, 51 Me. 67. The deposition of Benson was properly excluded. Defendant then offered to introduce in evidence a warranty deed, dated June 3, 1875, from Albert W. Benson, and Helen Ben- son, his wife, purporting to convey the premises in dispute to him, and containing a waiver of homestead exemption in the body of the deed. By the stipulation filed in the cause it appears that Benson, on the 4th day of February, 1875, a year and a half after the exe- cution of the trust deed to Caywood, caused the word "homestead'" to be entered of record, on the margin of his recoreded title. The law requires such entry to be made, to entitle a householder to a homestead. R. S. 385. It is the record entry that proclaims to the world that the owner of the property claims it as a homestead. Until the entry is made it is not in contemplation of law a home- stead, and, therefore, it cannot be said that, as the wife of Benson did not join with him in the execution of the trust deed, as is re- EFFECT OF MARRIAGE. 129 quired by the Homestead Act (R. S. 386), in case of mortgages executed after the property is claimed as a homestead, that the trust deed was executed against the provisions of law. Having reference to the condition of the property at the time the trust deed was made, Benson alone was a necessary grantor, even if a trust deed is to be considered as a mortgage, within the meaning of that word as used in the Homestead Act. Drake v. Root, 2 Col. 689. The subterfuge adopted by making the entry of "Homestead" on the record on the very day that Benson and family vacated the premises, cannot be held to invalidate the trust deed. The deed from Benson and wife to the defendant in ejectment was subject to the incumbrance contained in the deed of trust, and must yield to any title legally deduced under it. Taylor v. King, cited supra. Wells having purchased with the record notice of the trust deed occupies no better position than his grantor. The source of the title both in appellant and appellee is the same. The court did not err in excluding the deed from Benson and wife to Wells. As we discover no error in the record, the judgment of the court below must be affirmed. BEETLES V. NUNAN, 92 N. Y. 152. (1883). Appeal from judgment of the general term of the Supreme Court, in the fourth judicial department, in favor of plaintiff, en- tered upon an order directing such judgment, made March 22, 1882, upon a case submitted under section 1279 of the Code of Civil Procedure. The facts stated were substantially these: In 1868, Nelson K. Hopkins executed a deed to "Cornelius Day and Hannah Day, his wife * * * their heirs and assigns," of certain premises situated in the City of Buffalo. In August, 1877, Cornelius Day died leaving his wife surviving him, and after his death, up to her own death, she had the possession of the whole of said premises. She died intestate in April, 1879, and in proceedings instituted by plaintiff, her administratrix, and who was her sole heir at law, an order was made by the surrogate directing the sale of the premises. Upon such sale the defendant became the purchaser, but he re- fused to complete the purchase on the ground that said Hannah Day was never seized of more than an undivided half interest, and, therefore, that plaintiff could not convey a good title. The ques- tion submitted was as to whether this objection was tenable. Earl, J. On the ist day of August, 1868, certain land, which 130 LAW OF HUSBAND AND WIFE, is the subject of this controvers>, was conveyed by deed to Cor- nelius Day and Hannah Day, his wife, and to their heirs and as- signs ; and the sole question for our determination is whether the grantees took the land as tenants in common or whether each took and became seized of the entirety. By the common law, when land was conveyed to husband and wife they did not take as tenants in common, or as joint tenants, but each became seized of the entirety, per tout, et non per my, and upon the death of either the whole survived to the other. The sur- vivor took the estate, not by right of survivorship simply, but by virtue of the grant which vested the entire estate in each grantee. During the joint lives the husband could, for his own benefit, use, possess and control the land, and take all the profits thereof, and he could mortgage and convey an estate to continue during the joint lives, but he could not make any dispostion of the land that would prejudice the right of his wife in case she survived him. This rule is based upon the unity of husband and wife, and is very ancient. It must have had its origin in the archaic period of our race, and it colored all the relations of husband and wife to each other, to the law and to society. In i Blackst. Com. 442, the learned author says : "Upon this principle, of an union of per- son in husband and wife, depend almost all the legal rights, duties and disabilities that either- of them acquired by the marriage. I speak not, at present, of the rights of property, but of such as are merely personal. For this reason a man cannot grant any thing to his wife or enter into covenant with her ; for the grant would be to suppose her separate existence, and to covenant with her would be only to covenant with himself." They were not allowed to give evidence against each other, mainly because of the union of person, for if they were admitted to be witnesses for each other they would contradict one maxim of the common law, nemo in propria causa testis esse debet; and if against each other they would contradict another maxim, nemo tenetur se ipsum accusare. As one of the consequences of the same rule, the husband was made responsible to society for his wife. He was liable for her torts and frauds, and, in some cases, for her crimes. This, and the other rules regulating the eflfect of marriage at common law, were not designed to degrade and oppress the wife. Blackstone (2 Com, 445) says: "Even the disabilities which the wife lies under are, for the most part, intended for her protection and benefit ; so great a favorite is the female sex of the laws of England." EFFECT OF MARRIAGE. 131 The common law rule as to the effect of a conveyance to hus- band and wife continued in force, notwithstanding the Revised Statutes, which provided that "every estate granted or devised to two more persons in their own right shall be a tenancy in common unless expressly declared to be in joint tenancy." (3. R S. 2179 [7th ed.] ; Dios v. Glover, i Hoff. Ch. 71 ; Torrey v. Torrey, 14 N. Y. 430; Wright v. Saddler, 20 id. 320.) In the latter case Comstock, J., said : "It appears to be well settled that this statute does not apply to the conveyance of an estate to husband and wife. They are regarded in law as one person." But the claim is made that legislation in this state, in the years 1848, 1849, ^860 and 1862, in reference to the rights and property of married women, has changed the common law rule so that now when -land is conveyed to husband and wife they take as tenants in common, as if unmarried. In construing these statutes the rule must be observed, and usually has been observed, that statutes changing the common law must be strictly construed and that the common law must be held no further abrogated than the clear im- port of the language used in the statutes absolutely requires. Section 3 of chapter 200 of the laws of 1848, as amended by chapter 375 of the laws of 149, provides that "any married female may take by inheritance or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and sepa- rate use, and convey and devise, real and personal property, or any interest or estate therein, and the rents, issues and profits thereof in the same manner and with like^effect as if she were unmarried, and the same shall not be subject to the disposal of her husband or be liable' for his debts." It is not the effect of this section, and plainly was not its purpose to change the force and operation of a conveyance to a wife. It does not enlarge the estate which a wife would otherwise take in land conveyed to her, and whatever the effect of a conveyance to a husband and wife was prior to that statute, so it remains. If the operation of such a conveyance was to convey the entire estate to each of the grantees, so that each be- came seized of the entirety, there is nothing in the force or effect of the language used to change the operation of such a deed so as to make the grantees tenants in common. The section gives the wife no greater right to receive conveyances than she had at com- mon law, but its sole purpose was to secure to her during cover- ture, what she did not have at common law, the use, benefit and control of her own real estate, and the right to convey and devise it as if she were married. 132 LAW OF HUSBAND AND WIFE. By section i of the act (Chapter 90 of the laws of i860) it is provided that the "property, both real and personal, which any married woman now owns as a sole and separate property; that which comes to her by decent, devise, bequest, gift or grant ; that which she acquires by her trade, business, labor or services, carried on or performed on her sole and separate account; that which a woman married in this state owns at the time of her marriage, and the rents, issues and proiits of all such property, shall, notwith- standing her marriage, be and remain her sole and sejjarate prop- erty and may be used, collected and invested by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts ;" and in section 3 of the act o? i860, as amended by the act chapter 172 of the laws of 1862, it is provided that "any married woman possessed of real estate as her separate property may bargain, sell and convey such property, and enter into any contract in reference to the same, with the like effect, in all respects, as if she were unmarried." There is great plausi- bility in the claim that these provisions in the acts of i860 and 1862 have reference only to the separate property of a wife, which she owns separate from her husband, and that they have no reference whatever to land conveyed to husband and wife, in which, by the common law, each became seized of the entirety. The language is not so strong and direct as that of the Revised Statutes, which provided that a grant to two or more persons shall create a tenancy in common, and which was yet held not to make husband and wife tenants in common. But it is not necessary now to determine that these provisions of law do not apply to lands conveyed to husband and wife, and we pass that question. It is sufficient now to hold that they do not limit or define what estate the husband and wife shall take in lands conveyed to them jointly. Their utmost effect is to enable the wife to control and convey whatever estate she gets by any conveyance made to her solely or to her and others jointly. The claim is made that the legislation referred to has de- stroyed the common law unity of husband and wife, and made them substantially separate persons for all purposes. We are of the opinion that the statutes have not gone so far. The legisla- ture did not intend to sweep away all the disabilities of married women depending upon the common law fiction of a unity of per- sons, as a brief reference to the statutes will show. The act of 1848 gave no express authority to a married woman to grant or dispose of her property; such authority came by the act of 1849. The legislature clearly understood that the common law unity of EFFECT OF MARRIAGE. 133 husband and wife, and the disabilities dependent thereon still re- mained, notwithstanding those acts, because in i860, by the act of that year, it empowered a married woman to perform labor and to carry on business on her separate account ; to enter into contracts in reference to her separate real estate ; to sue and be sued in all matters having relation to her property, and to maintain actions for injuries to her person. Until 1867 (Chap. 782) husbands retained their common law ri^ht of survivorship to the personal property of their wives. It was not until chapter 887 of the laws of the same year, that husband and wife could, in civil actions, be com- pelled to give evidence for or against each other; and in 1876 (Chap. 182), for tlie first time, they could be examined in crim- inal proceedings as witnesses for each other; and provision was first made in the Penal Code (§ 715) that they could, in criminal proceedings, be witnesses for and against each other. From this course of legislation it is quite clear that the legisla- ture did not understand that the common law rule as to the unity of husband and wife had been abrogated by the acts of 1848, 1849 and i860, and that whenever it intended an invasion of that rule, it made it by express enactment. Still more significant is the act chapter 472 of the laws of 1880, which provides that "whenever husband and wife shall hold any lands or tenements as tenants in common, joint tenants or as tenants by entireties, they may make partition or division of the same between themselves," by deeds duly executed under their hands and seals. Here the disability of husband and wife, growing out of their unity of person, to convey to each other is recognized, as is also the estate by entireties created by a deed to them jointly. So the common law incidents of marriage are swept away only by express enactments. The ability of the wife to make con- tracts is limited. Her general engagements are absolutely void, and she can bind herself by contract only as she is expressly au- thorized to do so by statute. A husband still has his common law right of tenancy by the curtesy. Although section 7 of the act of i860 authorizes a married woman to maintain an action against ajjy person for an injury to her person or character, yet we have held that she cannot maintain an action against her husband for such an injury; and so it was held, notwithstanding the acts of 1848, 1849 and i860, that the common law disability of husband and wife growing out of their unity of person to convey to each other still existed. White v. Wager, 25 N. Y. 333 ; Winans et al. v. Peebles et al., 32 id. 423; Meeke,r v. Wright, 76 id. 262, 270). 134 LAW OF HUSBAND AND WIFE. It is believed, also, that the common law rule as to the liability of the husband for the torts and crimes of his wife are still substan- tially in force. We fail, therefore, to find any reason for holding that the common law rule as to the effect of a conveyance to husband and wife has been abrogated, and this conclusion is sustained by con- siderable authority. In Goelet v. Gori, 31 Barb. 314, Sutherland, J., at Special Term, held that a'lease for a term of years, executed to husband and wife, was unaffected by the acts of 1848 and 1849, and that husband and wife by conveyances to them still took as tenants by the entirety. In Farmers and Mechanics' National Bank of Rochester v. Gregory (49 Barb. 155) it was held at Gen- eral Term that the statutes referred to had no relation to or effect upon real estate conveyed to husband and wife jointly, and that in the case of such a conveyance, notwithstanding those statutes, they take as tenants by the entirety. Johnson, J., commenced his opin- ion by saying: "To my mind it is a very clear proposition that our recent statutes for the better protection of the separate prop- erty of married women have no relation to or effect upon real es- tate conveyed to husband and wife jointly." That decision was rendered in 1867, and the conveyance which was there the sub- ject of consideration was executed in 1864. In Miller v. Miller (9 Abb. P. [N. S.] 444) Murray, J., at Special Term, in 1871, feeling bound by the decision last referred to, held, that the com- mon law rule was applicable to a conveyance made to husband and wife in 1867. In Freeman v. Barber (3 N. Y. Sup. Ct. [T. & C] 574) the same rule was applied in 1874 by the Supreme Court in the third department. The opinion of the court was writ- tei^ by Miller, P. J., in which he stated that he regarded the law as settled in this state that, in the case of a conveyance to husband and wife, they take, not as joint tenants or as tenants in common, but as tenants by entireties, notwithstanding the acts referred to. In Beach v. Hollister (3 Hun. 519), decided in 1875, a similar decision was made. Gilbert, J., writing the opinion of the court, said: "These statutes operate upon property which is exclusively the wife's, and were not intended to destroy the legal unity of husband and wife, or to change the rule of the common law gov- erning the effect of conveyances to them jointly." In Ward v. Crum, 54 How. Pr. 95, decided in 1876, Van Vorst, J., at Special Term, held that under a deed executed to husband and wife in 1872, both became seized of the entirety, although the wife paid the entire consideration of the conveyance. EFFECT OF MARRIAGE. 135 It is true that these decisions are not absolutely binding upon this court, but they settled the law in the Supreme Court. For twenty years after 1849 there was no decision or published opinion in this state in conflict with them, and 1;hey are, under the circum- stances, entitled to great weight here. They undoubtedly lay down a rule which has been followed and observed by conveyan- cers, and we have no doubt that property to the value of millions is now held under conveyances made in reliance upon the common law rule as thus expounded. These decisions were never ques- tioned in this state by any court until the decision in the case of Meeker v. Wright, which was rendered in this court in 1879, 76 N. Y. 262. In that case the learned judge writing the opinion reached the conclusion that the common law rule governing con- veyances to husband and wife had been abrogated by the modern legislation in this state. But that portion of the opinion was not concurred in by a majority of the judges. The views of that judge were very forcibly and ably expressed, and they have been carefully reconsidered. They do not convince us that the conclu- sions he reached should be adopted by this court. That case is supposed to have unsettled the law somewhat in this state. In Feely v. Buckley, 28 Hun. 451, it was held upon its authority, by a divided court, that tenancy by the entirety is abrogated by the Mar- ried Women's Acts ; and upon the same authority it is said a sim- ilar holding was made in Zorntlein v. Brown, decided in the Su- perior Court of New York, in January of this year, by a divided court. It is also said that in Forsyth v. McCall, in the fourth de- partment in June, 1880, and in Meeker v. Wright, after a new trial, in the third department, in April, 1882, it was decided that the common law rule was not abrogated. (2y Albany Law Journal, 199.) And these decisions, together with the one which is now under review, are all the decisions made in this state since the case of Meeker v. Wright was in this court, which have come to our attention. Legislation similar to that which exists in this state, as to the rights and property of married women, exists in many of the states of the Union, and the decisions are nearly uniform in all the other states where the question has arisen, that a conveyance to husband and wife has the common law eflFect, notwithstanding such legis- lation. Without citing all we call attention to the following cases and authorities : Bates y. Seeley, 46 Penn. St. 248, French v. Mo- han, 56 id. 289, Diver v. ^Diver, id. 106, Fisher v. Peovin, 25 Mich. 350; McDuff V. Beauchamy,' 50 Miss. 531 ; Washburn v. Burns, 136 LAW OP HUSBAND AND WIFE. 34, N. J. i8; Chandler v. Cheney, 2,7 Ind. 391 ; Morburgh v. Cole, 49 Md. 402 ; 33 Am. Rep. 266 ; Bennett y. Child, 19 Wis. 362 ; Rob- inson V. Eagle, 29 Ark. 202 ; i Washb. on Real Prop. [3d ed.] 577 ; Schouler'on Husband and Wife, §§ 397, 398; 1 Bishop on the Laws of Married Women, 438, §§ 613, etc. ; 2 id. 284, § 284). In the last section the learned author says: "Under the late mar- ried women's statutes, the effect of which is to prevent any part of the wife's interest in her lands passing to her husband, the rule of the common law, by force of which the two became tenants by the entirety of lands conveyed to both, is not changed," and he says : "The reason for the doctrine, looking at the question in the light of legal principle, is, that the statutes which preserve to mar- ried women their separate rights of property do not have, or pro- fess to have, any effect upon the capacity of the wife to take prop- erty, or the manner of her taking it, but when she does take it they simply preserve the right in her, to her separate use, forbidding it to pass in part or in full to her husband under the rules of the unwritten law. If, then, land is conveyed to a husband and his wife, they take precisely as at the common law — ^that is, as tenants by the entirety." In Diver v. Diver, Strong, J., said: "But it is said the act of 1848, by destroying the legal unity of the husband and wife, has converted such an estate into a tenancy in common ; that is, that such a deed conveys a different estate from that which the same deed would have created if made prior to the passage of the act. To this we cannot assent. It mistakes alike the letter and the spirit of the statute, imputing to it a purpose never in- tended. The design of the legislature was single. It was not to destroy the oneness of husband and wife, but to protect the wife's property, by removing it from under the dominion of the husband. To effect this object she was enabled to own, use and enjoy her property, if hers before marriage, as fully after marriage as be- fore, and the act declared that if her property accrued to her after marriage, it should be owned, used and enjoyed by her as her own separate property, exempt from liability for the debts and engage- ments of her husband. All this had in view the enjoyment of that which is hers, not the force and effect of the instrument by which an estate may granted to her. It has nothing to do with the na- ture of the estate. The act does not operate upon rights accruing to her until after they have accrued. It takes such rights of prop- erty as it finds them, and regulates the enjoyment, that is the en- joyment of the estate after it has vested in the wif^." At common law where the estate was conveyed to husband EFFECT OF MARRIAGE. 137 and wife, as above stated, the husband had the control and use of the property during the joint Hves. It is unnecessary now to de- termine whether, under the Married Women's Acts in this state, tlie husband still has such a right in real estate conveyed to him and his wife jointly. It was said in some of the authorities cited that the statutes had changed that common law rule, and that while husband and wife, in conveyances to them jointly, each took the entirety, yet that the land could not be sold for the husband's debts, or the use and profits thereof during their joint lives be entirely appropriated by him. It is not important in this case to determine what the relation of the wife to the land, in such a case, now is, during the life of her husband. It is said that the reason upon which the common law rule under consideration was based has ceased to exist, and hence that the rule should be held to disappear. It is impossible, now, to de- termine how the rule, in the remote past, obtained a footing, or upon what reason it was based, and hence it is impossible now to say that the reason, whatever it was, has entirely ceased to exist. There are many rules appertaining to the ownership of real prop- erty originating in the feudal ages, for the existence of which the reason does not now exist, or is not discernible, and yet, on that account, courts are not authorized to disregard them. They must remain until the legislature abrogates or changes them, like statutes founded upon no reason, or upon reasons that have ceased to operate. It was never, we believe, regarded as a mischief, that under a conveyance to husband and wife they should take as tenants by the entirety, and we have no reason to believe that it was within the contemplation of the legislature to change that rule. Neither do we think that there is any public policy which requires that the statute should be so construed as to change the common law rule. It was never considered that that rule abridged the rights of mar- ried women, but rather that it enlarged their rights, and improved their condition. It would be against the spirit of the statutes to cut down an estate of the wife by the entirety to an estate as ten- ant in common with her husband. If the rule is to be changed it should be changed by a plain act of the legislature, applicable to future conveyances ; otherwise incalculable mischief may follow by unsettling and disturbing dispositions of property made upon the faith of the common law rule. The courts certainly ought not to go faster than the legislature in obliterating rules of law under which many generations have lived and flourished and the best civilization of any age or country has grown up. 138 LAW OF HUSBAND AND WIFE. We are, therefore, of opinion that the judgment should be affirmed, with costs. All concur, except Danforth and Finch, JJ., who dissent upon the ground that the common law doctrine was abrogated by the stautes which enable a wife to hold a separate estate, and for the reasons stated by the former inMeeker v. Wright, and his dissenting opinion in Schultz v. Schults. Judgment affirmed. b. Matrimonial Domicil. HAIR V. HAIR, 10 RICH. EQ., 163. (1858). Dargan, Ch. The Plaintiff charges in her bill that her hus- band, the defendant, while paying his addresses to her and making overtures of marriage, and before the solemnization of their nup- tials, entered into a solemn engagement, that if she would marry him, he would never remove her, without her consent, from the neighborhood of her mother, or to a place where she could not en- joy her mother's society, and that of her friends. On this condi- tion she married him, as she says. Her mother (Mrs. Matheney), also obtained from him (as it is charged) a similar promise, as the condition of her assent to the marriage. The marriage was cele- brated on the 13th October, 1853. From that time the young pair lived with the plaintiff's mother until the 9th December, 1854, dur- ing which period, the plaintiff bore to her husband a daughter, who is the only issue of the marriage. At the last mentioned date, the defendant, with his wife and child, went to live at a place which he had bought, about a half mile distant from that of his mother-in- law, where, as the plaintiff herself says, they "lived in comfort, peace, and harmony, up to the twenty-seventh day of September, 1857." This statement appears to be in strict conformity with the truth, except as relates to some immoralities on his part which had come to her knowledge, and which were condoned on her part by their subsequent cohabitation. After the plaintiff and defendant had gone to live at their own home, he became restless and dis- satisfied, and anxious to remove to Louisiana, to which state some of his near relatives had emigrated. His land was poor, and he wished, as he says in his answer, to better his condition, by moving to a country where lands were fertile and cheap. But his wife was unwilling to go, positively refused, and pleaded his solemn engage- ment and promise made previous to their marriage. (It may be EFFECT OF MARRIAGE. 139 as well to remark here that, although this promise was denied in his answer, it was satisfactorily proved against the allegations of his answer by witnesses who had heard him speak on the subject — some of them his own witnesses and friends.) His solicitations to her for her to consent to go with him to the west, amounted to importunity. They had frequent and intemperate altercations on the subject, he insisting that she should accompany him in his move to the west, and she pertinaciously refusing and declaring that she never would leave the place near her mother's, where she then lived. Perceiving that he could make no impression upon her mind, nor effect any change of her will, he announced to her his determination to go without her, unless she should choose to accompany him. She said he might go and leave her, provided he v■ I had no idea or intention in the world of throwing that water in that boy's eyes. * * * There was quite a crowd came into the house, Mr. Kelly and Mrs. Kelly. I don't remember what I said; there was such excitement, and •» EFFECT OF MARRIAGE. 159 they were makings such distress, I didn't know what was said. All I recollect, Mr. Kelly said to my husband, 'If that was you, I would fix you.' * * * gy reason of his making threats, and there was such a crowd outside, I thought I had better go up and see what they covild do about it; and I thought I had better go away from there; that they would mob the house, or something. I had to go through the front to get out, and I went down Elm (Lami) street and she, Mrs. Kelly, was in the alley. I got on the car and it did not go, and 1 got on another, and on that car I was arrested. I was going to Jo Hon Yee, to tell him, and see what I should do. They were making such threats, that scared me. That was my object in going there, and no other object. There were only two places, the front and back way. I went out the back, right by Mrs. Kelly's house. I could have gone from the house and got on a Fifth street car, but I went by Mrs. Kelly's house. Q. Where was your husband at the time the water was thrown — whatever they call it? A. He was ironing at one side of the room. Q. How far were you from him when you threw the water ? A. He was ironing at the same table and never moved. The water that I threw was wash water from the day before. I had used it with my hands. I worked myself, and he did also. That was the kind of water that struck the boy." Dr. Alt and Dr. Fulton were called. Dr. Alt gave it as his opinion from the examination made that evening, that the injury was caused by a strong alkali thrown into the boy's eyes, perhaps , concentrated lye. Dr. Fulton did not analyze the fluid, but it was corrosive. OPINION, I. As the defendant was convicted under the second count, the instruction as to that count only is here for review. The court charged that the assault must have been made with the intent then and there, feloniously, on purpose and of malice aforethought, to maim the boy; and that defendant in pursuance of this intent did, feloniously, on purpose, and of her malice afore- thought, cast, or throw, the corrosive fluid into the eyes of the boy, and did, in this way, put out his eyes. The court correctly defined the terms, malice, malice afore- thought and on "purpose ;" and correctly defined a very plain sta- tutory offense. 160 LAW OF HUSBAND AND WIFE. 2. The objection to instruction, numbered 4, is equally un- founded. The court did not assume any fact, but left the jury free to find "that the defendant knowingly and wilfully threw some corrosive fluid into the face and eyes of Walter Kelly." If she did this, the court correctly told the jury the law presumed she intended the natural consequence of her act, and, from the in- tentional throwing of such a dangerous instrumentality into the eyes of a child, the jury might infer malice. Instructions should be concise. We think this instruction submitted the state's side of the question very clearly, and is not open to the criticism made on it by defendant. Immediately fol- lowing it, and in the same connection, the court charged the jury that, before they could find the defendant guilty, they must be- lieve, beyond a reasonable doubt, that the defendant intention- ally, or on purpose, mtd not accident ly^ threw the fluid into the boy's eyes ; and warned the jury that the law presumed her inno- cent, until she was proven to be guilty of the charge beyond a rea- sonable doubt. The issue was submitted fairly, whether defendant intention- ally or accidentally threw this corrosive substance in the child's eyes. The jury found she did it intentionally. ' 3. The presumption from flight was properly stated. If the jury found she fled to avoid arrest, it raised a presumption of guilt. If she fled from a mob, then no such presumption arose. State V. GriMn, 87 Mo. 608 ; State v. Brooks, 92 Mo. 542. 4. The ninth instruction has been approved so often, it is useless to give either reason or authority for it. 5. There was no error in failing to instruct the jury on the offenses denounced in sections 3489, 3490, 3491, 3492. The evidence for the state, if true, made a case of mayhem alone. The evidence for defendant, if true, entitled her to an acquittal; she was guilty of mayhem or nothing, under the evi- dence in this case. The court properly confined itself to the charge in the indictment, and the offense of which there was evi- dence in the case. • 6. But the defendant earnestly contend? that the court erred ' in not qualifying the seventh instruction by adding thereto these words : "There was no evidence that the defendant's husband disapproved of the acts of the defendant, and, unless that fact is estalDlished, the jury should acquit the defendant;" and in refus- ing instruction, numbered 5, prayed in her behalf, to the effect that if her husband was present the jury must acquit her. EFFECT OF MARRIAGE. 161 The court gave the following declaration: "7. The court instructs the jury that the evidence in this case is sufficient to show that the defendant, at the time of the alleged commission of the crime, was a married woman, and the wife of Ma Foo. Now, even though you may believe, from tlie evidence, that the defend- ant committed the crime as charged in the indictment, yet, if you further believe that she committed the crime in the presence of her husband. Ma Foo, and that he was present at the time when she threw the fluid, then the law, in the absence of other and fur- ther culpatory and explanatory evidence against the defendant herself, presumes that she acted under the immediate coercion of her husband, and, in such case, you will find the defendant not guilty. This presumption of law, however, that a wife acting in the presence of her husband is acting under his coercion, and that she is, therefore, not guilty of a crime committed in his presence, is prima facie, only, and may be rebutted by other proper evidence in the case. And if, in this case, you believe from all the testi- mony before you that the defendant was the sole acting party, and committed the crime as charged without any incitement on the part of her husband, and without his consent, or that the de- fendant was the sole instigator of the crime, and committed the same as charged in the indictment, then you will find the defend- ant guilty, even though you may believe that her husband was present when she committed the act." A married woman's responsibility for crime, committed in the presence of her husband, is variously stated by the text- writers. Blackstone, in his commentaries, book i, page 444, says: "And in some felonies, and in some inferior offenses committed bv her through constraint of her husband, the law execuses her ; but this extends not to treason or murder." And in his fourth book he says : "And she will be guilty in the same manner of all those crimes which, like murder, are mala in se, and prohibited by the law of nature." See also Russell on Crimes [9 Ed.] p. 34. From a close examination and comparison of the cases and the text-writers, the general rule admitted by all seems to be, that if a wife commit any felony, with the exception of murder and treason, and perhaps some other heinous felonies, in the presence of her husband, it is presumed, in the absence of evidence to the contrary, that she did it under constraint by him, and is, therefore, excused. i Bennett's Leading Criminal Cases, 81 ; Common- wealth V. Neal, 10 Mass. 152; i Bishop's Criminal Law, 452; State v. Williams, 65 N. C. 398. 162 LAW OF HUSBAND AND WIFE. But the authorities are equally agreed, that this presumption is only prima facie, and rebuttable. So it is said in Russell on Crimes, pages 32, 33, "But this is only the presumption of law, so that if, upon the evidence it clearly appear that the wife was not drawn to the offense by her husband, but that she was the principal inciter of it, she is guilty." "And if |he commit a theft of her own voluntary act, or by the bare command of her husband, or be guilty of murder, treason or robbery in company with, or by coercion of, her husband, she is punishable as if she were sole." And this is the doctrine of all the states in the United States, i Wharton on Criminal Law, sec. 79; Seiler v. People, TJ N. Y. 411 ; Tabler v. State, 34 Ohio St. 127; Uhl's Case, 6 Gratt. 706; State V. Williams, 65 N. C. 398 ; Miller v. State, 25 Wis. 384. In Arkansas, by force of statute, the presence of the husband merely is no defense to the wife, unless it "appear from the cir- cumstances in the case, that violence, threats, commands or coer- cion were used." Freel v. State, 21 Ark. 212. It will be observed that learned counsel for defendant desire us to ingraft an additional modification on this rule of evidnece, and require the state to go further, and prove that the husband not only was not the inciter or responsible criminal agent in the commission of the crime, but that he actually disapproved it, and, in the absence of evidence of his disapproval, the wife must be acquitted. This is not the law. There is little in the present or- ganization of society upon which the prima facie presumption it- self can stand, and certainly nothing calling for any extension of the presumption. The statutory rule in Arkansas, supra, is more in accord with the spirit of the age in which we live. In New York, by the penal code of 1881, sections 17 and 24, the presumption is entirely abolished. In this case if the wife is guilty at all, she, alone, committed the criminal act, which forever deprived the boy of his eyesight. By her own evidence she exonerates her husband of all complicity in the crime. There is not a semblance of constraint. Her re- sponsibility was fairly submitted to the jury. The instruction gave her the full benefit of the presumption, and the jury must have found that she was neither coerced or constrained by act, deed or word of her husband to do what she did, but that she acted from her own free will. Had the act resulted in death, un- der the common law authorities she would not have been entitled to the benefit of the presumption of constraint. EFFECT OF MARRIAGE. 163 What difference there is in principle between the culpability of one who, on purpose and of malice aforethought, destroys the sight of a little child, and one who kills, we leave to others to state. We confess we are unable to formulate any.' The defend- ant has been fairly tried, and the jury have convicted her. This was their peculiar province. We can but regret for the sake of humanity that she could not have been shown innocent of the charge. At this distance, it is hard to conceive of such a crime by a woman, and that woman a mother, with so little "provocation or motive. The remarks of Mr. Harvey did not transcend the bounds of legitimate argument. He expressly subordinated his own views of the law to those expressed by the court in its instructions. Finding no error in the record, the judgment is aftirnied. All concur. 2 WIFE'S DEBTS AND CONTRACTS. ALLEY v. WINN, 134 MASS. 77. (1883). Contract for necessaries furnished to Susan B. Winn, the wife of the defendant, while living apart from him, from October 14, 1881, to February 7, 1882. At the trial in the Superior Court, before Colburn, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion. /. Brozvn, for the defendant. H. M. Knowlton, (A. E. Perry with him), for the plaintiff. Devens, J. — At the trial, upon the evidence offered upon both sides, the court ruled that "the wife had no justifiable cause to leave her husband, and could not carry his credit with her on that account." To this ruling no objection was made, but, against the defendant's objection, the court also instructed the jury, that if the husband and wife were living separately and apart by mu- tual consent or his voluntary consent, and she had no means of support, and he had made no provision for her support, he would be liable to pay for articles furnished her which were necessaries, during such separation or living apart from each other. This is a correct statement of the law upon the facts embraced in the proposition, and to it the defendant has no just exception, if it was all that the case required. It is to be considered whether there were other facts of im- portance appearing in the case which called for other or additional 164 LAW OP HUSBAND AND WIFE. instructions, and whether these were called to the attention of the presiding judge by any proper request. Whether the wife left the husband originally with his consent or not, was in dispute; but it appeared that some time after such departure a proceeding had been brought by her for a separate maintenance ; and that an agreement was then made between the husband and wife, that, if he would pay her the sum of $300, she would release her dower, whenever ^requested by him, in any lands he might hold, and would make no further claim on him for support or any other cause; that this money had been paid, and that she with a surety had actually executed a bond to him conditioned that she would make no such claim. It did not appear that she had thereafter offered to return to her husband, or had made any claim upon him for support. The defendant asked the court to rule, as matter of law, that the evidence did not show that they were living separately and apart by such mutual consent, or under such circumstances as would render him liable for her support during the period of her absence. The defendant also contended that, at the legal pro- ceeding in 1875, he had provided for her support. While the attention of the presiding judge was drawn less distinctly than it should have been to the effect of the transaction into which the husband and wife had entered, or assumed to enter, at the termi- nation of the proceeding by the wife for a separate maintenance, yet the request, in connection with this evidence, that the jury should be instructed that they were not living apart "by such mu- tual consent and under such circumstances" as would render the husband liable for her support, so far brought this matter to the consideration of the court, that, if the defendant was entitled to an instruction to this effect, based on the arrangement made by the two parties, he may properly ask a new trial. ,■ — '\.r\ this view, the inquiry is presented whether, if a husband /and wife live apart by mutual consent, the wife receiving a sum / not sufficient for her support, but agreeing that she will release dower, thereafter support herself, and make no claim upon him, she so carries his credit with her that she may render him respon- sible for necessaries, not having, after such arrangement, made any claim for support, or offered to return. The ground upon which a wife is entitled to pledge the credit of her husband is usually treated as depending upon the doctrine of agency. Sometimes this right results merely from its general principles. Where a wife is at the head of a household, and, acting EFFECT OF MARRIAGE. 165 as its mistress, orders the usual supplies, such as are needed for ' its appropriate maintenance, or even the clothing of its younger members, who are taken care of by others, the ordinary reasons upon which it is held that any one who holds out another as au- thorized to contract for him is bound by the agreement thus made, would make the husband liable. Beside this agency, which would be inferred from cohabita- tion, there is an agency on the part of the wife, resulting from the marital relation, which authorizes her to bind him even against his will. His consent in such case is conclusively implied by rea- son of this relation. As it is his duty to furnish her suitable sup- port, if he fails to do so while she is residing with him, he is liable for necessaries suitable to her condition in life. Dexter v. Booth, 2 Allen, 559. Raynes v. Bennett, 114 Mass. 424. If he drives her from his house, or so conducts himself that she is justified in leaving by reason of his adultery, his violence or his cruelty, she carries his credit with her, so far as necessaries are concerned. If she lives apart from him by his consent, no condition or agree- ment being made that she shall support herself, she not having che means of support and no proper provision being made there- for by him, she carries his credit with her for necessaries. On ^he other hand, where the wife, without justifiable cause, aban- dons her husband, or where, as by reason of her adultery, he is justified in withdrawing from her society, she does not carry his credit with her. These are familiar principles ; but a class of cases is presented where the husband consents that the wife may live apart from him, upon the agreement that she will accept a certain sum for her support, and will thereafter maintain herself from her own means or by her own exertions. The law applicable to such cases should have been considered in the instructions in the case at bar. The transaction, by which the suit brought by the wife was deter- mined, was not a mere settlement of a lawsuit, but an agreement between the two parties that, on the payment of a certain sum, the wife would thereafter fnake no further claim upon him for support, or for any cause whatever. While made by attorney on either side, the right of the "Attorney to make it was not questioned. It was accompanied by a bond, with surety, made by the wife to the husband, conditioned to perform this agreement. The ac- count for necessaries furnished the wife was incurred several years after this transaction, and she had never returned or offered to return to the husband, or called on him for support. 166 LAW OF HUSBAND AND WIFE. The effect of 'a transaction such as this does not appear to have been discussed in any Massachusetts case. It differs from those where it has only appeared that the wife has lived apart by consent of her husband, no proper provision being made for her support, in this, that the dwelling apart was here accompanied by an agreement that she would support herself and would no longer make any claim upon the husband. We assume that the sum of $300 was not a sufficient permanent provision for her. Certainly it might properly have been held insufficient by any jury. In BiMn v. Bignell, 7 H. & N. 877, it was held that, where a husband and wife agreed to live apart, the wife agreeing to ac- cept an inadequate f>rovision for her support, and then to main- tain herself; the consent of the husband must be deemed a con- ditional one ; that, if the condition were not performed, she could not be held to be living apart with his consent; and that he could not be charged with her expenses for necessaries, in the absence of any offer by her to return, or any request by her for support under his own roof. In Eastland v. Burchell, 3 Q. B. D. 432, it was held that, where a husband and wife had arranged for a separation, and a provision was made for the wife which was insufficient, but which she consented to accept, agreeing to make thei'eafter no claim upon the husband for support, the husband was not liable for bills incurred by her for necessaries. Mr. Justice Lush remarked : "Where the parties separate by mutual consent, they may make their own terms ; and, so long as they continue the separation, the terms are binding on both." "She cannot avail herself of her husband's consent to the separation, which alone justifies her in living apart from him, and repudiate the conditions upon which that consent was given." Whatever may have been the original separation of the parties in the case at bar, whether by mutual con- sent or by an abandonment by the wife, whether justifiable or otherwise, yet from the time the agreement was entered into by them, the husband paying the money agreed upon in connection therewith, and the bond having been given upon the one side and accepted upon the other, they were living apart upon these terms, to which they had mutually assented. The consent of the hus- band to this thereafter was based upon the performance by her of her agreement to support herself, and the authorities above cited directly apply. They rest upon the satisfactory reason, that the consent of the husband that the wife shall live apart from him, upon the agreement and condition that she shall support herself, EFFECT OF MARRIAGE. 167 is dependent upon the performance of the condition; and that, failing to perform, she cannot contend, nor can it be contended on her behalf by those who furnish her supplies, that she carries in her absence her husband's credit with her, unless at least she has offered to return to him and the offer has been refused. In order to avoid misunderstanding, it is perhaps proper to add that we do not here intend to intimate that an agreement by the wife to release her dower, such as was here made, could be enforced, or that the husband could, by an agreement of the wife that she would support herself, exonerate himself from his duty in that matter, should she offer to return to him. No such prop- ositions are before us. We decide only, that, where his consent that she shall live apart from him is based upon her agreement that she shall support herself, it cannot be held to exist when she does not perform the condition, and she is not by such consent, by any implication of law, authorized to pledge his credit for iier support. The instructions given were defective, in failing to call atten- tion to the circumstances under which the husband and wife lived apart, and to the agreement they had made. Exceptions sustained. SKINNER v. TIRRELL, 159 MASS. 474. (1893). Morton, J. — This is a bill in equity, in which the plaintiff, who has advanced money to the defendant's wife while living apart from her husband, which she expended, it is alleged, in the purchase of necessaries, seeks to be subrogated to the rights of the persons furnishing the necessaries, and prays that the defend- ant may be ordered to pay to her the amount so advanced. The defendant demurred to the bill. The demurrer was sustained and the bill was dismissed, and the plaintiff appealed. The demurrer was a general one, and it was claimed at the argument, as one ground of it, that the bill did not set out suffi- cient facts to show that the wife was living apart from her hus- band for justifiable cause. Without considering whether this ob- jection was well taken, we assume that, if valid, it could be re- moved by amendment. The question then is whether the bill, if amended so as to remove this objection, can be maintained either on the ground of subrogation or on the ground of a general equity. We think it cannot stand on either. There can be no subrogation unless there is something to be subrogated to. A debt or liability cannot be created where none 168 LAW OF HUSBAND AND WIFE. existed for the purpose of effecting a substitution. There never was any liability on the part of the defendant to the parties who furnished the -Cvife the necessaries. The goods were sold to her and were paid for by her. They were not furnished on the de- fendant's credit, but on the wife's. The money that was advanced by the plaintiff was not advanced to the parties who furnished the necessaries, but to the wife, to be expended by her as she saw fit. There is no ground, therefore, for the application of the doctrine of subrogation. Although the right of subrogation does not de- pend on contract, but rests on natural justice and equity, there must be either an agreement, express or implied, to subrogate, or some obligation, interest, or right, legal or equitable, on the part of the party making the payment or advance in respect of the mat- ter concerning which payment is made or money advanced, in or- der to entitle him to subrogation. Hart v. Western Railroad, 13 Met. 99. Amory v. Lowell, i Allen, 504. Wall v. Mason, 102 Mass. 313. Aetna Ins. Co. v. Middle-port, 124 U. S. 534. Cans V. Thieme, 93 N. Y. 225, 232. Arnold v. Green, 116 N. Y. 566. Nolte V. Creditors, 7 Mart. (N. S.) La. 602. Johnson v. Barrett, 117 Ind. 551. McNeil v. Miller, 29 W. Va. 480. Miller's ap- peal, lie.) Penn. St. 620. Suppiger v. Garrels, 20 Bradw. (111.) 625. Gadsden v. Brown, Speers Eq. 37, 41. De Concilio v. Brownrigg, 25 Atl. Rep. 383. Brezver v. Nash, 16 R. I. 458, 462. Blackburn Building Society v. Cunliffe, 22 Ch. D. 61. Stevens v. King, 84 Maine, 291. Sheldonvon Subrogation, §§ 2, 3, 240. A mere volunteer is not entitled to subrogation. Aetna Ins. Co. V. Middleport, Arnold v. Green, and Gadsden v. Brown, ubi supra. Sheldon on Subrogation, §§ 241, 242, and cases cited. Nor is one who lends money to another to pay a debt entitled as a matter of right to stand in the creditor's shoes. Sheldon on Subrogation, §§ 241, 242, and cases cited. So far as subrogation is concerned, the plaintiff's contention resolves itself into the pro- position that the defendant's wife,could have bought on her hus- band's credit the necessaries which she purchased and paid for with the money advanced to her by the plaintiff ; that if the plain- tiff had paid the parties supplying the necessaries their severall de- mands, she would have been entitled to be subrogated to their claims against the defendant; and that therefore a decree should be entered in her favor against the defendant in this suit. If the premises are correct, manifestly the conclusion does not follow from them. There are ancient and modern cases in England which hold EFFECT OF MARRIAGE. 169 that a person advancing money to a married woman under cir- cumstances like those in this case can recover the same of the hus- band in equity. Harris v. Lee, i P. Wms. 482. Marlozv v. Pi^ field, I P. Wms. S58. D ear e v. Soutten, L. R. gEq. i^i. Jenner V. Morris, 3 DeG., F. & J. 45. See also In re Wood, i DeG., J. & S. 465. These cases have been followed in this country in Connecti- cut, Kenyan v. F arris, 47 Conn. 510, and there is a dictum, in a case in Pennsylvania. Walker v. Simpson, 7 Watts & Serg. 83. To the same effect certain text writers, also folowing the Eng- lish cases, have stated the law to be as there held, i Bish. Mar., Div. & Sep. §§ 1 190, 1 191. Pom. Eq. Jur. §§ 1299, 1300. 2 Kent Com. 146, note. Schouler, Domestic Relations, § 61, note. But those cases do not appear to us to rest on any satisfactory principle. It was apparently conceded by the Lord Chancellor in Jenner v. Morris, supra, that they did not. He seems to have yielded to them simply as precedents which he was bound to fol- low. The earliest one, Harris v. Lee, on which the subsequent ones rely, referred the jurisdiction, without much discussion or coiisideration of it, to the principle of subrogation. For reasons already given, we think that principle inapplicable. It is said that equity has jurisdiction, because there is no remedy at law. It is admitted that there is none at law. But it is contended that the defendant was bound to furnish his wife with necessaries; that the money which the plaintiff advanced to her was actually ex- pended in good faith by her for necessaries ; that it will be no hardship upon the defendant to be obliged to pay for necessaries which the law would have compelled him to furnish; and that in the interests of justice, equity should compel him to pay the plain- tiff the sums which she has advanced. In effect this is the same as saying that in equity money advanced to a wife living separate from her husband and for justifiable cause, and expended by her in good faith in the purchase of necessaries, should itself be re- garded as necessaries and recoverable accordingly. At law it is clear that money is not necessaries, and that a married woman liv- ing separate from her husband cannot borrow money on his credit to purchase necessaries. What is necessaries must be the same in equity as in law. It cannot be one thing on one side of the court and another thing on the other. There may be strong rea- sons why married women, compelled by their husband's miscon- duct to live apart from them, should be allowed to borrow money on their husband's credit for the purchase of necessaries. It is 170 LAW OF HUSBAND AND WIFE. . for the legislature, if it deems it advisable, to give them such power. In this state they are not without a remedy in such cases. The Probate Court may, upon their petition, order the husband to pay to them from time to time such sums of money as it deems expedient for their support. Pub. Sts. c. I47> §§ 33 ^* ^^Q- ^^ i* possible that this statute should be taken as a declaration of the legislative sense that a married woman living apart from her hus- band should obtain money for necessaries through the aid of the Probate Court, and not by pledging his credit. However that may be, a majority of the court can discover no satisfactory ground on which jurisdiction in equity of the present suit can rest. Decree affirmed. LEUPPIE V. OSBORN, 52 N. J. Eq. 637. (1894). On motion to dismiss bill. Van Fleet, V. C. — The object of this suit is to establish an equitable debt and enforce its payment. The complainant rests his right to the relief he asks on the following facts : Allen Os- born died in March, 1893, leaving a will which has been admitted to probate, and by which he directs that all his just debts should be paid as soon as could be conveniently done after his death. For several weeks prior to his death, Mr. Osborn was so weak and helpless that he was unable to sign his name or to give atjy atten- tion to any business. Before becoming so, he was always pos- sessed of ready money and provided well for his family, and it was his custom to pay cash for his family supplies. A short time prior to his death, the funds which he had placed in the hands of his wife, became exhausted, and he being unable, in consequence of his helplessness and sickness, to provide additional means, and his wife, being in need of money for the support of his family, applied to the complainant for a loan of $i(X) to be exjjended for that purpose. The loan was made and the money was expended in the purchase of such things as were necessary for the support of Mr. Osborn's family. Since Mr. Osbom's death the compain- ant has requested the executors of his will to pay him, and they have refused. This suit is brought to compel payment. The de- fendants move the dismissal of the bill, on the ground that the case made by it does not entitle the complainant to relief. The complainant contends that, as the money which he loaned to the testator's wife was spent for the support of the testator's EFFECT OF MARRIAGE. 171 family, ne has a right, according to a well-settled rule of equity jurisprudence, to be subrogated to the rights of those who pro- vided the necessaries, and to have his debt enforced in equity against the testator's estate as they might have done at law, if the money which he loaned had not been used to pay for them. In England it is settled by authority, both ancient and modern, that when a husband has deserted his wife without making provision for her support, and a third person advances money to her which she uses to obtain necessaries, an equitable debt is thereby created which may be enforced against the husband. The first repoEted case in which this principle was laid down is Harris v. Lee, i P. Wms. 482, decided in 1718. There a hus- band had twice given his wife "the foul distemper," in conse- quence of which she left him and went to London to be cured. Before going, she borrowed money to pay doctors and for neces^ saries. The husband subsequently died, leaving a will by which he devised land to trustees for the payment of his debts. On a bill by the person who made the loan, it was held that he was entitled to recover. Sir Joseph Jekyll, master of the rolls, in deciding the case, said : "Admitting the wife cannot at law borrow money, though for necessaries, so as to bind the hus- band, yet this money being applied to the use of the wife for her cure and for necessaries, the plaintiff that lent this money must in equity stand in thfe place of the persons who found and pro- ' vided such necessaries for the wife." Lord Campbell, in the subsequent case oiJenner v. Morris, 3 De G., F. & J. 45, 52, in trying to give the reason why equity, in such a case, subrogated the lender to the rights of the persons who provided the neces- saries, said : "It may possibly be that equity considers that the tradespeople have for valuable consideration, assigned to the party who advanced the money the legal debt which would be due to them from the husband on furnishing the necessaries." So far as the reports show, no attempt was made to enforce the principle established by Harris v. Lee, from 1718, when that case was decided, until 1849, when the case of May v. Skey, 16 Sim. 588, arose. In the case last named, it appeared that a hus- band had gone abroad and left his wife wholly unprovided for, and that the plaintiff, during the husband's absence, had lent his wife money, which she had used to obtain necessaries. Vice- Chancellor Shadwell, in deciding it, distinguished it from Harris V. Lee, remarking that in Harris v. Lee there were trusts for the payment of the husband's debts, and that it was that which 172 LAW OF HUSBAND AND WIFE. gave the court jurisdiction. And then added: "In this case there is no trust to execute, but the plaintiff sues merely as a creditor of the husband, and as a mere creditor he has no equity against the husband." The view of the Vice-Chancellor seems to have been that, in a case where there was no trust or other ground of equity cognizance, the question whether the plaintiff is or is not a creditor of the husband must be determined by a court of law. Jenner v.Morris was decided by Vice-Chancellor Kindersley in i860, I Drew. & S. 218, and on appeal by Lord Campbell and Lord-Justice Turner in 1861. 3 De G., F. & J. 45. In this case it appeared that the husband had deserted his wife without making any provision for her and without making any imputa- tion of misconduct against her. After the desertion the wife's ■brother advanced money to her, which she used to obtain neces- saries, and he also paid for necessaries supplied to her by trades- men. On the question whether or not, under these facts, the husband was liable, no doubt seems to have been entertained. Harris v. Lee was affirmed and followed, and May v. Skey over- ruled. In answer to an objection made by counsel, that Harris V. Lee was a very old case and did not appear to have been acted upon in modern times. Lord- Justice Turner remarked, in con- sidering old authorities, it must be borne in mind that the decrees of the court very often furnish the very best evidence which can be had of the extent of its jurisdiction and of the principles by which it is guided, and that in disregarding the older decisions there is great danger of breaking in upon its principles. Deare v. Soutten, L. R. 9 Eq. Cas. 151, was decided by Lord Romilly, master of the rolls, in 1869. In this case, as in all the other cases where the husband was adjudged liable, it appeared that the defendant had deserted his wife, leaving her unprovided for, and that the plaintiff had advanced money to her which she had used to obtain necessaries. On the authority of Jenner v. Morris, the husband was held liable. The principle established by Harris v. Lee was recognized by the Supreme Court of Pennsylvania, in Walker v. Simpson, 7 Watts & S. 83, and the Supreme Court of Connecticut, in Kenyan V. F arris, 47 Conn. 510, after a thorough examination of all the authorities, adopted it as an unquestionably sound rule of equity jurisprudence. The reasoning of the court in this last case appears to me to be more convincing than that advanced in any of the prior cases. Stated in substance it is to this effect, that EFFECT OF MARRIAGE. 173 it can make no difference to the husband, whether he is held liable for money or for the price of necessaries, so long as no recovery for money can be had, unless it is shown that it has actually been spent for necessaries ; that whether the wife obtains what she is entitled to by one means or the other, the law will discharge its whole duty to the husband by protecting him from liability for anything beyond necessaries, but it cannot discharge its duty to her unless it compels him to support her. If he has a choice as to the method in which he will extend support, the law will let him exercise it, but if he refuses to make a choice and does not provide for her in any way, then she should have a right to resort to any means which will give her what she needs. Besides, it is not certain that the husband's credit will at all times give his wife what she is entitled to — circumstances, may arise when nothing but ready money will enable her to get what he is bound to furnish. This reasoning seems to me to be unanswerable. By force of the principle under consideration, it is manifest that the husband's liability rests not on his misfortune, but on his fault — on his refusal or failure to do his duty to his wife. It has no other foundation. It is only in cases where he has deserted or abandoned his wife, without making provision for her support, that he has been held liable for money advanced. That is the utmost extent to which his liability, by force of this principle, has as yet been carried. The bill shows that when the loan in this case was made, the defendants' testator was un- conscious or in a state of complete disability. He was so sick, weak and helpless as to be incapable of doing any business of any kind. Now, unless pure misfortune, unmixed with fault of any kind, confers authority upon a wife to pledge the credit of her husband for money to buy necessaries, the wife's act in this case was wholly unauthorized and imposed no liability on her husband. To hold a husband liable under such circum- stances will unquestionably obliterate all distinction, in cases of this character, between fault and misfortune, and extend the principle under consideration to cases entirely foreign to both its. letter and its spirit. The bill must be dismissed, with costs. 174 LAW OF HUSBAND AND WIFE. MC CUTCHEN v. M'GAHAY, ii JOHNS. (N. Y.) 281. (1814). Brev C— McCutchen v. M'Gahay, 11 Johns. (N. Y.) 281. (1814). In Error, on certiorari, from a Justice Court. McCutchen brought an action of assumpsit against M'Gahay, for board and lodging furnished by the plaintijBf to Ellen, th6 wife of the de- fendant. The plaintiff, who is the father of the defendant's wife, fur- nished her with meat, drink and lodging, in his family during which time she was in ill health. McGahay was married to Ellen about the year 1801. The following advertisement was inserted in a newspaper, printed in Orange County: "Whereas, my wife, Ellen McGahay, has left my bed and board, without any provocation, this is to forewarn all persons crediting her on my account, as I am determined to pay no debts of her con- tracting. Fourth of May, 1801. Owen McGahay." In the summer of 1813, the defendant's wife applied to an overseer of the poor of Newburgh for support, and the overseer called on the defendant to support her, and the defendant an- swered "that she left him twelve years ago, &c., and that he would have nothing to do with her." About the same time she directed a person to go to the defendant, and endeavor to efifect a reconciliation between her and her husband; but, though re- quested to go with the person to her husband, for that purpose, she refused. The defendant refused to listen to the request to take back his wife. The person who applied to him did not state that he was authorized or requested by the wife to make the application. The defendant proved that about ten years ago, without any misconduct on his part, his wife refused to live with him any longer, and, accordingly, left him, without his consent, and con- trary to his entreaties ; that she left with the defendant a child of the age of six months, which he has ever since taken care of, and that she had never since returned to live with her husband. The jury, before whom the cause was tried, found a verdict for the defendant, on which the court below gave judgment. Platt, J., delivered the opinion of the Court. Cohabitation is evidence of the husband's assent to contracts made by his wife, for necessaries, and it can be repelled only by express notice of previous dissent, or notice not to trust her. If the hus- band turns away his wife, he gives her credit wherever she goes, and must pay for necessaries for her ; but if she runs away from EFFECT OF MARRIAGE. 175 him, though not with an adulterer, he is not Hable for any of her contracts. Herrington v. Perrot, 2 Ld. Raym. 1006. per Holt, Ch. J. In Longivorth v. Hockmore, 12 Mod. 144. i Ld. Raym. 444. Lord Holt decided, that if the wife elopes, though the tradesman has no notice of the elopement, if he gives credit to the wife, even for necessaries, the husband is not liable; but if the wife elopes, without an adulterer, and afterwards offers to return, and the husband refuses to receive her ,his liability for her contracts for necessaries is revived, from that time, nothwith- standing a general notice not to trust her. Child v.Hardimer, 2 Str. 875. See also, Bolton v. Prentice, 2 Str. 1214. 3d ed. by Nolan, and the note of the editor. In the case of Baker v. Barney, 6 Johns. Rep. 72, the hus- band and wife parted by consent, and the husband promised a separate maintenance, but failed to fulfill that promise; and the court held him liable on her contract for necessaries. In the present case, the wife eloped without an adulterer, but she did not offer to return*to her husband. Her proposition was made to the witness, and never communicated to her husband ; and when requested by the witness, she refused to go with him to her husband in order to a reconciliation. The plaintiff, there- fore, is not entitled to recover. To sustain such an action woiild encourage disobedience and infidelity in the wife. The duties of the wife, while co- habiting zvith her husband, form the consideration of his lia- bility for her necessaries. He is bound to provide for her, in his family; and while he is guilty of no cruelty towards her, and is willing to provide her a home, and all necessaries there, he is not bound to furnish them elsewhere. All persons supplying the necessaries of a married woman, separate from her husband, are bound to make inquiries as to the cause and circurristances of the separation, or they give credit at their own peril. The judg- ment below must be affirmed. Judgement afHrmed. 176 LAW OF HUSBAND AND WIFE. KELLER V. PHILIPS. 39 N. Y. 351. (1868). Appeal from the judgment of the Supreme Court in Gen- eral Term, for the Fourth District, reversing a judgment of the County Court and Justice of the Peace, in favor of the plaintiff for $111.91. The action was brought to recover for goods, etc., alleged to have been sold to the defendant, his family, agents and servants, at the defendant's request, on the 20th day of January, i860, and afterward to and including the 15th of October, 1861. The only defense set up in the answer was, that, on the 6th of January, i860, the defendant forbade the plaintiffs' trusting his wife on his account, and told the plaintiffs that he would pay no more debts contracted by his wife without his consent; and that afterward, without the defendant's knowledge or consent, the plaintiffs sold the goods claimed for, to her, and wrongfully trusted her contrary to the express command of the defendant. On the trial it appeared, that, for«four or five years previous to the transactions in question, the wife and children of the defendant had been accustomed to procure goods at the plaintiffs' store and the defendant had settled all the bills during that time. On the 6th of January, i860, the bill for purchases made chiefly by the wife, from December 16, 1858, to December 18, 1859, being unpaid, the defendant gave to the plaintiffs his note or due-bill for the amount of $43.92, which, when it amounted by accruing interest to $44.94, appears to have been paid. The time of the payment is not, definitely fixed by any witness, but, if it remained unpaid until $1.02 had accrued for interest," it is obvious that the time of payment was about the 6th of May, 1 86 1. The evidence, that the plaintiffs were forbidden to sell to the wife or family of the defendant on credit, was the testimony of the defendant, and of Keller, one of the plaintiffs, and Snell, their clerk. The defendant testified, that, on the 6th of January, i860, when he went to the plalintiffs' store to settle the previous bill, and gave the note therefor, he told the plaintiff Keller "that he forbid the plaintiffs of making any charge against him, got by his wife, family, or any one else — told him that he was not able to pay the bills, and had not the means to pay with. That in strong terms he declared to Keller, he would not pay another cent if he trusted his wife, and that Keller replied 'just as you say.' " That the first he knew that his wife and family continued trading at the plaintiffs' store was, when a bill EFFECT OF MARRIAGE. 17T (^ which contained charges to January 31, 1861), was laid upon his lap, in the store of one Norton ; and, that he knew nothing of his wife and family getting goods at the plaintiffs' store, and using them in the family, between January 6, i860, and the last of October, 1861. He further testified, that he furnished his wife and family with money and means to clothe herself and family. The plaintiff Keller testified, that the defendant forbid his trusting his wife at the tim^ when he paid the note, and that he thinks it was not at the time when he gave the note. That he replied, that he "would not refuse his wife any credit she asked for." That the defendant was angry when he paid the note, and (in the like terms testified to by the defendant) declared that he would not pay it (i. e., anything sold to his wife on credit). That he told defendant he should not refuse his wife credit, for he did not mean what he said, that if he refused, the defendant "would be mad." (This latter statement, the defendant in his testimony contradicted.) Snell, the clerk, testified, that, "after paying the note, and as the defendant was about to leave the store, he told Mr. Keller not to trust his wife any more." Other particulars in the testimony of these witnesses left it at least doubtful, whether it was at the making of the note, or when the note was paid, that the prohibition was given. Tlje plaintiffs continued to furnish goods, which were proved to have used in the defendant's family, toward clothing the wife, children, and sen^ant of the defendant, for bedding, and some articles for shirt-bosoms for the defendant. What was used for the servant was deducted from her wages. In aid of the defendant's claim, that he himself presented his wife with suitable means for the support of herself and the family, the defendant proved that he had had a boarder in his family, at two dollars a week; for nearly three years, and the question was then asked, whether his wife received the money paid for such board, and on objection the question was excluded. So, also, an inquiry whether the wife had the milk of two cows to sell, and apply the proceeds as she thought proper, was ex- cluded. The jury found a verdict for the plaintiffs, and the judgment entered thereon was affirmed by the County Court. On appeal, the Supreme Court reversed both judgments, and the plaintiffs appealed to this court. /. E. Dewey, for the appellant. 6". Hand, for the respondent. 178 LAW OF HUSBAND AND WIFE. Woodruff, J. The defendant was liable for such part of the goods mentioned in the plaintiffs' bill of particulars, as were purchased before the defendant gave notice, forbidding them to sell to his wife and family on credit. In addition to such assent as would be presumed from the nature of the purchases, and their actual use in his family, there was the authority resulting from some four or five years' dealings by the plaintiffs with the wife, and the payment of the bills by him, in direct sanction of the sales. This was ample to warrant the continuance of the like dealings, and bound the defendant to pay for the further pur- chases, independent of the question, how far, in the absence of such prior authority or sanction, the husband is bound by the contracts of his wife, in the purchase of goods for domestic use. There was conflict in the testimony, as to the time when the notice was given, the defendant fixing a date prior to the sale of any of the goods in question in the action, and the plaintiff Keller, and the clerk Snell, fixing a date, prior to which two- thirds of the goods had been sold and delivered. Had the plaintiffs, under such conflicting evidence, recovered for the goods sold prior to the payment of the defendant's note, on which occasion the plaintiff says the prohibition was given, it would show, that, in respect to the time when the notice was given, which was set up in the defendant's answer as his sole defense, the recollection of the plaintiff and the clerk was deemed by the jury more reliable than the recollection of the defendant, and there could be no reason for disturbing the judgment. But the recovery was also had for the goods sold after (according to the testimony of the plaintiff and the clerk, as well as that of the defendant) the notice was actually given. And, that the conversation did take place in which the defendant forbade the plaintiffs to sell goods to his wife upon credit, and declared in terms quite emphatic, though profane and indecent, that he would not pay for goods so sold, is not in doubt; it is sworn to by both parties, as well as in substance by one other witness. The rules of law relating to the power of the wife to bind her husband to payment for goods purchased by her for the use of herself and the family, are well settled. The husband is bound to provide for her and them whatever is necessary for their suitable clothing and maintenance, according to his and their situation and condition in life. And ordinarily, he will be presumed to assent to her making such purchases as, in the con- EFFECT OF MAERIAGE. 179 duct of the domestic concerns, are proper for her management and supervision ; but he is at Hberty to withhold such assent, and destroy such presumption, by an express prohibition; and if he does so, no one, having notice thereof, may trust the wife in reh- ance upon his credit, unless the husband so neglects his own duty, that supplies become absolutely necessary according to their con- dition. In the present case, therefore, the sale of the goods being proved, or not being denied by the defendant, the burden of proof was upon the defendant, to show that the credit was given against his express dissent, and notice thereof to the plaintiffs. This being proved, the burden was upon the plaintiffs, to show that the defendant did not suitably provide for his family, accord- ing to his ai|d their condition. Of that the plaintiffs were not to be the judges, except at the risk of establishing it by proof, and of that they offered no testimony whatever ; but on the trial ob- jected to the defendant's proving affirmatively that he did so, and the justice excluded evidence offered by him, tending to show in what mode, and in part to what extent, that provision was made. The defendant was not bound to show affirmatively, that he did so provide, and yet, so far as he appears to have been per- mitted, his testimony went to show that he did make suitable provison. Nor is it enough that the articles sold are, in their nature and description, necessary and suitable for the use of the wife and family. If they were not so, there would be no presumption of the husband's assent to the purchase in any case. It is indis- pensable where the vendor has been forbidden to sell upon the wife's request, on the husband's credit, that the vendor show, not only that the goods were in their nature suitable and neces- sary, but that the husband neglected his duty to provide supplies, and that, for that reason, they were necessary. These rules are elementary. Modern legislation, in pre- serving to the wife all her own property, has taken away some of the grounds upon which the duty of the husband Was placed by the common law, but it has not yet gone so far as to invest the wife with a discretion which the husband cannot control, and enable her to spend his property, or involve him in debt against his will. Matt v. Comstock, 8 Wend. 544; Kimball v. Keyes, 11 Id. 33; 2 Sw. Dig. 31 ; 2 Kent's Com. 1^6 -yBloivers v. Sturtevant, 4 Denio, 49. It is suggested by counsel for the appellants, that the jury 180 LAW OF HUSBAND AND WIFE. may have inferred, from the conversation testified to, that the defendant was not in earnest when he forbid the plaintiffs trusting his wife on his credit, that the plaintiffs did not think he was in earnest, and that the defendant knew that they did not think he was earnest. There was nothing in the conversation to warrant any such inference, and there was no room for specula- tion. On the contrary, no terms could be more explicit or more apparently sincere. True, the plaintiff Keller declared to him, that he would not refuse his wife any credit she asked for; but the defendant declared that he would not pay a cent of it. This declaration of the plaintiff Keller was either a rude and unwar- rantable defiance of the husband, or an expression of an intention to sell upon the wife's credit ; if the latter, he was at liberty so to sell, but such sales would not bind the husband. ^. It is also insisted, that, from the fact that a bill for a part of the goods was stated by the defendant to have been laid upon his lap in the store of one Norton, it might be inferred that he either never intended the notice or prohibition to be acted upon, or that he assented afterward to the sales made, and so practically revoked it. Had the plamtiffs shown the circumstances under which this bill was laid upon the defendant's lap, or by whom it was placed there, or that the defendant was called upon to pay it, and either assented or did not dissent, or any thing in short, from which it could reasonably be inferred that the defendant accepted it as an account against him, there would be force in the argument, but the bald fact that the bill "was laid on his lap in Norton's store," without showing by whom, or what was said, or whether any one representing the plaintiffs was present to receive any assent or dissent, or how it came to be in Norton's store, or what was done with the bill thereafter, or even that the defendant retained it in his possession, warrants no inference at variance with his previous declared purpose. For these reasons, the judgment of the General Term of the Supreme Court should be affirmed. EFFECT OF MARRIAGE. 181 WATKINS V. DE ARMOND, 89 IND. 553. (1883). From the Superior Court of Vanderburgh County. C. A. Buskirk, for Appellant. H. A. Y eager, for Appellee. Elliott, J. It is alleged in appellee's complaint, that appel- lant, by his cruel treatment, drove his wife and infant children from his home, and left them without the necessaries of life ; that the appellee received them into his house and supplied them with food, clothing and other necessaries, and that the appellant is in- debted to him for such necessaries in the sum of $1,000. Where a complaint states such facts as raise an implied promise it is good, although it does not in terms aver that there was a promise. Where the facts are properly pleaded from which the law implies a promise, the courts will apply the law and make the proper inference. Pomeroy Remedies 2d ed., p. 560, n; Wills v. Wills, 34 Ind. 106. Under the code, facts, and not mere conclusions, should be pleaded. If, however, appellant were right in affirming that the complaint should state the con- •clusion deducible from the facts, it is done in the allegation that "the defendant is indebted to the plaintiff, and all of which is due from the defendant to the plaintiff." We are not disposed, how- ever, to attach much importance to the statement of mere conclu- sions ; it is not from them, but from the facts, that pleadings are to be judged. A man who forces his wife and children from his home by inhuman treatment is legally bound to one who supplies the wife with necessaries, and if it were conceded that the complaint was bad in so far as it makes claim for necessaries furnished the chil- dren, it would still repel a demurrer; for a complaint good as to part of the relief demand will withstand a demurrer. Bayless v. Glenn, 72 Ind. 5. It' is shown by the evidence that the appellee is the father of appellant's wife, and it is insisted that this relationship precludes a recovery, for the reason that a father can not recover from his daughter's husband for necessaries furnished her after she had been driven by cruelty from the husband's home. We can not sanction any such doctrine. If the father provides a daughter thus expelled from her husband's home with necessaries, he has as much righj; to maintain an action as anybody else. We are clear that the appellant is bound to pay for the neces'Saries fur- nished his infant children. There may possibly be cases where 182 LAW OF HUSBAND AND WIFE. the father's duty is a mere moral one, but there are cases where the duty is a legal one. Where the children are of such tender age as to require a mother's care, and to be incapable of doing work, and the father drives the mother and children from his home, and another gives them the care necessary to .maintain them, the husband may be held for the reasonable value of the ne- cessaries furnished. Schouler Dom. Rel. 328, n. It would be monstrous to permit a father to thrust his children of helpless age from his doors and escape all responsibility for necessaries fur- nished them. A man under a duty to supply his wife with necessaries, and who fails td perform it, cannot escape liability to one who does furnish her with necessaries, upon the ground that he gave notice that he would not be responsible for them. To permit this would be to put it in the power of bad husbands to deprive their wives of all means of living; for, if notice terminated liability, the man bad enough to beat his wife would be swift to give it. In one of the answers to interrogatories, the jury say that there was no contract, and from this it is argued that there can be no recovery, because this is a finding that there is neither an express nor an implied contract. The single answer standing alone might, perhaps, sustain appellant's contention; but, when taken into connection with other answers, the meaning of the jury is plain. It is perfectly evident that they meant by the term con- tract an express agreement. They understood the term as mean- ing an agreement in terms, and this is a very common signification given the word contract. It was not intended to mean that there was no promise implied by law. Answers to interrogatories are to be taken together, and not separately. Taking all the answers in this case into consideration, they entitle the appellee to a judg- ment, and, so far from being hostile to the general verdict, are in full harmony with it. Judgment affirmed. EFFECT OF MARRIAGE. 183 COMMONWEALTH v. GRAHAM, 157 MASS. 73. (1892). Complaint, under the St. of 1885, c. 176, for the non-sup- port of the defendant's wife. At the trial in the Superior Court, before Hopkins, J., there was evidence tending to show that the defendant was nineteen years of age at the time of his marriage, and twenty when the complaint was made ; that the marriage was solemnized in Maine, whither the defendant and his prospective wife had repaired for the sole purpose of evading that provision of law of this Com- monwealth which requires the written consent of the defendant's father to the marrige ; that the marriage was consummated with- out the knowledge or consent of the defendant's father, who has never consented to it, but has always claimed and taken the de- fendant's wages ; that the defendant after his marriage lived with his wife for six weeks at the home of his parents in Somerville; that the father was in poor health, and needed his son's wages for his own support and the support of other members of his family ; that the defendant had no property other than said wages, and his wife had no separate property and was unable to work at the time of the making of the complaint ; that the father testified that he allowed the son to retain from his^ earnings from one to four dol- lars a week for the first six months after his marriage ; and that at the time of the complaint the defendant's wife was quick with child, and from February, 1891, to the date of the complaint he had made no provision whatever for her support. This period was after he was allowed from one to four dollars, as previously stated. The defendant requested the court to rule: 1. "A father is legally entitled to the wages of his minor son, and his marriage without the consent of his father does not of itself work his emancipation and entitle him to his earnings. If the defendant's father claimed and took his wages, and thereby deprived the defendant of the means of supporting his wife, he cannot be convicted." 2. "A marriage in another state in violation of the laws of this state will not have the effect to emancipate here the minor party to such marriage." The judge refused so to rule, but did instruct the jury that the marriage in Maine without the father's consent was valid in this Commonwealth, and imposed upon the defendant all the du- ties and responsibilities of the marital relation; that his wife 184 LAW OP HUSBAND AND WIFE. would be entitled to receive support from him ; that the defendant would be entitled as of right to such portion of his wage& as to enable him to support his wife; that the father could only claim the rest ; and that it was for the jury to say whether the defend- ant had any income, and if so, whether his neglect to support his wife was upon all the evidence unreasonable. The jury returned a verdict of guilty; and the [defendant al- leged exceptions. /. Cummings & R. G. Fairbanks, for the defendant. C N. Harris, Second Assistant Attorney General for the Commonwealth. Field, C. J. — The exceptions recite that the "defendant was nineteen at the time of his marriage, and twenty when the com- plaint was made." The age of the wife nowhere appears, but it was not contended that she was under the age of consent. If the marriage had iDeen solemnized within the Commonwealth, it would have been valid. Pub. Sts. c. 145, § 6. Parton v. Hervey, i Gray, 119. It is not contended that the marriage was void by the laws of Maine, but we cannot take judicial notice of the statutes of Maine, and the common law of that state must be presumed in the absence of evidence, to be the same as the common law of Massachusetts. See Hiram v. Pierce, 45 Maine, 367. Section 10, c. 145, of the Public Statutes was intended to de- fine the cases in which a marriage should- be deemed void which was solemnized in another state by persons resident in this Com- monwealth who went into the other state for the purpose of hav- ing the marriage solemnized there, and afterwards returned to and resided in this Commonwealth, but the present case is not within this section. The general rule of law is, that a marriage contracted elsewhere, if valid where it is contracted, is valid here, although the parties intended ' to evade our laws, unless the statutes declare such a marriage void, or the marriage is one deemed "contrary to the law of nature as generally recognized in Christian countries." Sutton v. Warren, 10 Met. 451. Com- monwealth V. Hunt, 4 Cush. 49. Commonwealth v. Lane, 113 Mass. 458. The consequences of this marriage must be the same as if it had been solemnized in this Commonwealth, and the presiding justice, therefore, correctly ruled that this marriage "imposed upon the defendant all the duties and responsibilities of the mar- ital relation." The real question is whether, when a minor son marries without the consent of the father, and the father never EFFECT OF MARRIAGE. 185 consents to it, and needs the son's wages for his support and the support of his family, the father is entitled to the son's wages dur- ing minority in preference to the wife, who also needs the wages for her support. The ruling was, that the "wife would be en- titled to receive support from" her husband, and that he "would be entitled as of right to such portion of his wages as to enable him to support his wife ; that the father could only claim the rest." It seems to be settled that the marriage of a minor son, with the consent of his father, works an emancipation, and it is not clear that the marriage of a minor son without his father's con- sent does not have the same effect, although the decision in White V. Henry, 24 Maine, 531, is conrta. It has been said : "The hus- band becomes the head of a new family. His new relations to his wife and children create oljligations and duties which require him to be the master of himself, his time, his labor, earnings and conduct." Sherburne v. Hqrtland, 37 Vt. 528, 529. There seems to be little doubt that, when an infant daughter marries, she is emancipated from the control of her parents. ' Aldrich v. Bennett, 63 N. H. 415. Burr v. Wilson, 18 Tex. 367. Porch v. Fries, 3 C. E. Green, 204. Northiield v. BrookUeld, 50 Vt. 62. Rex V. Wilmington, 5 B. & Aid. 525. Rex v. Everton, 1 East, 526. See, however, Bahin v. Le Blanc, 12 La. An. 367. The meaning of emancipation is not that all the disabilities of infancy are removed, but that the infant is freed from parental control, and has a right to his earnings. In Taunton v. Plymouth, 15 Mass. 203, 204, it was intimated that the marriage of an infant son with the consent of the father entitled the son to his own earn- ings for the support of his family, and in Davis ^.Caldwell, 12 Cush. 512, it was said that an infant husband is liable for neces- saries furnished for himself and his family. It is clear, we think, that it is the duty of an infant husband to support his wife, and that, if he have property and a guardian, it is the duty of the guar- dian to apply the income, and, so far as is necessary, the principal of his ward's property, to the maintainance of the ward and his family, under the Pub. Sts. c. 139, § 30. We are of opinion that these considerations make it necessary to hold that an infant husband is entitled to his own wages, so far as they are necessary for his own support and that of his wife and children, even if he married without his father's consent, and that the ruling of the court was sufficiently favorable to the de- fendant. Whether sound policy does not require that, in every case in which the marriage is valid, an infant husband should be en- titled to all his earnings, need not now be decided. Exceptions overruled. 186 LAW OF HUSBAND AND WIFE. 3. EFFECT OF DEATH ON WIFE'S DEBTS. MORROW V. WHITESIDES, lo B. MONROE 4". (1850), Judg-e Simpson delivered the opinion of the court. In the year 1841 Sarah Winstead, being the owner of a fe- male slave, intermarried with one Samuel Whitesides. Prior to her marriage she had hired out the slave for one year. Before the expiration of the year, she and her husband both died; she, however, having died before her husband. After the death of the husband and wife, John Morrow claim- ing to be a creditor of the wife before her marriage, administered on her estate, and took into his possession the aforesaid slave. He returnecl an inventory of her estate, which contained the slave only, and made a settlement with the County Court, in which he brought the estate in his debt — the assets in his hands being in- sufficient to discharge his demand against his intestate. The husband's executor having obtained a judgment against Morrow for the value of the slave in an action at law, the latter brought this suit in chancery for the purpose of subjecting the slave to the payment of his debt, or, if that could not be done, to obtain a decree against the estate of the husband for the amount due to him by the wife previous to her marriage. This case having occurred previous to the passage of the act of February, 1846, further to protect the rights of married wom- en, is not affected by its provisions, but has to be decided by the law as it stood prior to the passage of that statute. It is contended that as the slave was hired out at the time of the marriage, and the husband died before he obtained the pos- session of it, his executor has no right to it, that the title to it vested in the administrator of the wife, and it is assets in his hands for the payment of his wife's debts. The right which the wife had to the slave at the time of her marriage was not a mere chose in action. She was the general owner of the property, in which the hirer had merely a special interest. Upon the marriage the title vested in the husband, if not absolutely, at least sub uiodo, so that upon the death of the wife, before the termination of the interest of the bailee on hire, he became entitled to it as survivor : Banks v. Marksberry, 3 Litt. 283-4; Turner v. Davis, 'i B. Mon. 152. The executor of the husband, therefore, had a right to the slave. She belonged to the estate of the husband and not that of the wife, and was not liable EFFECT OF MARRIAGE. 187 for the payment of her debts. Besides, the judgment at law con- cluded this question, it being necessarily involved in the trial of the issue in that case. The husband's liability for the debts of the wife continued only during the coverture. After her death that liability ceased. It is now contended, however, that the legal liability of the hus- band alone was terminated by the death of the wife, and that he still remained responsible in equity to the extent of the estate that he had acquired in the right of his wife. / It was formerly held, that the husband was chargable in equity, after the death of his wife, for her debts to the extent of her personal fortune he had received with her. This doctrine, however, was afterwards overruled, and it is now well settled, that the rule as to the husband's responsibility is the same in equity that it is at law : Clancy on Rights, p. 15. As the husband's estate was not liable for the complainant's demand against the wife, the decree of the court below, dismissing the complainant's bill, was proper. Wherefore, the decree is affirmed. COLE v. SHURTLEFF, 41 VT. 311. (1868). Book Account. Heard on the report of the auditor, at the June term, 1867, Steele, )., presiding. The court decided that items i, 2 and 3 of the defendant's account should be disallowed, and rendered judgment for the plaintiff, on the report, for the sum of $40.56 and interest from January i, 1864; to which the defendant excepted. Item I was a silk dress ; item 2, a sack ; item 3, a shawl. The auditor reported the following facts in respect to these items : "It appears that the plaintiff married a daughter of the de- fendant April 14, 1864. In December, 1863, the plaintiff enlisted and went into the army. He sent Lizzie Shurtleff (afterward his wife) about that time $75 ; and also sent her an order on the town for $300, his bounty. This ^300 Lizzie Shurtleff (not then his wife) deposited in her own name in the savings bank. A portion of this money remained in the savings bank till after her death, and all the while subject to her disposal. The least amount there at any time, was $100. "About a year before her marriage, a dress, sack and shawl were bought for her by her father, as he says, with the under- 188 LAW OF HUSBAND AND WIPE. standing that she should pay for them. The evidence of the fa- ther is the only evidence to show that she was intended to be charged for them, and did not regard them in the light of a gift. If the court decide that this evidence of the father is admissible, she being dead, then your auditor finds that Lizzie was legally chargeable for items i, 2 and 3. "If the court decide that, she being liable. Cole's having, promised to pay for them after marriage, would render him liable, your auditor allows these items (dress, sack and shawl). "This suit was not brought, till after the death of the wife, and Cole's promise was not in writing". "Your auditor further finds that Cole had promised to pay for the dress, sack and shawl, before he was married, and agreed that they might offset against what the defendant Shurtlefi owed him for work." ** The opinion of the court was delivered by Prout, J. In this case the county court decided that, upon the facts re- ported, the defendant was not entitled to recover the amount of the disputed items, they being for articles of clothing purchased and furnished by the defendant to the plaintiff's deceased wife about a year before their marriage. The defendant was her fa- ther, and he testified before the auditor, that the articles in ques- tion were brought for her by him, with the understanding that she should pay for them. She died prior to the commencement of the action, but the report shows that, both before and after her marriage to the plaintiff, he promised the defendant to pay for them, as disclosed by the report. I. As to the admissibility of the defendant as a witness. The objection to him as a witness, proceeds upon the ground that, the plaintiff's wife being a party to the contract existing between her and her father, the defendant, and she being dead, the defendant was not an admissible witness. Gen. Sts., ch. 36, § 24. It is true the agreement between the defendant and the plain- tiff's wife, found by the auditor, by which she was under obliga- tion to pay the defendant, was material, but the issue in the action and on trial was not upon that argeement. That was whether or not the plaintiff undertook, and promised the defendant, to pay him for the articles of clothing in controversy. Without such promise or undertaking no liability whatever, upon the facts, was resting upon the plaintiff, by which he was under a legal obliga- tion to pay the defendant his claim. The contract of Mrs. Cole, the defendant's daughter, with her father, the defendant, was, EFFECT OF MARRIAGE. 189 then, simply a fact bearing upon the plaintiff's liability and the de- fendant's right of recovery, but collateral to the plaintiff's contract or promise, upon which the defendant's right of recovery neces- sarily depended. If this is so, the contract of the plaintiff's wife was in question before the auditor only as every collateral or in- cidental fact is which may have a bearing upon the ultimate ques- tion to be determined in the cause, but which does not directly involve the party's liability, or right of recovery. As the promise relied upon by the defendant, was made as between these parties to the action, and neither being dead, the disqualification contem- plated by the statute, does not apply. Manufacturers' Bank v. ScoHeld, 39 Vt. 590; Baxter v. Knowles, 12 Allen, 119. The design of the statute was to exclude a party from testify- ing when the other party to the contract in issue and on trial has died, and when in the action such deceased party is represented by an executor or administrator, and contemplates a suit or pro- ceeding, the determination of which may affect the estate of the deceased party. In this case, nothing of that kind is attempted or can result from the proceeding, whatever may be the determi- nation of the suit. Should the defendant recover against the plaintiff and to the extent of his claim, the estate of the plaintiff's wife, if she left any, remains untouched, and creditors, heirs, lega- tees or representatives, as such, from the nature of the claim, can suffer no harm. The case itself is, therefore, one to which the reason and spirit of the statute have no application. Upon these views, the defendant was an admissible witness. 2. The plaintiff's promise made before his marriage to the defendant's daughter, was a naked promise to pay her debt. She not being discharged or released from its payment, and it resting entirely in parol, it was collateral and cannot be enforced. An- derson V. Davis, 9 Vt. 136; Fullam v. Adams, 37 Vt. 391. And then, again, the promise was, as the report shows, a mere agree- ment that the defendant's claim might offset as against the claim of the plaintiff : "the plaintiff agreed it might." It does not ap- pear that the defendant assented to this proposed application ; but assuming he did, it not having been done, the case in all aspects, so far as the question is concerned, is within the statute of frauds. B'^ind V. Brand, 49 Barb. 346. 3. As to the plaintiff's promise to pay after' his marriage. The report shows that the plaintiff promised to pay for these ar- ticles "after his marriage," and it is insisted that, by the marriage, the debt of the wife became the debt of the husband, and that he is under a fixed and absolute obligation to pay it. 190 LAW OF HUSBAND AND WIFE. As to this antenuptial debt of the wife, the plaintiffr as a legal consequence of his marriage, became liable to pay it ; but this was a joint liability with the wife. She could not have been sued alone, neither could the husband. It is an elementary rule, that when a feme sole who has contracted a debt, marries, the husband and wife must, in general, be jointly sued in an action brought for its recovery, even though the husband has expressly promised to pay it. Chitty's PL 13th Am. ed. 57. This liability of the hus- band, arising and existing as a consequence of the marriage, and which can be enforced only in a joint action against both, is of a temporary or qualified nature. It terminates on the death of the wife, unless enforced during coverture by the recovery of a judg- ment, and his liability in this respect is of the same qualified char- acter incident to his rights, as' husband, to her choses in action. Unless he reduce them to possession during coverture, and with the intent to make them his own, they are not his absolute prop- erty, but they belong to her representatives. Reeve's Dom. Rel. 53-143; Buckner v. Smyth et al, 4 Des. 371; Heard et ux. v. Stamford, 3 P. Wms. 410; Howes, executrix, v. Bigelow, 13 Mass. 384; Wilson et al. v. Bates, admr. 28 Vt. 765; Barber v. Slade et al. 30 Vt. 191 ; Mitchinson v. Heivson, 7 Term, 344. These principles proceed upon the obvious ground that the debt sought to be recovered in the one case, and the property or choses in action in the other, are the wife's. It is for this reason, and because the debt is hers, that the husband, in an action brought for its recovery, must be joined, which would not be the case, as Reeve ,J., says, if the husband were to be considered the debtor. If, by virtue of the marriage, "the debt had been trans- ferred to the husband, it would not survive against the wife; but it does survive against her; and this is perfectly consistent with the idea that she is considered by the law as the debtor." Reeve's Dom. Rel. 53 ; 2 Kent's Com. 145. Upon this view, it would seem that the promise relied upon, referring to, and applicable only to, the debt of another, and not being supported by any consideration, nor in writing, was invalid as within the statute of frauds. But however that may be, the question stands upon clear reasons upon another ground. The defendant's right of recovery for these ar- ticles depends upon the naked fact that the debt was contracted by the plaintiff's wife dmn sola, arid that subsequent to the marri- age and during coverture, the plaintiff promised to pay it. The fact that the plaintiff was once liable to pay the claim, in another right, so to express it, and in consequence of the legal liability EFFECT OP MARRIAGE. 191 resting upon him as the husband of the defendant's deceased daughter, gives the promise no additional efficacy or legal force, and can make no difference in the determination of the question. It was nevertheless a promise not made upon any consideration. When made, the plaintiff was liable for the debt, but liable as hus- band ; and if, as remarked by Collamer, J., in Russell v. Buck, ii Vt. 1 66, the consideration of the plaintiff's promise was his exist- ing liability, and in consideration thereof he promised to pay the defendant's claim, it created no new legal liability, but left "the debt and the parties as they were before. Such a promise might indeed affect the claim as to the statute of limitations, but would be no ground of action in itself." It was not founded upon any- thing beneficial to the plaintiff or prejudicial to the defendant. And in Rami et al., executors v. Hughes, admx., reported at length in a note in 7 Term Reports, 346, it is said and held that, ■'if I promise generally to pay upon request what I was liable to pay on request in another right, I derive no advantage or conven- ience from this, and therefore there is not a sufficient consider- ation for" the promise. The promise relied upon, therefore, being insufficient as giving a legal ground of recovery, and the defend- ant not having perfected his right as against the plaintiff in re- spect to his claim during coverture, he is not entitled to be allowed the amount of the items in dispute. The judgment of the county court is affirmed. 4. WIFE'S INJURIES AND FRAUDS, a. Torts Cotnmited by Wife. MARSHALL v. OAKES, 51 ME. 308. (1864). Exceptions from the ruling at Nisi Prius of Barrows, J. Replevin. The defendants claimed that the sheep re- plevied were the property of the female defendant. It was ad- mitted that the defendants were husband and wife. There was evidence tending to show that the wife was the active party in taking the sheep. The defendants excepted to the refusal of the presiding judge to give the jury the following requested instructions : I. That, if the title to the sheep in question is found by the jury to have been in the plaintiff at the time of the alleged taking and detention; and also find that the defendants were husband 192 LAW OP HUSBAND AND WIPE. and wife at the time of tlie alleged taking and detention, and that the taking and detention were by them' jointly or in company of each other, or by the wife in the presence of the husband, their verdict should be for the defendants. 2. That if the title to the sheep in question is found to have been in the plaintiff at the time of the alleged taking and deten- tion, and that the defendants were liusband and vvife at the time of the alleged taking and detention, and that the taking and de- tention were by them jointly, or by the wife in the presence of the husband, or in his company, that the husband is alone guilty and liable. Bolster & Richardson, in support of the exceptions. Hammons, contra. The opinion of the court was drawn up by Kent, J. The instructions actually given are not stated in the excep- tions. The exceptions are to the refusal otthe judge to give the specific rulings requested. We are only called upon to determine whether the judge was bound to give the precise instructions re- quested. These requests were, in substance, that, if the plaintiff had proved property in himself, and a taking and detention by the defendants, yet, if the defendants were husband and wife, and the taking and detention were by them jointly, or by the wife in presence of her husband, that the verdict must be for the defend- ants, or, at least, that the husband alone could be held guilty. The general rule of the common law is that the husband is liable for the torts of his wife. Haivks v. Hamar, 5 Binney, 43. But the question here is as to their joint liability. When the tort or crime is committed by the wife alone, and without thg presence or direction of her husband, she may be held liable, civilly and criminally. In such cases, the civil action must be against both the husband and the wife. 2 Kent's Com. 149 ; Head v. Briscoe, 5 Car. & P. 484, (24 E.~ C. L., 419) ; Keyworth v. Hill & ux., 3 B. 6 Aid., 685, (5 E. C. L. 422). But, if committed in his presence and by his direction, he alone is liable. 2 Kent's Com. 149. The prima facie presumption is, that the wife acted under coercion, if the husband was actually present. This presumption arises as well in civil suits for torts, as in criminal cases. Hilliard on Torts, c. 42, § 57. If nothing appears but the fact that the wrong was done whilst theV were both together, the jury should' be instructed to acquit the wife. Such presumption, however, is but prima facie, and may be rebutted by the facts proved, showing- that the wife was the instigator or more active party, or that the EFFECT OF MARRIAGE. 193 husband, although present, was incapable of coercion — or that the wife was the stronger of the two. Wharton's Am. Cr. Law, Book I, § 73; I Hale, 516. The coercion must be at the time of the act done, and then the law, out of tenderness, refers it, prima facie, to the coercion of the husband. lb., § 74. This presumption is one of the compensations, or offsets, which the old common law gave for the benefit and protection of the wife, for its stern and unyielding doctrines in relation to the superior marital rights of the husband, by which the rights — the personal property, and legal existence of the wife are nearly all lost or merged in her baron or lord. As was forcibly said by Mr. Justice Emery, in State v. Burlingame, 15 Maine, 106, "the whole theory of the common law is a slavish one, compared even with the civil law. The merging of the wife's name in that of her hus- band is emblematic of the fate of all her legal rights. The torch of Hymen serves but to light the pile on which those rights are offered up." It was a natural and logical result, as the founders of the common law clearly saw, that, if the husband was to be regarded as the head and sole representative of the union, the wife should have the benefit of her legal nonentity, when acting in presence of her husband, even if she apparently was not an unwilling actor. Her misdemeanors and trespasses were to be looked upon, not as arising from the promptings of her own mind and will, but as the result of the overpowering commands or coercion of him whom she had promised to obey. How carefully the fathers studied the first case in point, recorded in the history of man, (Genesis, Chap, iii.,) or, some of the subsequently reported cases, where, to common observation, the woman and wife appears as the prime niover in wrong and mischief, we cannot know and need not dis- cuss. But, to meet the actual facts of history and observation, the law has engrafted the qualification on the rule, before stated, viz., that the prima facie presumption may be overcome by the proof in the case, that, in fact, the wife was the originator, dictator, and principal oflfender. Hilliard on Torts, c. 42, § i ; Com. v. Lewis, I Met. 153. Where there are other facts established, besides the presence of the husband, as to the participation of the wife in or- iginating and carrying on the common purpose, which tend to re- but the presumption, it is a question for the jury to determine whether or not the presumption is overcome. In the case at bar, as before stated, we are called upon to de- 194 LAW OF HUSBAND AND WIFE. termine only whether the judge was bound to give the instructions requested or either of them. We are not to presume that no in- structions on the point were given, or that those given were neces- sarily erroneous, because those requested were not given. But, if the requested and refused rulings cover the whole ground and contain the true rule which should govern and control the case, the party may sustain his exceptions. When the refusal of the specified instructions necessarily implies that a contrary and in- correct rule was given, or that the jury were left without instruc- tions on the point ; or when they cover the whole principle, and it is clear that the case required that the law should thus be stated, exceptions may be sustained, although only the requests are stated in the report. Unless a party is quite certain that his requests cover the whole ground, it is always safer to state what the actual rulings were. In this case, the requests were that the jury should be in- structed as matter of law, absolute and conclusive, that if the hus- band and wife were both present and the taking was joint, or by the wife in the presence of the husband, the verdict must be for the defendants, or at least for the wife. Or, in other words, that the presumption arising from the presence of the husband was conclusive in law, and that it could not be rebutted by other facts. The true rule, as we have seen, is that such presence raises a prima facie presumption, subject to be overcome by pVoof nega- tiving clearly the presumed coercion or command. We have nothing in the case to show that the instructions given were not in the very words of the request, with the addition or qualification above stated, in reference to rebutting testimony. We do not think the judge was bound to give the requested instructions, as a rule of law, without the qualification. When the requested instructions would have been correct, with the addition of a single qualifying word, the omission of that word in the requests was held fatal to the exceptions. Stowe v. Heywood, 7 Allen, 118. The requests in this case, state but a part of the rule and are therefore imperfect. On looking at the evidence, as reported, there seems to be enough for the consideration of the, jury on the question whether the presumption was overcome or not. The wife claimed the property as her own, and seems to have been quite active in the taking, and apparently of her own will and motion. At all events. EFFECT OF MARRIAGE. 195 the judge was not bound to say, as matter of law, that there was no evidence tending to show a state of facts which might rebut the presumption. In an action of trepass against husband and wife, for a joint assault, where the evidence was that the wife was the real and principal offender ,it was held that it was clearly a case to be sub- mitted to a jury; the presumption being only prima facie, and, like other presumptions, liable to be overcome by testimony. Hilliard on Torts, c. 42, § 7. It is unnecessary to consider the effect of the recent statutes in relation to married women. Exception overruled. Judgment on the verdict. b. Torts Upon Wife. BERGER v. JACOBS, 21 MICH. 215. (1870). Error to Wayne Circuit. This was an action on the case brought by Amelia Berger in the Circuit Court for the County of Wayne against John C. Jacobs for an assault and battery committed by the defendant upon the person of the plaintiff, who was, at the time the cause of action arose, and so continued to be up to the time of the commencement of the action, a married woman. The defendant pleaded the gen- eral issue. On the trial, the question, which is brought into this court for review, was raised by the request of the defendant to the court to instruct the jury that the plaintiff, being a married woman, could not maintain this action witfiout joining her husband as co- plaintiff. The Circuit Judge so charged; to which the plaintiff excepted. A verdict was taken for the defendant, and the judg- ment entered thereon is brought into this court by writ of error. Christiancy, J. The only question in this case is. whether an action of trespass for an assault and battery committed upon a wife, can be maintained by her during coverture without join- ing the husband as co-plaintiff. At common law all the wife's choses in action, if reduced to possession during the coverture, belonged to the husband, though on the death of the husband before being recovered by him, they survived to the wife. And in an action like the present, the damages, when recovered, would have belonged to him. But this was also the case with reference to bonds and other rights or choses in action due to the wife before marriage, or accruing 196 LAW OP HUSBAND AND WIFE. to her afterwards during the coverture. But the wife was re- quired to be joined as a co-plaintiff in all cases both of tort and contract, in which, if the husband shoulld die, the right of action would survive to the wife. And as the damages in the case of an assault and battery would survive to the wife, upon the death of the husband before their recovery, the husband could not sue alone for the personal suffering or injury to the wife, and the declaration was required to conclude to their damage and not to that of the husband alone. Chitty's PL, 73. In such a case, therefore, the action, though it could not be brought in the name of the wife alone, yet was in her tight to the same extent, and for the same reason, as in actions for the recov- ery of mere debts and other choses in action which became due to her before marriage. By the first section of our statute in reference to "the rights of married women," Comp. L., § 3292, "The real and personal estate of every female acquired before marriage, and all prop- erty real and personal to which she may afterwards become en- titled by gift, grant, inheritance, devise or in any other manner, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations, and engagements of her husband, and may be contracted, sold, transferred, mort- gaged, conveyed, devised or bequeathed by her in the same manner and with the like effect as if she were unmarried." We think within the fair intention of this section, the right to recover damages, for her personal injury and suffering from an assault and battery committed upon herself, should be placed upon the same ground as choses in action or pecuniary claims, or rights accruing to her during the coverture ; that such damages when recovered would, under this statute, constitute a part of her individual property. She could, therefore, we think, release such damages, before or after action brought, or appropriate or convey them when recovered, in the same manner as if unmarried ; and the husband has no right in, or control over, the action. And under the third section of the statute, we think she is clearly entitled to maintain the present action in her own name. But, on the other hand, for any damages accruing to the husband from the assault and battery upon tlie wife, as for loss of her assistance and society and the expenses to which he may have been put in nursing and curing her, he alone could sue. We think, therefore, the Circuit Court erred in holding that EFFECT OF MARRIAGE. 197 the present action, could not be sustained in the name of the wife alone. The judgment must be reversed with costs, and a new trial awarded. The other Justices concurred. 5. WIFE'S PROPERTY. a. Personal Property In Possession. CARLETON v. LOVE JOY, 54 ME. 445. (1867). On Exceptions from Nisi Prius. Trover for the value of numerous articles of household furniture and dress, including a brass fire-set belonging to the plaintiff and borrowed of her by the defendant's former wife in her lifetime. The plaintiff testified, that the defendant's second wife was her sister, that she died March, 1864, that she s^nt particularly for the plaintiff about a fortnight before her decease, and gave her the furniture ,and other articles specifically named in the writ, that, being feeble, she did not go over the house to show them to the plaintiff, but expressed the wish that the latter would do so! She further testified that the defendant was absent at the time, that when he returned, she communicated the facts to him and he agreed to carry the things to plaintiff's house, that the plaintiff took some things, that she subsequently called for the others and the defendant refused to deliver them. The plaintiff also testified as to the value of each article, that her said sister bought most of the articles sued for before her marriage, in 1843, ^nd the remainder since, with her earnings. Plaintiff also testified, in cross-examination, that the defendant's wife gave her the things the day before she left, that no one else was present, that the plaintiff and defendant's wife were sitting in the kitchen when the gift was made, that her sister said she wanted plaintiff and another sister to have all her things, that she was not able to talk any more, she was so feeble. There was no evidence of any demand for the fire-set. Mary J. Averill, called by the plaintiff, testified that she saw defendant when he carried plaintiff home, and that he said he could not bring down the other things until better traveling. Plaintiff replied that the parlor furniture might remain during 198 LAW OF HUSBAND AND WIFE. the summer, that she wanted the spoons and ottoman, and would go up soon and see about them ; he said come up. The plaintiff rested ; whereupon the presiding Judge ordered a nonsuit, and the plaintiff alleged exceptions. A. G. StincMeld, for the plaintiff. S. Lancaster, for the defendant. Appleton, C. J. This is an action of trover for various articles of personal property particularly described in the writ. The plaintiff claims title thereto under an alleged gift of the same from her sister, the wife of the defendant, made shortly before her decease. The goods in controversy consist principally of articles of household furniture and of dress. They were purchased by the wife before marriage, or since with the funds of her husband. The marriage took place before the passage of any Act conferring rights upon or removing the disabilities of married women. The title to the property in dispute must be determined by the rules of the common law, as existing before they were changed or modified by statute. By the common law, the personal property of the wife, in possession at the time of the marriage, in her own right, such as money, goods and chattels, and moveables, vested immediately and absolutely in the husband upon such marriage. 2 Kent, 143. The defendant is not shown to have parted with his title. His wife, then, had nothing to give. If it were otherwise, a delivery is necessary to constitute a valid and effective gift, whether inter vivos or causa mortis. Without actual or constructive delivery, the title does not vest. The owner must part with all present and future dominion over the property. Marston v. Marston, 1 Foster, 491 ; Dole v. Lin- coln, 31 Maine, 422; Allen, v. Polerecsky, 31 Maine, 338. The proof fails to show any valid gift., The gift must be complete. Jones V. Lock, 1 Law Rep. Chy. Ap., 24. "To constitute a title of this kind," remarks Sargent, J., in Cutting v. Gilman, 41 N. H., 151, "under a gift causa mortis, the donor must not only give, but he must deliver, and the delivery must be actual when the subject matter of the gift is capable of actual transfer." It is in evidence that the wife of the defendant borrowed a fire-set of the plaintiff. When, it does not apear. The fire-set came rightfully into the defendant's possession. No demand uffon him for the property is shown. No act of conversion by him is established. Exceptions overruled. — Nonsuit to stand. EFFECT OF MAERIAGE. 199 b. Personal Property in Action. TRITT'S ADMR. v. COLWELL'S ADMR. 31 PA. ST. 228. (1858). Error to the Common Pleas of Cumberland County. This was an action of debt brought in the court below, by John E. B. Graham, administrator de bonis non with the will an- nexed, of John Colwell, deceased, for the use of William Graham, against George Miller, administrator of William K. Tritt, de- ceased, with notice to terre tenants; upon a bond, dated the 2d April, 1838, in the penal sum of $1,000, conditioned for the pay- ment of $458.33,^ to the executors of John Colwell, deceased, for the use of Mrs. Jane Phillips, at the decease of Mrs. Martha Colwell, the widow. On the 4th January, 183 1, John Colwell, by his last will and testament, devised one-third part of all his real estate to his wife for life ; and directed a part of it to be sold by his executors, and the proceeds to be divided among his four daughters, of whom one was Jane Phillips, the wife of George M. Phillips. The executors sold one of his tracts of land to William K. Tritt, and, by the terms of sale, one-third of the purchase-money was made payable, upon the decease of the widow, viz., to each of the daughters $458.33^4- For these sums, the purchaser gave bonds to the executors for the use of the daughters respectively; upon one of which the present action was brought. These bonds were secured by a mortgage on the land sold; they were all dated the 2d April, 1838 ; and, on the same day, the legatees received the bonds and executed a release to the execu- tors. This release was executed by George M. Phillips, the hus- band of Jane; and the bond was endorsed by the executors — "For the use of George M. Phillips and Jane his wife." On the nth August, 1841, George M. Phillips borrowed from William Graham $200, and executed to him the following assignment of the bond in question : — "nth August, 1841, borrowed and received from William Graham, two hundred dollars, which I promise to pay, the one- half in three months, and the other half in six months, with inter- est from this date. And I hereby assign and transfer to said Willian Graham, a bond which I hold on William K. Tritt for $4S8-33>4. payable on the death of .Mrs. Martha Colwell; as a collateral security for the payment of the above sum of two hun- dred dollars. Witness my hand and seal the day and year first above written. - George M. Phillips. $200.00. Test— Jas. H. Devor." 200 LAW OF HUSBAND AND WIFE. George M. Phillips died in May, 1852, leaving his wife sur- viving; and Mrs. Martha Colwell, the widow of John Colwell, deceased, died on the 3d December, 1856. On the I2th March, 1857, Samuel Myers, the owner of the land bound by the mortgage, and who was summoned as one of the terre tenants, paid this bond to Mrs. Jane Phillips. After payment of the money, Myers inquired where the bond was'; Mrs. Phillips said she did not know; James Colwell, who was present, said he knew where it was, and agreed to keep Myers indemnified. Mrs. Phillips, at the same time, executed the fol- loing instrument: — "I hereby acknowledge to have received of Samuel Myers four hundred and sixty-six dollars and thirty-five cents, in full of the one-fourth part of a mortgage of a tract of land in South- ampton Township, now owned by the said Samuel Myers and others, given to secure the payment of eighteen hundred and thirty-three dollars and thirty-three cents, one-fourth of which was payable to my use at the death of Mrs. K. Colwell, widow of John Colwell; and hereby authorize and empower the recorder of deeds of Cumberland County to enter satisfaction for the one- fourth part of said mortgage, being my interest in the same. The said mortgage is recorded in the recorder's office of said county, mortgage-book F, vol. i, page 49. Witness my hand and seal, the twelfth day of March, A. D. 1857. Jane C. Phillips." [l. s.] Upon the trial, the defendant's counsel requested the court to charge the jury as follows : — 1. That the facts as proved in this case, do not exhibit such a dispositon of the bond and mortgage by George M. Phillips, the husband, as did divest the right of survivorship of his wife, Mrs. Jane Phillips. 2. Unless Mr. Myers knew, at the time he paid the money to Mrs. Phillips, that the bond had beeen assigned previously, the payment to her was good and discharged the mortgage pro tanto. 3. That, in the absence of the bond, even if James Colwell did indemnify Mr. Myers for the payment to his sister, it is not such a notice, express or implied, as would vitiate his payment. 4. That there is no evidence in the case, which amounts to either express or implied notice to Mr. Myers, that the bond had been assigned. Nor is there any evidence of such notice to him, as would justify his withholding the money, there being a mort- gage on record to secure the same monev. EFFECT OF MARRIAGE. 20l In answer to these points, the learned Judge Graham, P. J., instructed the jury as follows: — "i. In this case the husband had possession of the bond, he assigned it for value, and, so far as the money was paid by the assignee, the assignment defeats the wife's right as survivor, and the plaintiff would be entitled to recover. We, therefore, answer the first point presented by defendant's counsel in the negative. "2. But defendant contends, that Myers paid this bond to Mrs. Phillips, without notice of the assignment, and is, therefore, protected from a recovery in this suit brought for the use of the assignee. The law is, that if any obligor in a bond pays to the obligee without notice of an assignment, the assignee cannot recover; but, if it is paid under circumstances which ought to put a man of ordinary caution and prudence upon inquiry, which would enable him to ascertain the truth, then such payment would not defeat a recovery by the assignee. If Mr. Myers did not know, at the time of the payment, that the bond was assigned, and did not pay it under circumstances which ought to have put him upon inquiry, \^ich would have resulted in a knowledge of the assignment, the payment to Mrs. Phillips was good, and satisfies the mortgage pro tanto. "3. The absence of the bond, and the indemnity of James Golwell to Mr. Myers, is not notice to Mr. Myers that the bond was assigned; but is evidence, in connection with the other evi- dence in the case, for you to consider, in determining whether the payment was made under circumstances which ought to have induced inquiry, as we have before stated. "4. We cannot instruct you as requested on this point. The evidence is for you to pass upon, arid we would not be justified in withdrawing it from the jury. There is evidence which we think tends strongly to show that if Mr. Myers did not know the bond was assigned, he paid it under circumstances which ought to have put him upon inquiry which would have resulted in ascertaining the truth." To this charge the defendants excepted; and a verdict and judgment having been given for the plaintiff, the defendants sued out this writ, and here assigned for error the charge of the court in answer to the ist, 3d, and 4th points. The opinion of the Court was delivered by Strong, J. Prior to the Act of Assembly of April nth, 1848, marriage, though not an absolute gift of the wife's choses in action, vested in the husband a right to them, on condition that' he should reduce 202 LAW OF HUSBAND AND WIFE. them into possession during the coverture. Her separate civil existence being suspended and merged in his, he succeeded nec- essarily to all her power and dominion over her chose, and could exercise that power as fully as she could have exercised it, had she remained sole. That reduction into possession, which made the chose absolutely, as well as potentially, the husband's, was a reduction into possession not of the thing, but of the title to it. Consequently, his legal assignment of her chose in action, barred the wife's right of survivorship, for it took away her legal title, upon which alone that right rested. The only reason why an equitable assignment did not always work the same results, was, that the assignee was compelled to go into equity (a thing in action not being assignable at law), and when in equity, a chan- cellor would not interpose in favor of a volunteer against the conjugal rights of the wife. But when the assignee had an equity resulting from the payment of a valuable consideration, an equitable assignment was as available as a legal one — equally transferred the wife's title and equally barred her survivorship. The equitable assignment was a declaration of truit, and a valua- ble consideration paid, moved the chancellor to decree its execu- tion. While, therefore, the husband's equitable assignment of a wife's chose in action, without value received, was unavailing to deprive her of the right of survivorship, an assignment for a valuable consideration did defeat it, and passed the title to the assignee, as fully as if it had been made by the wife before cover- ture. It is unnecessary to pursue this subject further. The mas- terly discussion of Chief Justice Gibson, in Siter's Case, 4 Rawle 468, has left almost nothing unsaid. If, then, the transaction be- tween George M. Phillips and William Graham was an assign- ment of the bond of Mrs. Phillips for a valuable consideration, it must prevail against the wife, even though she survived her husband. It is, however, contended that it was not an assignment, but a pledge. Undoubtedly, a pledge is insufficient to bar the wife's right, for it is no reduction into possession of her title. The instrument now before us is an assignment, not a pledge. It con- tains all the operative words fit and necessary to pass the title. It needs but one more witness, to make it a legal assignment under the Act of 28th of May, 171 5, such as to enable an assignee to sue in his own name. That it passed the bond to Graham, as a security collateral to the obligation expressed in the instrument. EFFECT OF MARRIAGE. 203 makes the transaction no less an assignment. The title was in the assignee, defeasible on the performance of a condition subsequent, to-wit, the payment of the debt. That the existence of such a condition subsequent does not prevent the title from vesting in the assignee, is the result of all the authorities, so far as I know, without exception. The case of Hartman v. Dawdel, i Rawle 279, relied upon by the plaintiff in error, in truth, asserts no other doctrine. Chief Justice Gibson, the author of the opinion, in speaking of it in Siter's case, remarks that, "However the opinion of the court may have been expressed, it certainly was intended to rule the case expressly on the distinction between a voluntary assignment and one for value." There the consideration for the equitable assignment was not, as here, an advance of money at the time, but a pre-existing debt, which had been held in Petrie v. Clark, II S. & R. 377, not to be a valuable consideration. Bates V. Dandy, 2 Atk. 207, a case fully recognized in this state as of fundamental authority, was itself but an agreement to assign the wife's chose in action, as a collateral security for a present loan of money, yet it was decreed to prevail against the wife. A mortgage is only a collateral security, yet it passes the title. This is universally conceded : 2 Kent Com. 581 ; Addison on Contracts 318; Story's Eq. 1030. If, then, the assignment of George M. Phillips conveyed to Graham the title to the chose, as we have seen that it did, and was for a valuable consideration, the court below correctly instructed the jury that it defeated Mrs. Phillips's right of survivorship. As was said in Woelper's appeal, 2 Barr 71, it is the husband's assumption of title, and not the form of the act by which it is indicated, which is the criterion. An actual use of the wife's chose in action for his own purposes, works a transfer of her ownership. The second error assigned, is, that the court refused to charge the jury, "that the facts, as proved, established, that the transac- tion between the executors of John Colwell, in taking the bond in the name of the wife and the release of the husband, was an appro- priation by him of the fund to the separate use of the wife, and took from the husband the right to dispose of it either absolutely or conditionally." Conceding now, that it was a question for the court, and not for the jury, what were the facts proved? There was no direct evidence that Phillips consented that the bond should be taken in the name of the executors for the use of the wife, and when he received it, it was endorsed for his use as well as for that of Mrs. Phillips. He merely united with her in a :204 LAW OF HUSBAND AND WIFE. release to the executors. To hold that these acts constituted an appropriation to the sole and separate use of the wife, would be giving to them an effect far beyond what equity has ever allowed. While no particular language is indispensable, yet the claim of the wife to a separate use being against common right, the instru- ment under which it is made must clearly speak the donor's inten- tion to bar the husband's marital rights, or it cannot be allowed : Clancy 262. The only remaining error assigned is, to the charge of the court, relative to the knowledge of the defendant that the bond had been assigned when he paid it to Mrs. Phillips the cestui que use. The evidence showed, that at the time when payment was made, he asked where the bond was, and was told by Mrs. Phillips that she did not "know, and that he received indemnity and took a receipt. The court instructed the jury, that "if it was paid under circumstances which ought to have put a man, of ordinary cau- tion and prudence, upon inquiry which would enable him to as- certain the truth, then such payment would not defeat a recovery by the assignee." Why was not this proper instruction? Pay- ment to an equitable assignee is certainly a good payment. And after notice that there is such a holder, payment to the legal holder is unavailing to discharge the debt. This is conceded. , But why is this so? Because it is inequitable that a debtor should pay to one who, in equity, is not entitled to receive, when he knows that such payment is injurious to another. In equity, the assignment has the same force as if it had been legally made. The reason why a debtor is discharged by payment to the assignor, without notice of such assignment, is, that he has been guilty of no wan- ton or heedless disregard of the rights of another. But when he has reason to believe that another has become the owner of the ■chose, and, uninfluenced by that belief, makes payment to the orig- inal creditor, he cannot aver that he has been guiltless. In ac- cordance with this view, it was said by Thompson, C. J., in An- derson V. Van Alen, 12 Johns 343 : "It is a well settled principle that courts of law will notice the assignment of a chose in action, and protect the interest of a cestui que trust, against any person who has notice of the trust; and it seems also to be pretty well settled, that actual notice is not necessary. If a person acts in the face of facts and circumstances which were sufificient to put him upon inquiry, he acts contrary to good faith and at his peril.''' This is also the doctrine of Johnson v. Bloodgood, 1 Johns. Ca. 51 ; and ■our own court, in Guthrie v. Bashline, 1 Casey, 81, ruled that it EFFECT OF MARRIAGE. 205" was not necessary that direct notice of the assignment of a judg- ment be given by the assignee or his agent. It is sufficient if the information be given under circumstances and in terms to arrest the attention of the debtor. The charge of the court below was, therefore, unexception- able, and the judgment must be affirmed. c. Wife's Equity. KENNY V. UDALL, 5 JOHNS. CHAN. 464. (1821). The plaintiff, the wife of the defendant Edward M. L. Ken- ny, being an infant, and permitted to sue in forma pauperis, by E.. Elmendorf , her next best friend, filed her bill the i ith of Novem- ber, 1820, against the defendants. She was the daughter of Thomas Hewitt, late of Cheshire, in England, deceased, who re- moved to New York about the year 1810, and died here, the 12th of October, 1814, possessed of considerable property. The plain- tiff was born in Cheshire, the 9th of November, 1801. Her father owned 310 shares of stock in the Bank of America; and on the 1st of June, 1814, executed a deed of settlement, by which he trans- ferred those shares to the President, Directors and Company of the Bank of America, in trust, fdr the following uses : i. To pay the bank what he owed them; and then to pay him all dividends on the stock, and to retransfer it, when requested by him in writ- ing. 2. To dispose of sufficient of the stock, to carry into effect the trusts therein after expressed, and to defray the expense of executing them, and also to pay one thousand dollars to his wife, as soon as she might want it, after his decease. 3. To pay his son, Thomas, $4,000, as soon after his decease as they might think proper. 4. To pay his daughter Eliza (the plaintiff) the divi- dends on eight thousand dollars of the stock, as the same should accrue, for her education, which was to be under the care of her mother, and to transfer the principal to her (the plaintiff), at the age of twenty-one years ; and should she die before twenty-one, and without issue, the principal to go to his son Thomas, etc., stat- ing other trusts. After the death of T. Hewitt, his widow, the- mother of the plaintiff, obtained letters of administration upon his estate, and was appointed guardian of the plaintiff. The mother- died on the 9th of October, 1819. Previous to her death, on peti- tion to this court, Isaac L. Kip, the assistant register, was ap- pointed trustee) to receive the dividends on the $8,000, and to pay- 206 LAW OF HUSBAND AND WIFE. the same over to the mother of the plaintiff, for her education, whereby she became a ward of this court. On the 19th of Jan- uary, 1818, she married with the defendant K., without the con- sent of her mother, being then about sixteen, and at a boarding school. On the 9th of February following, upon the petition of her husband, for an immediate transfer of the stock, or a power to receive the dividends, an order was granted that Mr. Kip, the trustee, should pay to the defendant K. the dividends on the $8,000, but to continue to hold the principal, in trust, until further order. The bill stated further, that the defendant K., before, or soon after his marriage with the plaintiff, became embarrassed in his circumstances, and with a view to relieve himself, by rais- ing money on the stockj through the agency of Ezra L. Ingraham, since deceased, who offered to assist him, negotiated a contract with the defendant, Richard Udall, by which it was agreed, that U. should pay K. $5,000 cash for the stock, and that K. and his wife should make an absolute assignment and transfer of the stock to U. That during the negotiation, U. investigated the title of K. and his wife to the stock, and was informed of the terms of the settlement of the stock on the plaintiff by her father. The bill then stated, that after U. had paid K. $450, he refused to pay the residue, alleging, that it was a bad bargain ; and finally concluded, as his only terms, to pay as follpws: Seven hundred and fifty dollars in cash, a promissory not, at 60 days, for $1,000; another note at 90 days, for $820; Udall's bond to K. for $1,000, payable in four years ; and $980, a premium of insurance on the life of the plaintiff. That K. having been arrested on a ca. sa., and not able to find bail for the gaol liberties, was under the necessity of ac- cepting the terms so offered. That the defendant, U., was ad- vised by counsel, whom he consulted, that K. and the plaintiff could not make an absolute and valid transfer of the stock. An assignment was, however, executed by them, in which the consid- ation expressed was $8,000, and a receipt thereon indorsed for that amount in full, which receipt was ante-dated at the request of U. That a guaranty, by request of U., was indorsed on the assignment, stipulating for the performance of the terms, and which was executed by Ingraham. That K., a few days after, by the agency of Ingraham, procured the two notes to be dis- counted by U., for $1663 and 90 cents, and the bond for $500, and the notes and bonds were delivered up to U. to be cancelled. That Ingraham paid K. the $1,663 and 90 cents, but not the $500. That the plaintiff received no benefit from the money so obtained by K., EFFECT OF MARRIAGE. 207 except about $150, paid for board and wearing apparel; and K. notwithstanding, was thrown into gaol, from which he was dis- charged under the act. That by an order of this court, granted June 17th, 1819, on the petition of U., he was allowed to receive the dividends on the stock, which had accrued from January ist, 1819. Prayer that the assignment of the stock to U. may be de- clared void, that U. be directed to reassign the same to some per- son, to be appointed in behalf of the plaintiff ; and that he account to the plaintff, for the dividends received by him, with interest, and that the order of the 17th of June, 1819, be suspended. The answer of Udall admitted most of the facts stated in the bill ; but it denied any unfairness, or undue advantage, in the tran- saction relative to the purchase of the stock, which he alleged was not worth more than $5,000. That the assignment and guaranty were prepared without the knowledge of the defendant U. That the business was negotiated by Ingraham, on whose representa- tions the defendant consented to make the purchase. He denied that he was informed by counsel, that the assignment would not be valid. That Ingraham showed him the order of the court, for the payment of the dividends to K., and the opinion of a lawyer, that by insuring the lives of the plaintiff and K., and obtaining an irrevocable power to receive the dividends, the defendant would be secure in making the purchase. That he agreed with Ingra- , ham to pay $4,000 and give his bond for $1,000, payable in four years, (or when the plaintiff should be of age), without interest; that he consented to the purchase, at the earnest request of I., who represented the situation of K. as embarrassed, and that the sale was necessary for his, relief. That he advanced to I. $1,300, and I. told him, the next day, that he had paid it to K. That he was, afterwards, introduced to K., and told him, that if he objected to the terms, that he might return the money, which had been ad- vanced. That the assignment was prepared by counsel, employ- ed, as the defendant believed by K., and duly executed and ac- knowledged. That the guaranty of Ingraham was not taken with any fraudulent intent. That the receipt was indorsed on the as- signment by K., without any request from the defendant. That it was no part of the contract that any part of the consideration for the purchase of the stock, should be paid for a premium of insur- ance on the life of the plaintiff K,, and no such insurance was ever effected. That the only consideration paid by the defendant for the $8,000 of stock, was $2,800 in cash, $1,200 of six per cent, stock of the United States, and the defendant's bond for $1,000, 208 LAW OF HUSBAND AND WIPE. payable as above stated, and which bond was drawn by Ingraham. That all the payments were made to Ingraham, when no other person was present, and the defendant believes that I. paid the amount (after deducting his compensation) to K. That the defendant had received the dividends on the stock, since Jan- uary 1st, 1819. That in April or May, 1819 I. brought him the bond for $1,000, stating that K. was in great want and, as he said, at the request of K., offered the bond for $500; that the defendant paid the $500, and the bond was destroyed. He denied that the purchase of the bond was any part of the contract for the sale of the stock. He admitted that K. had been dis- charged under the act, and was embarrassed and infirm. Several witnesses were examined on the part of the plaintiff ; the material facts proved are stated in the opinion of the court. It appeared that Ingraham was dead. June 2d. The cause came on to be heard that day, on the pleadings and proofs. The Chancellor. The wife is here the plaintiff, and the bill is against her husband and the assignee of her husband, to set aside an assignment by him to the defendant Udall, of her interest in $8,000 of the stock of the Bank of America. She was married at the age of sixteen, and is still an infant. The assignment of her interest in that stock, was made by her husband and her, with- in a year after her marriage; and as far as the assignment was her act and deed, it was and is, of course, null and void, by reason of her infancy. The case is to be considered precisely as if the husband had alone executed the assignment. The circumstances attending the sale dnd assignment of this stock, by the husband to the defendant Udall, are of an aggra- vated nature, and denote an unfair and unconscientious advantage taken of the necessities of the husband. The defendant Udall ad- mits, that he knew, at the time of the transaction with Kenny, of the existence of the deed of trust or settlement, and that he saw- it. By that deed, Thomas Hewitt, the father of the plaintiff, makes a disposition of 310 shares which he owned in the Bank of America. He makes over those shares to the President, Directors and Company of the Bank, in trust, among other things to pay to the plaintiff the dividends on $8,000 of the stock, as the same should accrue, for her education, and to transfer to her the prin- cipal, at the age of twenty-one ; and that if she should die before the age of twenty-one, without issue, the principal was to go to his son Thomas. The bank refused to accept of the trust, and by EFFECT OF MARRIAGE. 209 an order of this court of the 3rd of July, 1815, the assistant reg- ister of this court was appointed a trustee, to execute the trust raised by the deed of settlement. The defendant Udall admits, also, that he knew that the plaintiff was an infant. It is in proof that the husband was poor, and in embarrassed circumstances, when the sale of the stock took place, through the agency of one Ingraham, an intimate friend of the defendant Udall. It is admit- ted that Udall was acquainted with this peculiar embarrassment of Kenny, when he entered into the negotiation for the purchase of the stock. It is also in proof, that Udall was informed by coun- sel, whom he consulted, that the plaintiff, being an infant, could not legally tranfer her stock. Udall was to give nominally $5,000, for $8,000 in the bank stock ; and he says, in his answer, that he paid in cash to Ingraham, before the assignment, $1,300, and $1,500 after the sale, and delivered to him United States stock, to the amount of $1,200, and a bond for $1,000. The plaintiff does not admit, that Udall ever paid to Kenny, or to Ingraham, or to his agents, in the whole, above $2,900, or thereabouts, and that not above $150 ever came to the use of the plaintiff ; and there is no other proof of the payments alleged to have been made by the defendant Udall. The bond was for $1,000, payable in four years, without interest; and the defendant admits, that he took it up in the hands of Ingraham, and cancelled it, on paying $500.This last act marks the character of the whole transaction, and shows that the defendant made a most unconscientious speculation out of the distresses of the husband, or the fraud of his agent ; and if the inquiry now was, as to the amount of these payments, I should think that the defendant U. ought to be put to the proof of his payments, as every person is obliged to do, when strong symptoms of fraud or imposition appear. (3 P. Wm. 288. 5 Vesey, 48, 49). There is reason to believe the defendant retained the $980 which were intended to be appropriated as a premium for insur- ance on the plaintiff's life, until twenty-one, and that he meant to stand as his own insurer, after the application to the company for insurance had failed. It appears, that shortly after this specula- tion, and after the defendant Udall had got into the possession of of the dividends of this bank stock, Kenny having found no re- lief from this dissipation of his wife's property, was imprisoned for debt,' and discharged under the insolvent act, and continues still embarrassed and infirm. The bill charges, that he was un- able to procure the necessaries of life. Dealing in the manner which has been stated, with a necessitous person in distressed cir- I 210 LAW OF HUSBAND AND WIFE. cumstances, and for the future and contingent interest of his in- fant wife, forms a very alarming case, and one that would seem to call for relief, (even if the assignment was otherwise valid.) to the extent of making the assignment stand as a security only for the amount which the defendant U. should satisfactorily prove to have been actually paid. But independent of any undue advantage taken of the hus- band, the wife had an equitable interest in that fund, which could not be defeated by the act of the husband ; and that interest she is entitled to assert, and to have protected against the claim of the assignee. The right of the plaintiff in this case, was an equit- able right, known by the name of the wife's equity, and the hus- . band could not dispose of it, but upon the condition of its being subject to a suitable provision for her support. The stock was trust property, imder the control of the court, and placed under the care of one of its officers. The legal title, at this time, is probably in the personal representatives of Hewitt, and there can be no doubt of the power and ^uty of the court, not- withstanding the assignment by the husband to Udall, to give full effect to the equitable title of the plaintiff. It is now understood to be settled, that the wife's equity attaches upon her personal property, when it is subject to the jurisdiction of the court, and is the object of the suit, into whosover hands it may have come, or in whatever manner it may have been transferred. The same rule applies, whether the application be by the husband, or his repre- sentatives or assignees, to obtain possession of the property, o\ whether it be by the wife or her trustee, or by any person partak- ing of that character, praying for a provision out of that property. It is equally binding, whether the assignment be by operation of , law, or by the act of the party to general assignees, or by partic- ular transfer to an individual, and whether that particular trans- fet has been voluntary, or been made for a good and valuable con- sideration. In Gardiner v. Walker, i Str. 503, the bill was filed by the executor of the testator, to stay the husband, who had instituted a suit in the Spiritual Court for his wife's legacy. Lord Maccles- field said, it made no difference who was plaintiff in equity, and he directed, that the money should be disposed of for the benefit of the wife. In the case ex parte Coysegame, i Atk. 192, and in Elibank v. Montolieu, 5 Vesey, 73, the wife, as in the present case, applied to the court, and had her equity secured. • Assuming that the defendant Udall was a bona Me purchaser EFFECT OF MARRIAGE. 211 of the wife's personal estate, for a valuable consideration, or that the same had been fairly assigned to him by the husband as secur- ity for a debt, or in payment of a debt, yet the wife's equity would not be affected. This equity, as the Master of the Rolls said, in Murray v. Lord Elibank, 13 Vesey, 6. stands upon the peculiar doctrine of the court, and we must ascertain the extent of the doc- trine, not by general reasoning, but by the practice of the court. The case of Jewson v. Moulson, 2 Atk. 417, may be selected as the first direct authority in favor of the wife's equity, .as against a par- ticular assignment by the husband of her equitable portion, for a valuable consideration. Vobe being indebted to the defendant Moulson, assigned over to him all the share which, in right of his wife, he was entitled to, in her father's personal estate. The father had, by will, given the proceeds of his r^al estate to his execu- tors, in trust, after certain payments charged thereon, to be di- vided between his sons and his daughter, and if either died be- fore twenty-one, the share of such person was to go to the sur- vivor. This daughter was married to Vobe, and had no settlement, and was an infant when the assignment was made to Moulson. The case is, therefore, very considerably analogous to the one now before me. There were two bills brought : one by the executors, to be discharged of the trust, upon paying and assigning over the wife's share, and the other by the defendant M. to be paid that share, under his assignment. Lord Hardwicke held, that there ~ was an equity attached to the property itself, and that the assignee took it, subject to that equity. It was an equity grounded upon natural justice, and prevailed equally against the husband and his executors, and his general assignees,, and his voluntary assignee. In all these cases, the equity was extremely clear, and the only in- stance where the party had got the better of that equity, was the case of a particular assignment of a specific article, for a valuable consideration. But in that case, he relied upon the circumsta,nces, that the wife, during all the transaction, was an infant, and a par- ticular object of the care of the court, and that it was an assign- ment at once of her whole portion, and that the defendant M. was chargeable with notice of the wife's equity, and that the husband was in debt before he married, and had married the wife clandes- tinely. It is remarkable, that in all these particulars, that case, and the present one, correspond ; and Lord Hardwicke required a pro- vision to be made for the wife, out of the portion, before the claim of the creditor could be admitted. The parties afterwards agreed 212 LAW OF HUSBAND AND WIFE. to let the wife have half the portion, after deducting the costs, and that the other half should go towards the debt. The Chancellor decreed, that the agreement should be performed, having pre- viously declared, that he would not allow the creditor to receive the whole fortune of the wife, without a provision for her. After ;this case, it is not so easy to understand, how Lord Thurlow .should have been able to say, in Worrall v. Marlar, and Busknan v. Pell, i P. Wm. 459, note by Mr. Cox, and i Cox's Cases, 153, S. C, that "he did not find it any where decided, that if :the husband make an actual assignment by contract, for a valu- :able consideration, the assignee should be bound to make any pro- -yision for the wife out of the property assigned." Again, in the case of the Earl of Salisbury v. Newton, i Eden, 370, the wife was held to be entitled to a provision against the particular assignee, who" was a creditor of the husband, for a valuable consideration, of the whole of her equitable interest. The Lord Keeper declared, that the assignment could not stand against the wife and her issue ; and he directed an inquii^y as to a proper provision for herself and children, and that the overplus, if any, should go to the creditor. This last case was in 1759, and seems also to have been over- looked by Lord Thurlow, for it appears to carry the wife's equity to an extent, which he had not discovered. The case of Like v. Beresford, 3 Vesey, 506, put an end to all previous doubts on the subject. Lord Alvanley directed the settlement of the property of a married woman, a ward of the court, and all of the dividends and interest accrued, in opposition to the assignment by the husband, for a valuable consideration. He observed, in the learned review which he gave of all the cases, that Lord Hardwicke gave a reason which was convincing, in fa- -vor of the wife against any assignee of the husband ; that a de- cision in favor of the assignee for a valuable consideration, would put an end to the equity of the wife. Lord Hardwicke and Lord Northington had given decided opinions, that an assignment, even for a valuable consideration, would not avil against the wife's •equity. The subject came before Lord A. again, in Macauley v. Philips, 4 Vesey, 15, and he said, he was clearly of opinion, that the doubt respecting the assignment of the husband, for a valuable consideration, of the wife's equitable interest, was not well founded, with the single exception, perhaps, of a trust for a term for years of land, and that the assignment for a valuable consider- ation would not bar the equity of the wife. If the wife's personal EFFECT OF MARRIAGE. 21? fortune be vested in trustees, or be in any way under the control of the court, or placed within its reach, the court will not suffer it to be removed, until an adequate provision be made for her. Afterwards, in Wright v, Morley, ii Vesey 12, Sir Wm, Grant seemed to pause upon the doctrine so emphatically declared by Lord Alvanley, and deduced from the decisions of Lord Hard- wicke and Lord Northington. The husband had assigned, for a valuable consideration, only a part of his wife's equitable interest, he had assigned 100/. out of 260/. a year, of dividends of stock held in trust for her, and then he got abroad and left her without any provision. Sir Wm. Grant seemed to think it worth his while to look into the authorities in reference to the question, whether there was any difference between an assignment for a valuable consideration, and by operation of law ; and he considered it to be a litigated point, whether the equity of the wife could be bound or affected by the husband's assignment for a valuable consider- ation. But he admitted the assignment to stand, to the moderate extent of 100/. out of yearly dividends to 260I., and said, that he could not give her the whole of the dividends. It seemed, how- ever, to be admitted, that the wife was entitled to her ordinary equity for a settlement. I consider the wife's equity, as against any assignment what- soever and to whomsoever, to be now too well settled to be shaken. The only inquiry is, to zvhat extent shall her equity be carried over her personal estate, ndt yet reduced to the husband's possession. Lord Hardwicke intimated, in Jetvson v. Moulson, that upon a bill by the wife, an injunction ought to be granted to stay execution, upon a judgment at law by the husband suing for his wife's right, until a settlement was made upon her. Such an injunction was actually granted by the Court of Exchequer, in Winch v. Page, Bunb. 86, and by the Court of Chancery, in Meales v. Meales, 5 Vesey 517, note; and, upon general principles of Justice, it would appear, that the Court of Chancery ought to restrain the husband from availing himself of any means, either at law or in equity, to, obtain possession of the wife's personal fortune, unless he would make a competent provision for her. But we have no concern with that question in this case. The inquiry now is, how much of the wife's estate shall be preserved from the husband's assign- ment? In Parker v. Dykes, i Eq. Cas. Abr. 54 pi. 6, Mich. 1798, at the Rolls, the wife had a provision left her, by her father's will, out of the proceeds of real estate directed to be sold, and the hus- 214 LAW OP HUSBAND AND WIFE. band became a bankrupt, and died. His assignees brought their bill to have the land sold, and the surplus of the monies paid to them. The court dismissed the bill, and as the wife was wholly unprovided for, suffered her to retain the entire of this legacy. This was against the general assignees of the bankrupt hus- band ; and in Grey v. Kentish, i Atk. 280. i P. Wm. 459, note, S. C. Lord Hardwicke followed that decision, in allowing to the wife the whole provision left her by her mother, in opposition to the claim of the assignees of the bankrupt husband. So, again, ex parte Coysgame, i Atk. 192. Lord Hardwicke gave to the wife the whole of an annuity of £i\o a year, secured by bond, and belonging to her before marriage, as against the assignees of the bankrupt husband ; and he held, that the creditors stand in the place of the husband, and were not entitled to any more than he would have been. In Vandenanker v. Desborough, 2 Vern. 96, as early as 1689, the wife was entitled to the interest of £800, in- vested in land, by the directions of the testator, for her benefit, and that of her children ; that the court held that no part of that interest was liable to the creditors of the bankrupt husband, and the whole principal and interest was ordered to be settled accord- ing to the will. It is, also, to be here noticed, that in the case of the Earl of Salisbury v. Newton, alreay cited. Lord Northington directed a proper provision for the wife, against the particular creditor and assignee of the husband, and that the overplus, if any, should go to the creditor. The case shows, that the extent of the provision depended upon the circumstances of the case, and might or might not absorb the whole of the estate. It showed that there was no precise rule, limiting the provision to a moiety, or two thirds, or to any sum or proportion less than the whole. So, also, in Like v. Beresford, ubi supra, Lord Alvanley observed, that the court had a complete right, if they thought of it, under all the cir- cumstances to give to the wife and children, any part, or the whole, of the fortune, to which the wife might be entitled. Other cases have declared a different doctrine, and that the wife is not entitled to the whole of her property to her separate use. This was so said by the Master of the Rolls, in Burden v. Dean, 2 Vesey, jun. 607, and the same idea was thrown out in Wright v. Morley, in respect to a life interest of the wife, and that by the modern cases, the wife only took a portion of that pro- vision, as against the assignees of the husband. In Beresford v. Hobson I Madd. Ch. Rep. 362, the vice chancellor reviewed the cases, and concluded, that where a legacy was left to the wife, EFFECT OF MARRIAGE. 215 posterior to the mortgage, and there was a settlement of her mar- riage, she was not entitled to the whole of the legacy, as against the assignees of her husband. He said, that in no case had the court given the whole to the wife. The court, in the exercise of its discretion, had never tied itself down to any precise rule, but it had never given the whole. These observations of the Vice Chancellor, must be taken un- der some qualification, arising out of that case, for several of the authorities which have been already referred to, are in contradic- tion to them, if taken in their utmost latitude. He refers, also, to the case of Like v. Beresford, as containing an exception, and that where a ward of the court had been run away with, the court A^ould not give the husband any part of his wife's fortune. "It has a discretion in such cases, whether it will' give the whole, or a part, to the wife." And why not in every case, if the justice of it, and the condition of the wife, require it? The whole of this doctrine, as it was observed by Sir Wm. Grant, depends upon the particular practice of the court, and not on general reasoning ; and I think I may venture to say, that the practice of the court has not been sufficiently fixed and uniform, to form a determinate rule, controlling the exercise of the discretion of the court in the par- ticular case. The question, in every case, is, what is a suitable and adequate provision for the wife, under the circumstances? The provision must have a reference to the whole of the wife's fortune, and to what the husband has previously received. If the husband lives .with his wife, 'and maintains her, and has not misbehaved himself, the course of the court has been, to leave to him the receipt of the interest or dividends of her fortune, Sleech v. Thovington, 2 Vesey, sen. 560. Bond v. Simmons, 3 Atk. 20. In the present case, the husband has misbehaved him- self, in the prodigal waste of his wife's fortune, and suffering her to be left helpless and destitute, while still an infant. The ipter- ference and purchase by the defendant Udall, with knowledge of the trust and of the infancy of the wife, and of the necessities of the husband, and against the advice of counsel, and upon terms denoting oppression and undue advantage, does not deserve the least countenance or assistance. It is to be presumed, that the bank stock was the whole of the wife's fortune; and the husband would, in an ordinary case, have been entitled to the dividends to maintain his wife, and they were accordingly directed to be paid to him, soon after his marriage. But he has grossly abused his mar- ital right, by selling the whole contingent interest of the wife, in 216 LAW OF HUSBAND AND WIFE. advance ; and in justice to the wife, the authority to receive the di- vidends by him, or by Udall, ought to be withdrawn. It will be sufficient, in this case, to declare, that the assign- ment by Kenny to Udall was null and void, so far as respected the equity of the plaintiff, and that her equitable claim to that property remains unimpaired, equally as if no such assignment had been made. I shall further declare, that the assignment was made, and was procured, in fraud of her' rights, and the orders of this court directing the dividends to be first paid to Kenny, and afterwards to Udall, be rescinded ; and that Mr. Kip, the trustee, be directed to pay the dividends hereafter to arise, and to be re- ceived, to the solicitor for the plaintiff, to the discharge of the plaintiff's costs of this suit, and then to pay the dividends not so wanted, until the further order of this court, to the plaintiff her- self, or to her particular orders in writing, to be given, from time to time, as each dividend becomes due. To what extent a provis- ion ought to be made for her, may be determined upon the usual reference, when she arrives at the age of twenty-one, and she then may apply, upon the foot of this decree, for such provision. And it is hereby declared to be the duty of the President, Directors and Company of the Bank of America, not to permit any transfer of the shares appropriated in the deed of trust to the plaintiff, (be- ing shares at par to the amount of $8,000), without the order of this court, and that the solicitor for the plaintiff give notice of this decree to the bank. Decree accordingly. d. Chattels Real. SHAW V. PARTRIDGE,17 VT. 626. (1845). This was an action of covenant, brought to recover the rent reserved by a lease, and was commenced by Robert Moody, who deceased after the service of the writ upon the defendant and prior to the return day of the same. The plaintiff, Shaw, was appointed administrator upon the estate of Moody, and entered to prosecute the action before the justice, to whom the writ was made returnable, and the action came to the county court by appeal. It was alleged, in the declaration, that, on the first day of April, 1820, one William L.. Harrington leased to the defendant certain premises, by perpetual lease, reserving a yearly rent of $30.90 ; that the defendant entered into possession of the demised EFFECT OF MARRIAGE. 217" premises ; that, on the first day of November, 1828, the said Har- rington, by deed of assignment, transferred, &c., to Jabez Penni- man, administrator of the estate of George Y. Harrington, de- ceased, the said premises and rights demised and set forth in the said lease, together with the lease itself; that the said premises, on the first day of January, 1839, were, by the Probate Court for the district of Chittenden, set off to Adelia A. Harrington, widow of the said George Y. Harrington, as a part of her dower in the estate of her said husband; that afterwards the said Moody was married to the said Adelia, and was, at the time of commencing this action, her husband; and that pne year's rent, which became due April i, 1841, was still in arrear and unpaid to the said Moody. The defendant pleaded several pleas, as follows: — i. Non est factum. 2. That, after the service of this writ, and before the return day of the same, the said Moody deceased ; and that there- upon the said rent, sued for, survived to the said Adelia, his- widow, and vested exclusively in her; and therefore the admin- istrator could not prosecute this action. 3. The same, in sub- stance, as the second. 4. That there never was any such deed of assignment, from William L. Harrington to Jabez Penniman, as described in the plaintiff's declaration. 5. That the said Will- iam L. Harrington conveyed all his interest in said estate to one Jabez Penniman, to hold to him and his heirs and assigns forever,, and that the same was the property of the said Penniman at the time of the commencement of this action, absque hoc, that the same ever belonged to the estate of the said George Y. Harring- ton, or to the said Adelia. 6. That the defendant, after the making of the lease, and before the rent sued for became due, assigned all his interest and estate in the demised premises to one Freder- ick Purdy, who entered into possession thereof, and that the said Adelia accepted the said Purdy, as tenant of the premises, and received from him, as such tenant, one year's rent. 7. That after the making of the said lease, and before the rent sued for became due, the defendant assigned all his intQ^rest in the premises to one Nathaniel Blood, who entered into possession of said premises, and that, after the entry of said Blood, the said Moody, then be- ing the husband of the said Adelia, accepted the said Blood as the true and only tenant of the premises, and received from him one year's rent of the premises. The plaintiff demurred to the second, third, sixth and sev- enth pleas, and joined issue on the first and fourth, and replied 218 ' LAW OF HUSBAND AND WIFE. to the fifth plea, that, at the time of the decree of the Probate Court, mentioned in the declaration, the said rents and profits and all interest in the same belonged to the estate of the said George Y. Harrington; and upon this replication to the fifth plea the defendant joined issue. Trial by the court. On trial the parties admitted the existence of the decree of the Probate Court, setting off the rents reserved upon said estate to the said Adelia, then the widow of George Y. Harrington, and also the intermarriage of the said Adelia with the said Moody, and the death of said Moody. The plaintiff then offered in evi- dence the lease declared upon, which contained a covenant in these words : "And the said John W. Partridge, for himself, his heirs, executors and administrators, doth covenant and agree to and with the said William L. Harrington, his executors, admin- istrators and assigns, that he, the said John W. Partridge, his ex- ecutors, administrators and assigns, shall well and truly pay, or cause to be paid, unto the said William L. Harrington, his heirs, executors, administrators, or assigns, the aforesaid yearly rent or stim of $30.90, on the said first day of April annually, during the term of this lease," &c. The term of the demise was expressed to be "from the day of the date of this lease, so long as grass grows and water runs." The plaintiff also offered in evidence an as- signment of the said lease, and of the interest of the lessor in the demised premises, from William L. Harrington to Jabez Penni- man, which purported to convey the same to said Penniman, "as administrator to the estate of George Y. Harrington, late of said Burlington, deceased," to have and to hold "to him, the said Ja- bez, in his capacity aforesaid, and to his heirs and assigns for- ever." To the admission of these papers the defendant objected, upon the ground of variance between them and the declaration, but the court overruled the objection, and admitted them in evi- dence. Upon this evidence the court rendered judgment in favor of the plaintiff upon all the issues joined in the case. Exceptions by defendant. The opinion of the court was delivered by Hebard, J. This action is based upon a lease from William L. Harrington to the defendant, dated April i, 1820, which lease contains a covenant on the part of the defendant to pay to the said Harrington, his heirs, or assigns, a yearly rent. On the first day of November, 1828, the said Harrington assigned this inden- ture, and all his interest in the premises, to Jabez Penniman as EFFECT OF MARRIAGE. 219 administrator of the estate of George Y. Harrington. This in- terest was, by the Probate Court, on the first day of January, 1839, set off to the widow of the said George Y. Harrington, as part of her dower in his estate. Afterwards the said Moody inter- married with the widow, and, after suit brought, but before trial, he deceased. To the action the defendant has pleaded several pleas in bar, some of which were traversed, and the others demurred to. ' Upon these pleas several questions are presented. And the first is, whether this suit can progress, after the de- cease of Moody, in the name of his administrator. By the mar- riage Moody became possessed of whatever interest his wife had in the premises ; and the rent, that became due in his lifetime, wa^ his, and subject to his control. This rent having accrued dur- ing coverture, it was not necessary to join his wife in the suit, and it does not survive to the wife. The result would be, that, if the husband, in his lifetime, had not commenced the suit, after his decease this rent, which accrued in his lifetime, and during cov- erture, would be assets in the hands of the administrator, and must be collected by him. It is farther objected to the plaintiff's right of recovery, that there is no such privity of contract between the parties, as gave Moody any right to recover, — on the ground that the defendant, before this rent had accrued, had transferrred and assigned all his interest in the lease and the premises to another person. This objection would as well lie, if the action had been brought by Har- rington, the lessor, as when brought by an assignee of the lessor; and this must depend upon the covenant. The plea, upon which this question arises, and to which there is a demurrer, alleges, that, before any of this rent accrued, the defendant set over and assigned all his interest in the premises to one Blood, who entered and took possession of the same; and that afterwards the said Moody received of said Blood one year's rent, and then and there accepted said Blood as the only true and proper tenant of the premises. All that may be true, and not discharge the defendant from his covenant. If the action had been debt, instead of covenant broken, it would be different. When the landlord leases the premises, he takes into consid- eration the fitness and responsibility of the lessee. The lessee assigns the premises to whom he pleases ; the landlord has nothing to do in selecting the under-tenant. But it is a common principle of law, that, when a man enters into an express covenant to pay reht, that covenant continues binding upon him, notwithstanding 220 ' LAW OF HUSBAND AND WIFE. he have assigned the lease. The same rule of law. that would thus-, relieve from his liability on his covenant, would absolve him from- any liability upon his promise to pay a stipulated sum for the pur- chase of property, if he should see fit to divest himself of that property, before the promise was enforced. This point is fully established in the case of Ariol v. Mills, 4 T. R. 94. That is a. strong case and establishes more than is necessary in the present case. There the "lessee had been dispossessed of the demised premises, before the rent became due, by the operation of law and the acts of other persons. In the case at bar the defendant, by his own deed, assigned the premises to Blood voluntarily. The main question remains to be considered; and that is,, whether Adelia A. Harrington, the widow of George Y. Harring- ton, was legally the assignee of the lessor, so that she, or any other person in her right, could maintain this action. The objec- tion to this is, that the decree of the Probate Court was inopera- tive and gave her no interest in the premises. It is not pretended, but what here was such an interest in land, as would make it the subject of such a decree, if this interest was legally in the estate- of the said George Y. Harrington. This was a durable lease, and William L. Harrington had an assignable interest in the estate, and, by his deed in the usual form, assigned all his interest in the premises to Jabez Penniman, as administrator of the estate of George Y. Harrington, to hold in his capacity as administrator. The inquiry may naturally arise here, — in what other way- could this interest have been assigned, so as to have vested it in the estate of George Y. Harrington? If it had been assigned ta the estate, in terms, it would have been void. There being no other depository appointed by law, the administrator was the proper person for this purpose, to receive the title for the time being. He is, pro hac vice, the representative of the deceased,, and, with reference to the property, stands in his place. If, then, this interest was held by Penniman in his capacity of adniinistrator, it was held by him in the same manner, and for the same purpose, that the other property of the estate was held, and subject to the same orders of the Probate Court. When it was thus assigned to the administrator, it became, by operation of law, the property of the estate, or, more properly speaking, a parr of the estate, of George Y. Harrington ; and, by virtue of the de- cree of the Probate Court, it became the property of Adelia Har- rington. This was a covenant that run with the land, and, as the interest in the land passed, it carried the covenant along with EFFECT OF MARRIAGE. 221 It; SO that there was the same privity of contract and privity of ■estate between the parties, that there would have been, if the ^.ssignment had been made to George Y, Harrington in his life- time, and had then passed to his widow by the decree of the Pro- bate Court, as in the present instance. This also disposes of the question of variance ; for, with this view of the case, the plaintiff declared, at least, according to the legal effect of the assignment. Judgment affirmed. e. Peal Estate. BREEDING v. DAVIS, 77 VA. 639. (1883). Appeal from decree of Circuit Court of Pulaski County, ren- dered 2d November, 1882, in the cause therein pending of A. J. Breeding, plaintiff, against Wm. H. Davis and als., defendants. Randolph Clark died nth April, 1877, seized of real estate in said county, whereof sixty-nine acres descended upon his daughter, Eliza L., the wife of Hardin L. Crum. Of their marriage there was issue born alive. In February, 1879, William H. Davis, a creditor of Crum, who was a non-resident of this state, brought an action at law against Crum to recover a debt of $122, and in- terest, had an order of publication executed, and levied an attach- ment on Crum's interest in said land. The said court, at its March term, 1879, ordered the sheriff to sell at public auction, in front of the courthouse of said county, all the right, title and in- terest of Hardin L. Crum in the land of Randolph Clark, de- ceased. The execution of this order was delayed until June, 1 88 1. In the meantime, by deed dated 28th February, 1881, Crum and wife sold and conveyed said land to said A. J. Breed- ing. Soon afterwards Breeding brought this suit in chancery to enjoin the order of sale, the injunction being awarded loth May, 1881. By deed dated 27th April, 1881, Breeding conveyed this land to Jackson Morriss, with general warranty, and a special co- venant to quiet the title thereto, and part of the purchase money withheld until grantor performs this covenant. Wm. H. Davis answered. By its said decree of 2d November, 1882, the said court decided that Hardin L. Crum had such an interest in the land in the bill mentioned, that the same might be sold for his debts, and decreed that the injunction be dissolved and the bill dismissed with costs. From this decree said Breeding was al- owed an appeal by one of the judges of this court. Lacy, J., delivered the opinion of the court : 222 LAW OF HUSBAND AND WIFE. It is conceded that Hardin L. Crum had no other nor greater interest in the land of Randolph Clark than such as he might have acquired by marriage with his daughter, Eliza L. The ap- pellees contend that by reason of the said marriage of the said Crum, he, having had children born alive of the marriage was seized of a vested right of curtesy in the land of the wife, con- tingent upon her dying before him, which was curtesy initiate. The appellant, on the other hand, contends that the act of the general assembly of Virginia passed April 4, 1877, known as "the married woman's act," had set apart the property of the wife, to be held free from any and every power of the husband, either to alienate or encumber the wife's land by any act, either directly or indirectly, and that no right of curtesy remains to the husband, except when he survives the wife. The said act provides : "That the real and personal property of 'any female, who may hereafter marry, and which she shall own at the time of her marriage, and the rent, issues and profits thereof, and any property, real or per- sonal, acquired by a married woman, as a separate and sole trader, shall not be subject to the disposal of her husband, nor be liable for his debts, and shall be and continue her separate and sole property ; and any such married woman shall have power to con- tract in relation thereto, or for the disposal thereof, and may sue and be sued, as if she were a feme sole, provided, that her hus- band shall join in any contract, in reference to her real or personal property, other than such as she may acquire as a sole trader, and shall be joined with her in any action by or against her ; and pro- vided further, that nothing herein contained shall deprive her of the power to create, without the concurrence of her husband, a charge upon such sole and separate estate as she would be em- powered to charge without the concurrence of her husband, if this act had not been passed. 2. All real and personal estate hereafter acquired by any married woman, whether by gift, grant, purchase, inheritance, de- vise, or bequest, shall be and continue her sole and separate estate, subject to the provisions and limitations of the preced- ing section, although the marriage may have been solemn- ized previous to the passage of this act ; and she may devise and bequeath the same as if she were unmarried, and it shall not be liable to the debts or liabilities of her husband; provided, that nothing contained in this act shall be construed to deprive the hus- band of curtesy in the wife's real estate, to which he may be en- titled by the laws now in force ; and provided further, that the sole EFFECT OF MARRIAGE. ' 223 and separate estate created by any gift, grant, devise, or bequest shall be held according to the terms and powers, and be subject to the provisions and limitations thereof, and to the provisions and limitations of this act so far as they are in conflict therewith. 3. Any married woman may, in her own ttame, or by her next friend, file a bill in equity in any court having jurisdiction over the subject matter, in the event of her husband's refusing, or being incompetent to unite in the conveyance or disposal of her separate estate; and if the court shall be of the opinion that the interest of the married woman will be promoted by a sale thereof, may make such decree as may be necessary to convey absolute title thereto." Acts of Assembly, Sess. 1876-77, pp. 333, 334. Let us consider what changes have been wrought in the law concerning the estates by the curtesy, which the husband may have in the lands of the wife, by the enactment of this statute. When a man takes a wife seized during the coverture of an estate of inheritance, legal or equitable, such as that the issue of the marriage may by possibility inherit it as heir to the wife, has issue by her born alive, and the wife dies, the husband surviving has an estate in the land for his life, which is called an estate by the curtesy. 2 Bl. Com. 126. The requisites of an estate by the curtesy, then, are mar- riage, seisin of the wife, birth of issue aliye, and death of the wife. I Ldm. Dig. J"]. The death of the wife is one of the requisites for curtesy. It is conceded, in this case — indeed, it is proved — that the wife is alive. During the wife's life, after issue born alive, the husband is said to be tenant by the curtesy initiate. Upon her death only, is he tenant by the curtesy consummate. Before the passage of the act quoted above, the husband ac- quired by the marriage an estate in the wife's land, more or less ample according to the birth or failure of issue. By the marri- age, while yet no issue had been born of the marriage, the hus- band acquired a freehold interest during the lives of himself and wife, and in all such freehold property of inheritance as she was seized of at the date of its celebration, and also that which she be- came seized of during the coverture. The nature of this estate was not that the husband alone, but he and his wife together, were in right of the ivife, seized of a freehold estate of inheritance in her freehold lands of inheritance. As soon as issue was born, the estate of the husband was changed in its character. By the birth of issue, he became tenant by the curte.sy initiate, and as such took an estate in the lands of his wife in his own right. The hus- :224 LAW OF HUSBAND AND WIFE. band, upon the marriage, was entitled to take, during their joint lives, the rents and profits of her freeholds. Under the feudal law, before issue born, the husband and wife did homage together, but after issue born alive, he performed that service alone, and was called tenant by the curtesy initiate. Mr. Blackstone says: ■"The husband by the birth of the child becomes tenant by the' curtesy initiate, and may do many acts to charge the lands, but his estate is not consummate until the death of the wife, which is the fourth and last requisite to make a complete tenant by the curtesy." In this case, the wife being alive, it is not contended that the estate of tenant by the curtesy in the husband has been completed. But the Circuit Court held, as we have seen, that the husband had- a present vested interest in the wife's lands, such as could be sold during the wife's life, and decreed the sale of this supposed inter- est of the husband in his wife's land. Now what was that interest? Did he have "a freehold inter- est, sucli as has been described above, during the joint lives of him- self and wife/' which would have enabled him to take during their joint lives the rents and profits of her freeholds? That cannot be successfully contended, for, by the act of assembly, cited above, the real and personal property of the female, and the rents, issues and profits thereof, are declared not to be subject to the disposal of her husband, nor to be liable for his debts. Can this supposed interest, which the Circuit Court decreed to be sold, be that tenancy by the curtesy initiate, by which, after issue born, the husband did homage alone to the Lord, or held such an estate, which, Mr. Blackstone says, he might do many acts to charge? Let us turn again to the act before referred to: By that act the property of the wife is not only set apart to her own use as to the rents and profits, but she is authorized to devise the same as if she were unmarried, and it is declared not to be liable to the debts or liabilities of her husband. What possible in- terest or right of control can the husband be held to have in or to the lands of the wife under this statute during the coverture? And as if to clear this question of every possible doubt, the third ■section of the said act provides, that "if the wife shall wish to ab- solutely dispose of her property her husband shall unite with her, and if he shall refuse, she may carry him into court, to compel him." .When the court is to consider, not whether it is to the in- terest of the husband, but, the act declares, "and if the court shall be of opinion that the interest of the married woman will be pro- EFFECT OF MARRIAGE. 225 moted by a sale thereof, may make such decree as may be neces- sary to convey the absolute title thereto." Now, note the language, "the absolute title" — after consider- ing only, "whether it is to the interest of the married woman." Under a reasonable construction of this act, what estate is left in the husband during the coverture ? And under the very language of the act, when is the interest or estate of the husband to vest upon these lands of the wife during the coverture ? The act, however, provides, "that nothing contained in this act shall be construed to deprive the husband of curtesy in his wife's real estate." What is meant by this provision^ — how is it to be construed ? It should be construed so as to bring all parts of the act in harmony with each other, but not so as to destroy the act, and render all its provisions nugatory and valueless. What is it the husband is not to be deprived of? Curtesy. What does curtesy mean? Mr. Bouvier says: "Curtesy is the estate to which by common law a man is entitled, on the death oj his wife, in the lands or tenements of which she was seized in pos- session in fee simple, or in tail during their coverture, provided they have had lawful issue born alive which might have been cap- able of inheriting the estate," an estate to which he is entitled, at the death of his wife. If this provision is construed according to its very letter and terms, it is in harmony with the whole act, which would, in substance, then provide that the wife should have absolutely her property during her life, but that at her death her husband, if he survived her, might have curtesy in the land. If, as is contended, the act means curtesy initiate, all the pro- visions of the act are thus repealed, and the terms of the act are made to conflict. For, if the property, both real and personal, and the rents and profits of the same are to be in the wife, and the wife alone, they cannot, at the same time, be in the husband in any degree, in his own right, which, as we have seen, they would be, if he held a tenancy by the curtesy initiate. Then, we think, it is clear that the husband has no interest whatever in the lands of the wife during the coverture ; and that in this case, there- fore, Hardin L. Crum had no interest in his wife's lands, which the Circuit Court could sell, and that the Circuit Court erred in its decree complained of, whereby it dissolved the injunction, which restrained the sheriff from selling the lands of the wife to satisfy the debt of the husband, who had no interest in the land mentioned in the bill subject to levy and sale for his^ debts; the right to the rents, issues and profits of his wife's land never hav- 226 LAW OF HUSBAND AND WIFE. ing vested in ihe said husband for the reasons stated above, during their joint lives. The consequence of giving the wife, as the statute does, the control of her property free from the interference of her husband, is to postpone his right of curtesy until her death, and hence to render it contingent on his surviving her. See Wells on the Sep- arate Property of Married Women. The rights formerly acquired by the husband by virtue of the marriage, have almost all been taken away, and the disabilities of the wife have nearly all been removed. She now controls her own estate entirely, except that she cannot convey her real estate without her husband. Beach v. Miller, 51 111. 209. But by the Virginia statute, the court may compel her husband to unite in the conveyance, if it shall appear to be for her benefit. This is solely for her benefit, and to prevent her from squandering the estate. The husband has now only a modified tenancy by the curtesy, dependent upon a contingency, and no estate vests in the husband during the life of the wife. This is rather a shadowy estate. It is an interest which may possibly ripen into something tangible in the uncertain future. Previous to the act, it could be sold on execution against the husband. Now the wife has the sole control of her real estate during her life, and the husband has no interest until her death. This estate at best is now a bare possibility, dependent on his sur- viving his wife. Martin v. Robson, 65 111. 132 ; Hill v. Chambers, 30 Mich. 427. At common law the death of the wife was necessary to the estate by the curtesy. It is one of the four requisites, as we have seen. But upon the birth of a child, another anomalous estate was created, called tenancy by the curtesy initiate. It was the increasing the estate for their joint lives, which he held before in his wife's lands, into an estate for his own life. The married woman's act, as it prevented his acquiring any interest in his wife's estate during her life, destroyed the estate of tenancy by the curtesy initiate. The act, however, does not defeat die husband's estate by the curtesy at her death ; provided the estate has not been aliened be- fore her death. The act only protects her estate during her life, it does not, at her death, aflfect the law of succession as to real or personal estate. Porch v. Fries, 18 N. J. Eq. 208. By the former law, the husband and wife were regarded as one person, and her legal existence and authority, to a degree, were lost or suspended — merged in that of her husband. She had EFFECT OF MARRIAGE. 227 not capacity to contract, nor had she administration of property. By the marriage, if the wife was seized of an estate of inheritance, the husband became seized thereof, taking the rents and profits during their joint lives, and by possibiHty during his Hfe. Now, he cannot enjoy the profits of her real estate without her permission. He has no control over her separate property. It is not subject to his disposal, control, or interference. All her separate property is under her sole control, to be held, owned, pos- sessed and enjoyed by her the same as though she was sole and unmarried. The product of her labor is her exclusive property, and she may use and possess it free from the interference of her husband or his creditors. The intention of the legislature is plainly to abrogate the common law rule to a great degree, that the husband and wife were one person, and give her the right to manage her separate property and contract with reference to if. Curtesy, as we have said, is preserved by the statute, but his wife is living; so Crum has no title by the curtesy. Whatever interest he has in his wife's lands is denpendent upon a contingency — whether he shall survive his wife ; and no estate can be said to vest in him_ during the life of the wife. The appellant, Breeden, has become by purchase entitled to the wife's land, and although he has sold to a third person for value, he has sold under a general warranty and under a special covenant to quiet the title to this land, and the purchase mdhey is withheld until he performs this covenant, and he is entitled to bring this suit by reason of his subsisting interest therein. It is objected by appellee, that as the debt of the husband, Crum, is less than $500, this court has no jurisdiction of this cause. But this is not a contest over, or indeed concerning the Crum debt to Davis, and it is of no concern to this case what is its aVnount, the question here is, where is the title to Mrs. Crum's land vested? If in Mrs. Crum, then the Circuit Court cannot sell it for Crum's debt. If the title is in Crum in any degree by reason of the co- verture ,then the Circuit Court may sell the interest of Crum in the land ; so it cannot be maintained that the title to this land is not involved. The title to this land is exactly the question at issue, and the jurisdiction of this court undoubted. As to the adjudications in the common law suit, they do not in any wise affect Mrs. Crum, nor any land of hers, as she was not a party to that suit, and in no way connected with it. The decree complained of must be reversed and anulled, and the appellee perpetually enjoined from further proceedings under his judgment. Y. MARRIAGE MODIFIED, 1. BY EQUITY. JAQUES V. M. E. CHURCH, 17 JOHNS. 549. (1820). Appeal from the Court of Chancery. The bill filed by the respondents, on the loth of March, 1813, against the appellants and Henry Cruger, was for an account of the real and personal estate of Mary Jaques, deceased, late the wife of the appellant, John D. Jaques, and who was formerly the wife of William Alex- ander, deceased. It stated, that Mary Jaques, at the time of her intermarriage with the denfendant, J. D. Jaques," was seised and possessed of a large real and personal estate, particularly men- tioned in the bill ; that, in contemplation of the marriage about to take place between her and J. D. Jaques, a deed of marriage set- tlement was made and entered into, between Mary, of the first part, John D. Jaques, of the second part, and H. Cruger, of the third part, dated the 25th of September, 1805, by which the said Mary conveyed all her estate, real and personal, to the defendant, Crugefr, to the use of the said Mary, until • the marriage should take place, and from and after the marriage to the use of such per- sons, and for such estates, as she, with the concurrence of her in- tended husband, should, by deed, attested by two witnesses, or by her last will and testament, limit and appoint ; and, until such ap- pointment, to the use of H. Cruger and his heirs, during the life of the said Mary, to enable her to take the profits thereof, free from the control of her husband, and at her absolute disposal; that, immediately after the execution of the deed, the miarriage took place between the parties. The bill alleged that, after the intermarriage, J. D. Jaques, during the lifetime of his wife, by artful contrivances, possessed himself of her personal estate, and of the rents and profits of her real estate, and applied the same to his own use, changing the securities for money, and taking new securities in his own name; and appropriated the money belong- ing to his wife, in purchasing real estate, the titles to which he took in his own name, and claimed them as his own ; that, among the securities so held by the said Mary, was a bond of one Heyl, for a large sum, and a mortgage of two leasehold, and one free- MARRIAGE MODIFIED. 229 hold estate ; which securities J. D. Jaques having got into his pos- session, proceeded, in his own name, and procured a decree for the sale of the mortgaged premises ; that he sold one of the leasehold estates to a third person, for $1,980, and purchased in the other for $1,510, and conveyed it to his brother, Robert Jaques, the de- fendant; and that he also purchased in the freehold estate, and took a deed in his own name ; which two last estates the plaintiffs claimed as part of the estate of Mary Jaques, having been paid for out of her personal estate ; and that, before the sale of the mort- gaged premises, the defendant, J. D. Jaques, received the rents and profits. That Mary Jaques, intending to execute the power reserved to her by the deed of settlement, did, with the concurrence of her husband, by deed, dated the 12th of September, 1812, convey all her real estate to the defendant, Robert Jaques, in fee, upon trust, that after her decease, he should sell the same, and out of the pro- ceeds, after paying the expenses, should dispose of the surplus, as follows : to wit., one third to the trustees of the Methodist Epis- copal Church; one third to the children of Thomas Brown, and his wife, in equal shares ; and the remaining third to the defend- ant, J. D. Jaques. That after the execution of that deed, Mary Jaques, on the 25th of September, 1812 ,made her last will and testament by which she gave several specific legacies to the plain- tiffs, to 'the children of Thomas Brown and his wife, to Jane Brown and others ; and all the residue of her estate she gave, the one third thereof to the plaintiffs, the trustees of the Methodist Episcopal Church ; one third thereof to the plaintiffs, the children of the said Thomas Brown and wife ; and one third to the defend- ant, J. D. Jaques ; and appointed Paul Hic^s and Thomas Brown, plaintiffs, and J. D. Jaques, defendant, executors of her will. That after the will was duly proved, and the specific legacies paid and delivered, the plaintiffs. Hicks and Brown, executors, applied to J. D. Jaques, the co-executor, who had the custody of the papers, securities, and personal effects of the testatrix, to exhibit the same to them, in order that an inventory might be duly made ; but the defendant, J. D. Jaques, refused to do so, unless the plaintiffs would first agree to pay him a demand of about $12,000, which he said he had paid for maintaining the said Mary Jaques, her horses and carriage, etc. The bill set forth the particulars of the residuary personal estate of the testatrix, as far as it had come to the knowledge of the plaintiffs ; and prayed an account of the same, and a discovery 230 LAW OF HUSBAND AND WIFE. of what moneys, or securities for money, belonging to Mary Jaques at the time of her marriage, had come to the hands of the defendant, J. D. Jaques, and how he had disposed of the same; and also of the rents and profits of the real estate received by him ; and tha-t the title deeds might be brought into court ; that he might be compelled to surrender the trust of the real estate, or give se- curity for the due performance thereof ; that a receiver of the es- tates may be appointed, and the defendants enjoined from dispos- ing of any part thereof ; and for general relief, etc. The defendants, in their answers, admitted that Mary Jaques, before, and at the time of her intermarriage with J. D. Jaques, was seised of certain real estates, which they mentioned ; and was pos- sessei.! of personal property, consisting of slaves, household furi- ture, horses, carriages, m.oneys, securities for money, etc., amount- ing to aliout twenty-two thousand dollars. That the deed of set- tlement, of the 25th of September, 1805, was signed and sealed, but that it was never delivered, and, therefore, they denied its validity. They admitted the mortgage of Heyl, and a judgment against him for $2,772 ; and that the mortgage and judgment were put into the hands of J. D. Jaques, by Mary Jaques, to collect ; and that he was let into the receipt of the rents and profits of the mort- gaged premises ; that J. D. Jaques stated, and settled an account with Heyl, the balance of which, on the first of July, 1806, was $8,026 and 97 cents. The defendants, also, admitted the sale of the mortgaged premises, and the purchase and conveyances, as stated in the bill, setting forth the particulars of the transaction; that Robert Jaques had notice, at the time J. D. Jaques conveyed to him the leasehold lot in Murray street, of the manner in which J. D. Jaques obtained title to the leasehold premises under the mortgage; and that the lease of the lot in Murray street was re- newed, in 1812, for 42 years, and assigned to Robert Jaques;" and that the mortgaged premises purchased in by J. D. Jaques, at the master's sale, were paid for by deducting so much from the sum reported due by the master ; and that J. D. Jaques informed Mary, his wife, that he had received the said money from Heyl, or property equivalent, with which she appeared satisfied. That J. D. Jaques never paid, or accounted to her for the money or propferty so received and obtained by him. The defendant, J. D. Jaques, admitted that he received $808 and 71 cents, for rents and profits of the mortgaged premises, before the sale, which he had not paid over. That his marriage was kept secret 1 1 months after it took place, during which time his wife transacted her business MARRIAGE MODIFIED. 231 by her former name, Mary Alexander ; and he set forth further, the particulars of his account of expenses for maintaining her, Jier horses, etc., during her life, and for family expenses, etc. The cause was brought to a hearing on the pleadings and proofs; and on the 27th of June, 181 5, the chancellor made a de- cretal order, settling the principles on which an account was to be taken, and an order of reference was made to a master to take and state the account, according to the directions therein given. The order or decree was as follows : "That the deed in the pleadings mentioned, bearing date the 25th of September, 1805, made by and between mary, late wife of John D. Jaques, of the first part, the said John D. Jaques, of the second part, and Henry Crtiger ,of the third part, was duly exe- cuted, and is a valid instrument in law, for the uses and purposes therein mentioned; and vinder and by virtue of which deed, the estates real and personal of the said Mary were secured to her sole , and separate use, according to the tenor of the said deed ; and the real and personal estates of right belong, and are distributable according to the last will and testament of the said Mary, late the wife of the said J. D. Jaques, made under the power in the afore- said deed for that purpose contained, and according to the deed in the pleadings also mentioned, made by the said J. D. Jaques, and the said Mary, lately his wife, of the one part, and the said Robert Jaques, of the other part, bearing the date of 12th of September, in the year one thousand eight hundred and twelve. And it was fur- ther decreed, that the freehold estate situate adjoining Warren street, in the City of New York, mention in the' pleadings in this cause, the title to which stands in the name of the said J. D. Jaques, which title he acquired from a master in chancery, in consequence of a sale thereof, under a decretal order of this court, and also the leasehold estate, situate adjoining Murray street, in the City of New York, likewise mentioned in the pleadings in this cause, the title to which stands in the name of the defendant Robert Jaques, and which title , he acquired from the said John D. Jaques, by assignment, as in the pleadings mentioned respectively, of right belong to the said Mary, late the wife of the said John D. Jaques, and constitute part of her estate, secured to her separate use, by the said deed of the 25th of September, 1805 ; and the said last mentioned estates respectively of right belong, and are distribut- able, according to the aforesaid deed, to the said Robert Jaques, of the twelfth of September, one thousand eight hundred and twelve, and the last will and testament of the said Mary. And for 232 LAW OF HUSBAND AND WIFE. the purpose of such distribution of the aforesaid estates respec- tively among the complainants, the trustees of the Methodist Epis- copal Church, in the City of New York, and the complainants Hannah Maria Brown, Mary Alexander Brown, Evelina Truxton Brown, John Conway Brown and Washington Brown, the infants, and the defendant John D. Jaques, according to their respective rights, under the said deed to the said Robert Jaques, of the twelfth of September, one thousand eight hundred and twelve, and the said last will and testament of the said Mary, late the wife of the said J. D. Jaques. This court doth further order, adjudge and decree, that the said premises in the pleadings mentioned, situate at the corner of Broadway and Reed street, and the prem- ises in the pleadings mentioned, situated adjoining Broadway and Crosby street ; and also the freehold estate, situate adjoining War- ren street, the title whereof stand in the name of the said John D. Jaques ; also the said leasehold estate, situate adjoining Murray street, standing in the name of the said Robert Jaques, be; sold at public auction, under the direction of a master m chancery ,j he giv- ing at least six weeks previous notice of the time and place of such sale, in one or more of the public newspapers printed in the City of New York; that all proper parties join in competent deeds and conveyances to the purchasers thereof, and that he deposit the moneys arising from such sales with tJie assistant register, to abide the further order of the court relating thereto. And it is fur- ther ordered, adjudged, and decreed, that the said John D. Jaques shall account with the complainants for the rents and profits of the said real estates respectively, that is to say, for the said real estate situate at the corner of Broadway and Reed street, from the decease of tht said Mary, his late wife ; and for the said real estate adjoining Broadway and Crosby street, from the time of the inter- marriage between the said John t). Jaques, and the said Mary, his late wife; and for the said real estate adjoining Warren street, from the first day of March, 1810, the time when he took a title to the same from a master in chancery, as mentioned in the plead- ings in this cause; and that the said John D. Jaques and Robert Jaques shall likewise respectively account for the rents and prof- its of the said leasehold estate, situate adjoining Murray street, standing in the name of the defendant, Robert Jaques, from the day last mentioned, according to the time they shall respectively have been in possession, or the receipt of the rents thereof; in taking which account of rents and profits, the said John D. Jaques and Robert Jaques, respectively, shall be charged with MARRIAGE MODIFIED. 233 what they have received, or ought to have been received by them respectively, or may have been lost by reason of misconduct, or wilful default in relation thereto; and that in relation to the said freehold and leasehold estates, adjoining Warren street and Mur- ray street, in taking the accounts of the rents and profits thereof, the master shall make just allowances to the said John D. Jaques and Robert Jaques, respectively, for all improvements by them made thereon, which are of a nature to be permanently useful, or increase the value thereof. And it is further ordered, adjudged and decreed, that the defendant, John D. Jaques, shall account with the complainants for all the personal estate of the said Mary, his late wife, which belonged to her at the time of their intermar- riage, and which has come to his hands since the said marriage ; and that in taking the said account of the personal estate, the said John D. Jaques shall only be charged with the principal sums of money he may have received, and interest from her decease, and not with sums received as interest, or dividends arising from the said Mary's personal estate during her life ; and the said John D. Jaques shall,, on taking this account, have all just allowances for any sums expended out of the said principal moneys, and rents, and profits, in improvements of, and for repairs and taxes on the real estates of the said Mary, which she had at the time of the intermarriage between her and the said John D. Jaques, or otherwise expended for her in the purchase of any goods and chattels by her special direction in each particular case, and ap- parently for her benefit; but that the said John D. Jaques shall not have any allowance for expenditures in the maintenance of the said Mary, her family, or equipage, during the time she was the wife of the said John D. Jaques. And it is further ordered, adjudged and decreed, that it be referred to a master in chancery, to take the accounts as before directed, and report thereon to the court with all convenient speed, and that the master have power to examine each or either party upon interrogatories, or otherwise, under oath, and to compel the production of all books and papers by either party, which may be necessary in taking the accounts, and that the question of costs, and all further directions, be re- served till the coming of the master's report." It being, afterwards, discovered that some of the property advertised for sale, by the master, pursuant to the decretal order above mentioned, had been mortgaged, further directions were given to the master, by an order of the 5th of October, 1815. In pursuance of these orders, the master (F. Ball) proceeded in tak- 234 LAW OF HUSBAND AND WIFE. ing the accounts, and continued until March, 1816, when he died, without having completed them. On the 29th of April, 1816, an order was made, by consent, directing the proceedings to be con- tinued before another master, to perfect the conveyances, &c., and to complete the account; pursuant to this order, the master (F. Arden), on the loth of April, 181 7, made his report, to which the respondent took exceptions, and on the rehearing as to the exceptions, presented a petition, on which the chancellor, on the 29th of September, 1817, made an order, giving directions as to the disposition of some of the property, in the hands of the assist- ant register, and the master. The exceptions to the master's re- port were eighteen in number; the chancellor, after argument, made a decree, the 12th of November, 18 17, in which some of the exceptions were allowed, and the others disallowed : 3 Johns. Ch. Rep. 'j'j — 120, and the report was ordered to be recommitted to the master, for the purpose of being amended in conformity to the decretal order so made. On the i6th of January, 1818, the master made his report, pursuant to the said decretal order. By this report, there was found due from the appellant, John D. Jaques, individually, to the respondents, on the loth of April, 1817, $4,493 and 47 cents, besides the sum of $1,745 ^'^^ ^9 cents due J. D. J. and R. J., according to the master's former report, not excepted in that respect. On the 15th of June, 1818, the cause came on to be heard on the master's report and further report, and the equity reserved, and the question of costs ; and the chan- cellor, on the same day, made his final decree, by which the afore- said sums, amounting to $6,238 and 66 cents, with interest there- on, from the loth of April, 1817, were directed to be paid to the respondents, together with their shares of other moneys which had arisen from the rents of property adjoining Broadway and Crosby street, in the city of New York, and the sale of some of the personal property, of Mary Jaques, and some of her out- standing debts which had been collected and paid into court pend- ing the suit; and further, that the appellant, J. D. J., shoud pay the costs of the suit. From this decree the appellants appealed to this court. The respondents, also, filed a cross appeal. .Spencer, Ch. J. — The validity of the deed of settlement has been denied, on the ground that it was never delivered to Mr. Cruger, the trustee. There is no positive evidence that a formal delivery took place. The possession of the deed by Mrs. Jaques is not inconsistent with a delivery to Cruger; for the possession of the deed by the cestui que trust was, in a legal view, the pos- MARRIAGE MODIFIED. 235 session of the trustee. The, deed of the 12th of September, 1812, executed by John D. Jaques and his wife, professedly in virute of the deed of settlement, and in execution of the power contained in it, and the will of Mrs. Jaques, which professed, also, to be made under the power reserved by that deed, the appointment of her husband as one of her executors, and his qualifying and act- ing as such executor, are decisive proofs, as regards him, that the settlement deed was well executed ; and after such repeated and solemn acts of recognition, he cannot be heard to say the deed of settlement was not delivered. It appears that Mrs. Jaques was the owner of a considerable real and personal estate ; and it does not admit of a doubt, that her object, in making the deed of settlement, was to guard against the legal effects of a marriage, which, by operation of law, would di- vest her absolutely of her personal estate, and take from her, dur- ing the coverture, all control over her real estate. Her motives could not be to guard against herself, but to retain dominion over her estate, and to prevent her intended husband from interrried- dling with her estate, any further than she was pleased to allow. The deed of settlement is upon the trust, that, the trustee should permit her to hold, enjoy, and let the premises conveyed,, and receive and take the rents and profits, and that her receipts should alone be sufficient discharges ; so that the same should not be subject to the debts, control, or intermeddling of her intended husband, but should be the only use, benefit and disposal of her, during her natural life, and then to the tise of those to whom she should grant or devise the same, by her last will and testament, lawfully executed. The question is, whether, Mrs. Jaques, with respect to her estate, is not to be regarded in a court of equity as a feme sole, and may not dispose of it as she pleases, without re- gard to her trustee ; there being nothing in the deed of settlement requiring the consent or concurrence of her trustee, nor any ne- gation of an unlimited power of disposition of the estate by her. I have examined this case with the unfeigned respect which I always feel for the learned chancellor, who has denied the right of Mrs. Jaques to dispose of her estate, without the consent or concurrence of her trustee; and I am compelled to dissent from his opinion and conclusions. From the year 1740, until 1793, (with the single exception of the opinion of Lord Bathurst in Hulme V. Tenant, which occurred in 1778, and in which case a rehearing was granted by Lord Thurlow, and the opinion re- versed), there is an unbroken current of decisions, that afeme co- r 236 LAW OP HUSBAND AND WIFE. z'crl, with respect to her separate estate, is to be regarded in a court of equity as a feme sole, and may dispose of her property without the consent or concurrence of her trustee, unless she is specially restrained bythe instrument underwhich she acquires her separate estate. There are nearly twenty cases decided by Lord Hardwicke and Lord Thurlow, containing the principle I have stated, and which I shall not weary the patience of the court by citing. The case of Sockett v. Wray, 4 Br. Ch. C. 483, before Sir R. P. Arden, Master of the Rolls, in 1793, was the first case to break the contin- uity of decisions. This formed a precedent for the case of Hyde V. Price, 3 Vesey, jun., 437, then followed the cases of Whistler v. Newman, 4 Vesey, jun., 129, and Mores v. Huish, 5 Vesey, jun., 692, decided by Lord Loughborough. In Whistler v. Newman, Lord Loughborough admitted, that the cases had gone the length, and that he was bound by them, that if a married woman has sepa- rate property, she may dispose of it, and the trustees were bound to follow her disposition. In Mores v. Huish, his lordship distin- guished it from the preceding cases. These cases are succeeded by many others, after Lord Eldon became chancellor, in which he restored the law to its first and ancient principle. In the case of Parkes v. White, 11 Vesey, jun. 209, he reviewed all the cases, and strongly intimated, that the decision in Whistler v. Newman was in opposition to all the authorities for a century. He laid down the rule to be, that a married woman, having an estate to ber separate use, is capable of disposing of it, provided the tran- saction is free from fraud, and no unfair advantage is taken of her. The mistake into which I think the chancellor has fallen, con- sists in considering Mrs. Jaques restrained from disposing of her estate in any other way than that mentioned in the deed of settle- ment. The cases, in my apprehension, are clearly opposed to this distinction; and I am entirely satisfied, that the established rule in equity is, that when a feme covert, having separate property) enters into an agreement, and sufficiently indicates her intention to affect by it her separate estate, when there it no fraud or un- fair advantage taken of her, a court of equity will apply it to the satisfaction of such an engagement. This was the principle adopted by Lord Hardwicke, in Grisby v. Cox, i Vesey, senr. 517, and the same doctrine prevailed in Pyhns v. Smith, Ellis v. Atkin- son, and in Newman v. Cariony, 3 Br. Ch. C. 340, 346. In Pybus V. Smith, Lord Thurlow observed, if a feme covert sees what she is about, the court allowed of the alienation of her separate prop- erty. The same principle was adopted in Fettiplace v. Gorges, MARRIAGE MODIFIED. 237 3 Br. Ch. C. 8. i Vesey, jun. 46, and in Wagstaif v. Smith, 9 Vesey, jun., 520. It seems to me, that the power reserved to Mrs. Jaques, by the deed, has been misconceived ; I understand it, that during her Hfe, her estate is to be at her absolute disposal, with a further power to grant and devise it by her last will and testa- ment ; but if the power of disposition was specifically pointed out, it would not preclude the adoption of any other mode of disposi- tion, unless there were negative words restraining the exercise of the power, but in the very mode pointed out. Chancellor Dessaussure, in 3 Equity Reports of cases deter- mined in South Carolina, p. 427., has, with great ability, examined all the cases upon this subject, and arrived at the conclusion I have formed. It is true, that his opinion, and that of Chancellor Thompson, who concurred with him, were overruled by the three other chancellors; but it was upon the express ground, that the question was res nova in that state, and that they were not bound by decisions in England in consequence of a colonial statute of 1 72 1. And those who differed in opinion from Chancellor Des- saussure, admit that his opinion was in^ conformity with the Eng-- lish decisions. This is the first case in which the power of a mafried woman having a separate preperty, to dispose of it at her will and pleas- ure, when not expressly restrained in the mode of exercising that will, has arisen in our courts. 1 confess that my partialities in favor of marriage settlements are not so strong, as to induce any desire to see the law altered. Generally speaking, the rules of the common law, which give to the husband all the wife's personal property, and the rents and profits of her real estate during cover- ture, are better calculated, in my judgment, to secure domestic tranquillity and happiness, than settlements securing to the wife a property separate from and independent of the control of the husband. An improvident and dissipated husband may squan- der his wife's property, and reduce both of them to penury and distress. On the other hand, the possession by the wife of prop- erty, independent of and beyond the control of the husband, would be likely to produce perpetual feuds and contention. Marriage is a union of persons and interests, pro bono et malo, and the an- cient provisions of the common law show forth, in our own coun- try, decisive proofs of its benig^n and salutary influence. I have, all along, intended to be understood, that the disposition by the wife must be free, neither the result of flattery, nor of force, or harsh and cruel treatment ; and in the present case there is no evi- 238 LAW OF HUSBAND AND WIFE. dence, that Jaques treated his wife with unkindness, or employed any censurable means to induce her to bestow her bounty on him ; on the contrary, the evidence is that he uniformly treated her with kindness and affection. It necessarily results from the power which I suppose Mrs. Jaques to have had over her property, that she might give it away, x-i^ithout any formal act, in the same manner as though she had been sole; and her agreement that the family expenses were to be borne out of her estate, especially when executed by her, was a valid act. She was well situated as regards property, while her husband was in quite moderate circumstances. She chose, after the marriage, to maintain her former equipage, and the husband acquiesced in her wishes. It would be extremely hard and un- just, to throw upon him the charge of her establishment, when it is clear that she meant to defray the expense of it herself. My opinion, accordingly, is, that the agreement is valid, and that the husband is not only not to be charged with any sums of money expended for the maintenance of the family, but that he is to be al- lowed for all advances for that object; and also for moneys ad- vanced for necessary reparations to her estate. The chief justice then examined the other points in the case; but as no legal principle was involved in the discussion of them, it is unnecessary to state the remainder of his observations. Platt, J. — The facts in this cause are so multifarious and complicated, and the field opened for legal research is so exten- sive, that I approach the investigation with great embarrassment and diffidence. As to the first question, I concur in the opinion of his honor, the chancellor, that the deed of marriage-settlement must be deemed valid and binding; and having come to that conclusion, for the reasons assigned by him, it is unnecessary here to repeat them. The important question presented in this cause, is, as to the construction and eifect of the marriage settlement. On this point, after much labor and reflection, I am compelled, notwithstanding my unfeigned and habitual deference for his great learning and distinguished talents, to dissent from the opinion of his honor, the chancellor. He admits the rule, "that a married woman is con- sidered in equity, with respect to her separate property, as a feme sole; and is held to have an absolute dominion or power of dispo- sition over it, unless her power of disposition be restrained by the deed or will under which she became entitled to it." And as to MARRIAGE MODIFIED. 239 the rule of construction, he also admits, that "the weight of book- authority, and especially of the writers who have treated' on this branch of the law, is against his conclusion ;" and that "they seem to hold, that tliere must be an express restriction upon alienation, either absolutely, or in some other mode than the one mentioned, or the wife will not be bound." The chancellor says: "Such strong aversion to the wife's independent enjoyment of her sepa- rate estate, manifested so early in the history of the cases, may have given a permanent tone andcolorto the doctrine of the cout-t." With great respect, I ask, in reply. May it not rather be said, that the "tone and color" of the modern decisions are accommodated to the excessive refinements of society, and the artificial innovations, in regard to the rights and duties of good old English matrimony? In the language of Sir Wm. Blackstone, "By marriage, the hus- band and wife are one person in law : that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the hus- band ; under whose wmg, protection and cover she performs every thing." I confess, that I love and venerate the primeval notion of that mystical and hallowed union of husband and wife; when "they twain became one flesh ;" when they "forsook father and mother, and clave to each other" with unreserved confidence.' Marriage, in that old fashioned sense, is the purest source of do- mestic joys, and the firm foundation of social order. I bow to the rule, as I find it established: but I lament the complicated and artificial anomalies in the relations of domestic Iffe, which have grown, and are still growing, out of the practice of marriage-settlements. They give to the wife the amphibious character of a feme covert and a feme sole. I view it as an adul- eration of that holy union : as a divorce, pro tanto, of the marri- age contract. A wife, in the "independent enjoyment of her separate estate," armed with distrust of her husband, and shutting out his affections and confidence, by refusing to give her own in mutual exchange, is an object of compassion and disgust. Legal chastity cannot be denied to her ; but there is danger, that the sa- cred institution of marriage may degenerate into mere form. It is sometimes, in practice, little more than legalized prostitution ; and the parties seem to have no higher objects than sexual intercourse, and the sanction of legitimacy for their offspring. If, in the rapid progress of refinement in civilization, it shall be thought expedient to go one step further, and to allow the wife, by ante-nuptial con- tract, to stipulate for an exemption from personal control over 240 LAW OF HUSBAND AND WIFE. her by the husband, then the quasi divorce would be extended one degree further, so as to confer on her the independent enjoy- ment of the rights and privileges of a kept mistress. But she would have little claim, indeed, to the endearing appellation and character of a wife. The new rule, introduced by Sir R. P. Arden and Lord Loughborough, and which has been adopted by his honer the chancellor in this case, will, I think, tend to sever, in some degree, the marriage tmion; because it not only renders the wife inde- pendent of her husband, as to her fortune, but bars him from a participation of it, by new and increased impediments; as if he were presumed to be her worst enemy. Now, if matrimony is not safe and desirable, without these trammels, and fences, and reservations, and restrictions, I say, marry not at all ! The an- cient rule was adapted to the state of English manners in the days of Lord Macclesfield, and accords best with the general simplicity of society among us at this day. I know that particular cases often occur, when such restraints would be salutary ; but, as a gen- eral rule, their operation would be unfavorable to connubial hap- piness. The same benign policy, which forbids divorces a vin- culo, also forbids the extension of a rule, which impairs the union, and lessens the attributes of holy matrimony. It is better that confidence between husband and wife should sometimes be abused, than that it should not exist in that relation. We often see acts of tyranny and cruelty exercised by the husband towards the person of the wife, of which the law takes no cognizance ; and yet no man of wisdom and reflection can doubt the propriety of the rule, which gives to the husband the control and custody of the wife. It is the price which female wants and weakness must must pay for their supply and protection. That a woman should con- template her intended husband as likely to become her enemy and despoiler, and should guard herself against him as a swindler and a robber, and then admit to her embraces, presents a sombre and disgusting picture of matrimony. Marriage justly implies a union of hearts and of interests; and the modification «of that re- lation, which excessive refinements have introduced, is a fungous excrescence which this court connot lop off ; but we can and ought to prevent its growth. Of the same character was the new doctrine of Lord Mans- field, and his associates, in the case of Corbett v. Poelnits, i T. R. 5, in which it was decided, that if husband and wife choose to separate, and the husband allows the wife a separate mainten- MARRIAGE MODIFIED. 241 ance, she may contract and be sued, as though she were unmar- ried, and may be held to bail and imprisoned on a ca. sa. without her husband. That innovation was made on the ground that "as the times alter, new customs and new manners arise, which re- quire new exceptions, and a different application of the general rule. But it was soon discovered that, instead of waiting to fol- low, the Court of K. B., on that occasion, outran the customs and manners of altered times; and in Marshall v. Rutton (8 T. R. 545) and Wardell v. Gooch, (7 East, 582), Lord Kenyon and Lord Ellenborough restored the ancient rule. I would not be understood as censuring, indiscriminately, the precaution of placing the property of the wife in the hands of trustees, to shield it from the previous creditors of the hus- band. It is undoubtedly often just and commendable for parents to make family settlements, so that daughters may be protected from the effects of prodigality, want, and oppression. But all this may be consistent with the idea of a community of interest between husband and wife; so far, at least, that she may permit him to participate in the enjoyment of whatever is her own. It must, however, be admitted that, by our law, a woman may, by mar- riage settlement, so transfer her estate, as to divest herself irre- vocably of all right of future control or disposition of it. So, also, she may limit and restrict herself, as to the precise mode of dis- posing of her separate property. But this is against common marital rights; it is generally unfavorable to conjugal happiness, and is inconsistent with public policy. I, therefore, incline to the rule of equity as administered by Lord Macclesfield, Lord Talbot, Lord Hardwicke, Lord Thurlow, and Sir William Grant; and as it was very ably, though unsuccessfully, vindicated by the learned and venerable Chancellor Dessaussure, in the case of Ewing .v. Smith (3 Equ. Rep. S. Carolina, 447), which rule I understand to be substantially this : that a feme covert, having a separate es- tate, is to be regarded as a feme sole, as to her right of contracting for and disposing of it. The jus disponendi is incident to her sep- arate property, and follows, of course, by implication. She may give it to whom she pleases, or charge it with the debts of her husband, provided no undue influence be exerted over her; and her disposition of it will be sanctioned and enforced by a court of equity, without the assent of her trustee, unless that assent be expressly made necessary by the instrument creating the trust. And the specification of any particular mode of exercising her disposing power, does not deprive her of any other mode of using 242 LAW OP HUSBAND AND WIFE. that right, not expressly, or by necessary construction, negatived in the devise or deed of settlement. Powell v. Hankey (2 Peere Wms. 82), Squire v. Dean (4 Bro. 326), Smith v. Camelford (2 Ves. jun. 698), Brodie v. Barry (2 Vesey and Beam, 36), Dal- biac V. Dalbiac (16 Vesey, 126), Peacock v. Monk, (2 Vesey 190), Norton v. Turvill (2 P. Wms., 144), Ridout v. Leivis (i Atk. 269), Stanford v. Marshall (2 Atk. 69), y4//^« v. Papworth (i Ves. 163), Penne v. Peacock (Cas. temp. Talbot, 41), Grigby V...C0X (i Ves., 517), Paivlet v. Delaval (2 Ves., 663), Newman V. Cartony (3 Bro., 347), Hulme v. Tenant (i Bro., 16), Pybus V. Smith (3 Bro., 340), Heatly v. Thomas (15 Ves., 596), Fefff- ^Zace V. Gorges (3 Bro., 8). The ante-nuptial agreement qualifies the marriage contract, so that the wife retains all the rights which she could have exer- cised over the property as a fem^ joZe; except so far as she has, in express terms, incapacitated herself by that instrument. The trustee is the mere depository of her title and estate, in order that her husband may not come to the possession or enjoyment of it without her consent ; and that it may not be liable to the claims of his creditors, unless she chooses so to apply it. I admit that she may give larger powers to her trustee, so as to lock up the estate, or restrain her own disposing power over it, if the deed necessarily imports such intention. But, as was said by Lord Macclelsfield, in Pozvell v. Hankey (2 P. Wms., 82), "it is against common right, that the wife should have a separate property (the husband and wife being in law but one person), so all reasonable intendments and presumptions are to be admit- ted against the wife." In that case, the marriage settlement bore a strong resemblance to the one now before us ; and after the mar- riage, the wife permitted her husband to receive the interest of all her securities, without any complaint to the debtors who paid the moneys, or to her trustee ; and the lord chancellor, therefore, "intended that the husband received the interest by her consent, as a gift from her; and that the husband, acting on that presump- tion, might have lived in a more plentiful manner; the comfort whereof the wife must have shared in." An account against the husband's executors for those moneys was, therefore, refused. In Peacock v. Monk (2 Vesey, 290) Lord Hardwicke said, "Where there is an agreement between the husband and wife be- fore marriage, that the wife shall have personal property to her separate use, she may dispose of it by an act in her life, or will : she may do it by either, though nothing is said of the manner of MARRIAGE MODIFIED. 243 disposing of it." So, in the case of Grigby v. Cox (i Vesey, 517), Lord Hardwicke stated- the rule to be, "that where any thing is SjCttled to the wife's separate use, she is considered as a feme sole, and may appoint in what manner she pleases ; and that her trus- tees need not join, unless made necessary by the instrument ;" and that "the wife might make an appointment in favor of her hus- band, if fairly procured, without improper influence." In Hulme v. Tenant (i Bro. 16), and in Pybus v. Smith (3 Bro., 340), Lord Thurlow followed the same old rule, yielding, though with reluctance, to the uniform current of authorities. In Neatly v. Thomas (15 Vesey, 595), Sir William Grant adhered to the ancient rule. But in Socket v. Wray (4 Bro., 383) and in Hyde v. Price (3 Vesey, 437), Sir R. P. Arden resisted the hith- erto unbroken current of decisions; and in Milnes v. Bush (2 Vesey, jun., 488), Whistler v. Newman (4 Vesey, 129), and Mores v. Huish (5 Vesey, 692), Lord Loughborough followed in this new track. In Sperling v. Rochfort (8 Vesey, 164), Rich V. Cockrell (9 Vesey, 369), and Jones v. Harris (9 Vesey, 497), Lord Eldon vibrates, and falters, and doubts, till, in the last case, he comes to the hesitating avowal, that it was "an open question, and one doubtful, and deserving of a very full review, whether the separate property of a feme covert might be charged in a dif- ferent form from that prescribed by the instrument." In the sub- sequent case of Parkes v. White (11 Vesey, 209), Lord Eldon said his mind was in great distraction on this subject; but he ad- mitted that Lord Thurlow, "in his decisions on this principle, had followed his predecessors as far back as the doctrine can be traced;" and he concluded by saying, "If it be asserted that this court has now a right to refuse to follow it, / am not bold enough to act upon that position." The ante-nuptial agreement, or deed of settlement in this case, recites that the intended husband "has agreed not to inter- meddle with, or have any right, title or interest, either in law or equity, to any part of the rents, issues, profits or proceeds of her property, real or personal ; but it is to continue, remain, and be to her, or to such uses as are in this deed of settlement expressed." The deed then conveys all her estate, real and personal, to Henry Cruger, "in trust for her; and upon her marriage, to the use of such persons and uses, and subject to such provisions as she, with the concurrence of her husband, should by deed, or by will, with- out his consent, give, limit, direct and appoint. In default of such directions, &c., then in trust, to permit her to hold and enjoy the 244 LAW OF HUSBAND AND "WIPE. same, and receive and take the rents, issues and profits; and that her receipts shall alone be sufficient discharges from time to time ; to the end, that the same shall not be subject to the control, debts, intermeddlings or engagements of her husband, but shall be to lier only use, benefit and disposal." Considering it as a question of construction and intention merely independent of the adjudged cases, I am of opinion, that the fair and natural import of the deed is, that she intended so to modify the marriage contract, as to retain the entire right of property in all her estate, real and per- gonal, through the intervention of her trustee; and that she jshould, also, retain the sole, entire, and exclusive right of using and disposing of it, as if she were to remain a feme sole. We must set out in the argument, with the consideration, that she alone was absolute owner of all the property, and had a per- fect right to dispose of it as she pleased. And the question then is, how far, if at all, did she divest herself of the estate, or of her disposing power over it, by the deed of settlement ? In my judg- ment, it would require plain and express words to authorize the conclusion, that she meant to lock up her property, or to tie her own hands in the use of it, or to restrict herself in the mode of disposing of it. The specification that she might dispose of it by deed, or by will, affords no necessary implication, that she might not do it in any other mode common to every proprietor. The specification, "by deed," was probably made with a view to her real estate only, and may be deemed to have been inserted at the instance of the husband; because it contains, i>erhaps, an im- plied stipulation, that she should not execute a deed without "his concurrence." And the specification,' "'63; will," was inserted to re- move all doubt as to her right to dispose of her property in that mode, "without her husband's consent." If the terms of the in- strument imposed any restriction on her disposing power it was in favor of her husband, merely, to wit, that she should do it by deed, with the concurrence of her husband; but if it be considered as a stipulation in his favor only, then it follows, that he may waive it, at his pleasure ; which he has done. That she meant no more than to deprive her husband of his marital rights, in regard to her property, I think is evident from the very appropriate words in which she has expressly declared her intention; to wit, "to the end, that the same (her property) should not be subject to the control, debts, intermeddlings, or en- gagements of her husband ; but should be to her only use, benefit, and disposal." She was a widow, without children, and at a time MARRIAGE MODIFIED. 245 of life which forbade the prospect of her having any; living in a fashionable style, with a handsome fortune, and knowing that her intended husband had little or no property; and it would, indeed, have been very extraordinary, if she had designed to limit herself in the use and enjoyment, or in the mode of disposing of her own property ; and, least of all, ought we to presume, that she meant to restrict herself, as to the measure or the manner of her bounty, towards the man who was to become the partner of her joys and her sorrows. In plain truth, she meant that he should be put upon his good behavior ; and that her liberality and confidence should be regulated by his merits as a husband. A'ly conclusion, therefore, is, that the jus disponendi, retained by Mrs. Jaques over her separate estate, by virtue of the deed of settlement, was absolute and entire; and that she had a right, and was competent, not only to dispose of that property for her own use and pleasure, but to supply the wants of her husband from that fund, and to give him such parts of it as she chose, in the same manner as she might have done, if he had not been her husband. With this difference only, that, as between husband and wife, courts will scrutinize the transaction with a jealous eye, in order to protect the wife against undue influence. And here, with great deference to his honor the chancellor, and to Sir R. P. Arden, Lord Loughborough, and Lord Eldon, I cannot forbear to remark, that they appear to lay more stress on the mode of ap- pointment by the wife, than a due regard to her security demands. It is difficult for me to perceive why the undue influence of the husband may not be as easily and as successfully exerted, by in- ducing the wife to sign a deed, as in procuring parol gifts or ap- propriations by her. For it must be remembered, that such a deed of appointment by a feme covert of her separate estate, re- quires no judicial examination as to her freedom of will. From the evidence as to the life and conduct of the appellant, John D. Jaques, in the character of a husband, I think it due to him to say, that he sustained that character in a creditable man- ner. His conduct towards his wife appears to have been kind and faithful ; and, in the charge and management of her property, so far as it naturally devolved upon him as her agent, he conducted her affairs with prudence and discretion. His neighbors and domestics have been called to disclose his most unguarded words and actions, in relation to his wife and her property ; and few men, indeed, could bear such an inquisition as he has been subjected to, with less disparagement. From the charge of prodigality, he 246 LAW OP HUSBAND AND WIFE. i stands perfectly acquitted; the allegation of embezzlement is not proved, and I see not the slightest evidence of coercion, restraint, or undue influence by him over the disposing power of his wife. The case shows that she lived after the marriage as she had been accustomed to do before, in a style corresponding to her fortune; that little more than the income of her estate was exhausted, by all her expenses and liberality. She died without issue, and de- vised one-third of her estate to her husband, one-third to distant relatives, and one-third to her church. This final distribution of her bounty, while it evinces her gratitude and affection for her husband, also shows the independent exercise of her disposing power. The important fact, that she retained the settlement deed in her own possession, without ever complaining to her trustee, or claiming any protection from him under it, although he con- stantly resided in her neighborhood, is strong evidence of the pro- priety of her husband's conduct, and of her assent to his acts in relation to her property. She seems to have treated the deed of settlement as a weapon or a shield, which she kept in reserve, but which, happily, she never found occasion to use. I am, accordingly, of opinion that there is no just distinction between the income oi her estate, or the interest on her securities, and the estate or principal from which that income and interest arose, in regard to her power of disposal. Being mistress of her own fortune, she had as perfect a right to give it to her husband, or to the church, by a voluntary act in her lifetime, as to do it by her will. As to the mode, she was subject to the general law for transferring property. In regard to that part of the decree which relates to the lots of ground bound by the mortgage and judgment which the wife held against Christian M. Heyl, the answer of the appellant avers, that those securities were placed in his hands by his wife, with full knowledge of the prior encumbrances which had been pur- chased up by him ; that she desired him to do the best he could, and to apply the proceeds, both principal and interest, towards family expenses, and the repairs of her estate; that, accordingly, upon the foreclosure and sale, he purchased in the mortgaged premises, and took a deed to himself, discounting the price from the sum due on the securities; and that he advanced his own money to an equal amount, in lieu thereof, toward the support of the family, pursuant to his wife's directions. Robert Jaques, a witness for the appellant, John D. Jaques, confirms that allegation ; and he further testifies, that during the MARRIAGE MODIFIED. 247 last illness of Mrs. Jaques, he was requested by her to draw a deed of trust, disposing of her real estate, "on which occasion she told him that the Heyl property, meaning the lots covered by the mortgage and judgment aforesaid, and which had been jjought in by John D. Jaques under the foreclosure, and under the arrange- ment made on that occasion, belonged to her husband, into whose hands she had put all her claims' against Heyl ; and that the pro- ceeds thereof had been expended by him in support of her family, and in expenses relating to her property ; and that she had nothing to do with the aforesaid property of said Heyl." Mar- garet Stuart's testimony confirms that of Robert Jaques, as to all those facts ; and these admissions of Mrs. Jaques, of the title of her husband to those lots, and that he had accounted to her sat- isfaction for the price of them, is evidence that she had author- ized and ratified his acts, and rebuts the equity now claimed as to those lots. I think the evidence is insufficient to show that the renewal of the lease for the lot in Murray street, in the name of John D. Jaques, was procured by the money of his wife. The fact is denied, and the proof rests on vague surmise. But if it were so, then the acknowledgments of Mrs; Jaques are evidence that he had accounted to her satisfaction. The subsequent sale of that leasehold estate by John D. to Robert Jaques, therefore, stands unimpeached, and subject to no trust. There is no doubt of the rule, that a trustee, without the pre- vious consent of his cestui que trust, cannot speculate for his own benefit, by purchasing with the trust funds. Such purchases enure to the benefit of the cestui que trust. But this means no more than that the cestui que trust may, at his election, either afUrm such speculating purchase, and charge his trustee- with the money so expended, or he may insist on holding the land for his own benefit, and credit his trustee for the price paid. A view of the whole evidence in this case, I think, warrants the conclusion, either that Mrs. Jaques, when she placed those securities in the hands of her husband for collection, agreed that he might purchase in the mortgaged lots for his own benefit, ac- counting to her in family expenses for the price; or that, subse- quent to the purchase by the husband, as her agent, and with a full knowledge of the transaction, she elected to affirm the sale to her husband, for his own benefit, and thereby waived her claim to the lots as cestui que trust. Upon either supposition, the equity now claimed in regard to those lots is rebutted. 248 LAW OF HUSBAND AND WIFE. If a married woman be permitted tender a settlement to act as a feme sole, in regard to her property, it is perfectly reasonable that her acts, declarations and confessions, freely made, should be allowed to have the same effect in regard to the rights and interests of others, as if she were in reality a feme sole. Here it is. proved by two witnesses, that Mrs. Jaques delivered the bond and mortgage, &c., to her husband, and told him to do the best he could with them, and to apply the avails towards the support of the family, and in repairs and improvements of her estate ; and that she afterwards pointedly acknowledged that he had fore- closed the mortgage, and had purchased in the lots for himself; and that he had accounted to her for the avails of those securities in a satisfactory manner; that the lots belonged to her husband, and she had no claim to them. Now, suppose they had not been husband and wife, and the same facts had occurred between them, could there be a doubt that she, and all persons claiming under her, would be barred of any claim to those lots ? Several witnesses swear that she repeatedly declared that her household establishment, and all her family expenses, were supported and paid out of her estate, according to the mutual un- derstanding between herself and her husband previous to their marriage. And this arrangement, so probable and so reasonable, accords with all her subsequent life and conduct. It is true, that such an agreement was revocable at her pleasure ; and if she had insisted upon her strict legal rights, her husband was bound to maintain her, at his own expense, but certainly not in such a style . as she chose, and had been accustomed to. His honor the chancellor says, "The defendant ought to be precluded by his deed of settlement, from claiming any part of his wife's estate, founded on any parol agreement or gift of the wife, and he sets up no other;" and "to allow the husband to set up contemporary, or subsequent parol agreements, confessions, or gifts, would be allowing him to contradict and defeat the settle- ment." This was a proper inference and deduction from the rule cf equity and principle of construction adopted by the chancellor; to wit, that "her disposition of the property was to be by deed, in concurrence with her husband, or by will without it; and that her receipts were to be alone suMcient discharges, from time to time, of her title to the rents, issues, and profits." But con- strained, as I am, to differ in judgment from his honor the chan- cellor, in that cardinal principle and rule of construction, the nat- ural consequences of his position on that point do not stand in MARRIAGE MODIFIED. 24& my Vi^ay. If, as I contend, the wife had an unlimited disposing power over her separate estate, with the single qualification that, perhaps, she could not convey her interest in her lands without the concurrence of her husband, then it follows that there is no repugnance between her "parol agreements, confessions, or gifts," and the deed of settlement ; nor do they "contradict or de- feat" that settlement. The appellants claim under her as a feme- sole; and all the admissions, parol agreements, and gifts, which she was competent to make, are obligatory upon therrt. She had power to consent, by parol, that her husband should not only re ceive her income, but also collect her debts ; and when the moneys were in his hands, she had an equal right to direct, by parol, the application of them to the support of the family; to the payment cf debts due from her; or she might, in the same manner, give the money to him or to whom she pleased ; and after such appli- cation was actually made, those acts were irrevocably binding on her, and all claiming under her. She had as perfect a right to give money to her husband, as to give it "for building a church at Rah- way." Such gifts were perfected by delivery only; and her ad- mission that she made such gifts or appropriations, is as valid in one case as in the other. My opinion, therefore, is, that the decree ought to be re- versed. This being the opinion of a majority of the court (Austin,. Noyes, and Swart, Senators, dissenting), it was thereupon "or- dered, adjudged and decreed that the decretal order made by his honor the chancellor, in this cause, on the 27th day of June, 1815, be reversed, so far as the same declares and decrees that the free- hold estate, situate adjoining to Warren street in the city of New York, mentioned in the pleadings in this cause, the title to which stands in the name of the said 'John T. Jaques, which title he acquired from a master in chancery, in consequence of a sale thereof under a decretal order of the said Court of Chancery,, founded on a mortgage thereof, given by one Christian M. Heyl, in the pleadings for that purpose mentioned ; and, also, the lease- hold estate situate adjoining Murray street, in the city of New York, the title to which stands in the name of the said Robert Jaques, and which title was acquired from the said John D. Jaques, by assignment, as in the pleadings mentioned, respective- ly, of right belonged to Mary, late wife of the said John D. Jaques, at her death ; and that the said last-mentioned estates of right be- long and are distributable, according to a certain deed in the 250 LAW OF HUSBAND AND WIPE. pleadings mentioned, to the said Robert Jaques, on ,the •22d of September, 1812, and the, last will and testament of the said Mary; and that, for the purpose of such distribution of the aforesaid estates respectively among the respondents and the appellant, John D. Jaques, according to their respective rights, under the said deed, to the said Robert Jaques, of the I2th of September, 1812, and the said last will and testament of the said Mary, late the wife of the said John D. Jaques, the moneys arising from the sale thereof, under and by virtue of the said decretal order, and depos- ited with the assistant register of the said Court of Chancery, should remain with him, to abide the further order of the said Court of Chancery relating thereto: And this court doth declare and adjudge that the said moneys of right belong to the said John D. Jaques, and do decree and order that the same be forthwith paid to him as his own proper moneys : And it is further decreed, declared and adjudged that the said John D. Jaqups is not, and ought not to be, accountable to the ^executors of the said Mary Jaques, for any part of the debts which were due, by the said Christian M. Heyl, to the said Mary, as in the pleadings men- tioned: And it is further ordered, adjudged and decreed that the said decretal order be reversed, so far as the same orders and de- crees the said John D. Jaques to account with the respondents for the rents and profits of the said real estate, adjoining Warren street, from the ist of March, 1810, the time when he took a title for the same from a master in chancery, as mentionecji in the plead- ings in this cause ; And so far as the same orders and decrees the said John D. Jaques and Robert Jaques to account, respectively, for the rents and profits of the said leasehold estate situate ad- joining Murray street, standing in the name of the defendant Robert Jaques, from the day last-mentioned, according to the time they shall respectively have been in possession or in the re- ceipt of the rents thereof ; and also so far as the said decretal order orders and decrees that in relation to the said freehold and lease- hold estates adjoining Warren street and Murray street, the said John D. Jaques and Robert Jaques should be allowed, respectively, for all allowances by them made thereon, which are of a nature to be permanently useful, or increase the value thereof; and also so far as the said decretal order decrees and orders that the said John D. Jaques shall not have any allowance for expenditures in the maintenance of the said Mary, her family or equipage, during the time she was the wife of the said John D. Jaques ; and also so far as the same directs, that in taking the account therein directed, MARRIAGE MODIFIED. 251 of the personal estate of the said Mary, the said John D. Jaques shall not be charged with sums received as interest or dividends arising from the said Mary's personal estate, during her life, un- less where the said John D. Jaques shall show himself entitled thereto, as hereinafter directed and decreed. But that in taking the said account hereafter to be taken, the said John D. Jaques be charged with all the personal estate, as well as principal sums as interest money and dividends received by him from her personal estate. And it is further ordered, adjudged and decreed that the decretal order made in this cause, by the said Court of Chancery, on the 5th day of October, 1815, be reversed, in all its parts and directions, except so far as the same orders, adjudges and decrees that the said leasehold premises adjoining Murray street, in the city of New York, should not be sold as in the first-mentioned decretal order directed, which said so excepted direction is hereby affirmed. And it is further ordered, adjudged and decreed that the said first-mentioned decretal order of the 27th day of June, in the year 1815, be varied and modified, so far as that the said John D. Jaques may be obliged to account for the rents and profits of the real estate situate at the corner of Broadway and Reed street, only according to the value of the same to him, as a personal residence, under the circumstances, that he, and the said Robert Jaques, were restrained by an injimction in this cause from letting the same ; and that the same must have remained un- occupied, if he had not occupied the same ; And that, in taking the account of the personal estate of the said Mary, the said John D. Jaques shall not be charged with the moneys received by him for the leasehold estate, in Warren street, sold under the mortgage of the said Christian M. Heyl, and purchased by or for William Wilmerding, in the pleadings in this cause mentioned; and the said John D. Jaques shall be allowed for all moneys over and above the said debts, which were due from the said Christian M. Heyl, to the said Mary, and expended by them at the desire of the said Mary, or for necessary reparations to any part of her estate, or for the support and maintenance of the said Mary, her family establishment, or equipage, during the time she was the wife of the said John D. Jaques ; and also, for all moneys which, from the facts or circumstances connected with the same, it shall appear, and be considered, by the said Court of Chancery, that the said Mary intended as a donation from her to him, the said "John D. Jaques. And it ts further ordered, adjudged and decreed that the 252 LAW OP HUSBAND AND WIPE. said decretal order of the 27th day of June, 1815, be affirmed, as to all matters not herein and hereby reversed or varied : And it is further ordered, adjudged and decreed that the accounts hereto- fore taken in this cause be rectified and varied, both as to the principal and interest, conformably to this decree; and that, in all other respects, the same stand confirmed ; but that, for so vary- ing and rectifying the said accounts, the parties in this cause shall respectively be at liberty to charge and discharge, as is usual in. taking of accounts before a master ; and that the master to whom the accounts shall be referred, shall have the powers for that pur- pose specified and set forth in the said first-mentioned decretal order of the 27th day of June, 1815. And it is further ordered, adjudged and decreed that the final decree made by the Court of Chancery, on the 15th day of June, 1818, be reversed, and that the question of costs in the said Court of Chancery, and all further directions as to the final decree in this cause, be referred back to the said Court of Chancery. And it is further ordered, adjudged and decreed that this cause be remitted to the Court of Chancery, to the end that the said court may act therein as may be just and proper. Decree of reversal accordingly. 2. BY MARRIED WOMEN'S ACTS. BURDENO V. AMPERSE, 14 MICH. 90. (1866). Error to Wayne Circuit. This was an action of trespass quare clausum fregit, com- menced before a justice of the peace. The defendant gave notice under the statute of title to real estate, and the cause was certified to the circuit court. On the trial, the defendant offered in evi- dence a deed of the premises from the plaintiff 'to Victoria Bur- deno, his wife, to the admission of which the plaintiff objected on account of the relation between the parties. The court sus- tained the objection, and the defendant excepted. Ward & Palmer, for plaintiff in error. Lamed & Hebden, and Wm. Gray, for defendant in error. Campbell, J. • Burdeno sued plaintiffs in error in trespass for alleged wrongful acts upon his freehold, being land covered by water. The suit was for treble damages to Burdeno, as proprietor of the MARRIAGE MODIFIED. 253 land, the statutory action not lying for mere possession : Achey v. Hull, 7 Mich., 423. Defendants offered to show that Burdeno had, in September, 1861, conveyed the property by deed to his wife, Victoria Burdeno. This deed was objected to as invaUd, because of the relation of the parties; and the court below sus- tained the objection, and rejected the evidence. The question is presented, therefore, whether, as our laws now stand, a deed can be made by a husband to his wife. To de- termine this question, we must see how their relations were gov- •erned, in this respect, before our present system was introduced'. The effect of marriage was to produce what is called in the law books unity of person; the husband and wife being but one person in the law: Co. Litt, 112, a; i Bl. Com., 442. The wife, by her coverture, ceased to have control of her actions or her property, which became subject to the control of her husband, who alone was entitled, during the marriage, to enjoy the pdsses- ;sion of her lands, and who became owner of her goods and might sue for her demands. The wife could neither possess nor man- age property in her own right, could make no contract of a per- sonal nature which would bind her, and could bring no suit in her own name. In short, she lost entirely all the legal incidents at- taching to a person acting in her own right. The husband alone remained sui jiLris, as fully as before marriage. It followed from this legal merger by coverture into a single personality, that the husband could make no grant to the wife, and the wife could make none to the husband. And, furthermore, a grant to her by her husband, of a freehold, would be, in effect, a grant to take effect in future (the husband retaining possession for life, and such a grant was unlawful because a freehold could ■only pass hy "livery of seizin, which must operate either imme- diately or not at all. It would, therefore," continues Blackstone, ■"be contradictory, if an estate, which is not to commence till here- after, could be granted by a conveyance which imports an im- mediate possession :" 2 Bl. Com., 165. But a husband might make .a devise to his wife, "for that such devise taketh no effect but after the death of the devisor:" Littleton, § 168; Co. Litt., 112 a, b. The same incidents of coverture which made the husband sole posses- sor of his wife's lands, led to the rule which made estates in their joint names differ from joint tenancies proper, and regarded the title, not as held by moieties, but as an entirety : 2 Bl. Com., 182 ; Co. Litt, 187, a. Whether the common law rule preventing husband and wife 254 LAW OP HUSBAND AND WIFE. from making grants to each other is a rule springing from, and inseparably attached to, the relation of marriage, or whether it is an incident to the wife's disability to control property in her own right, must guide us somewhat in determining the effect of our enabling statutes. There can be no doubt that there are incidents of marriage independent of all considerations of prop- erty. The common law writers never attempted to classify them, and we must get such light as we can from examples and anal- ogies. It is safe, however, to assume that no act can be absolutely inconsistent with the marriage relation, if it has received the sanction of either law or equity. We must, therefore, see whether the disabilities which applied at common law, in cases like the one before us, have been regarded as universal and personal dis- qualifications. Upon this we have an abundance of authority. There were local customs whereby a wife might take by immediate conveyance from her husband — as, for example, at York: Fitzh. Ab. Prescription, 6i ; Brown's Ab. Custom, 56 (cited Tomlyn Law Die, Baron and Feme). The queen consort may sue and be sued, alone; may take grants from her husband, as well as from strangers ; may take, as well as receive grants, and may covenant: Com. Dig. Roy, F. i. A husband could con- vey to the use of his wife, under the statute of uses, whereby the use vested in her directly as a legal estate, without the action of the feoffee: Com. Dig. Baron and Feme, D. i, citing Co. Litt. 112, a. And he might, under the same statute, covenant with a third person to stand seized to the use of his wife: Id. It appears, therefore, that the law did not prohibit a husband for accomplishing for his wife the precise thing which he would have accomplished by a direct conveyance ; and it would seem, from this, that the rule was one of technicality, and not of sub- stance. But there are further illustrations which will throw light upon this subject. When husband and wife were dealing, not in their own right, but in a representative character, or what i? termed technically, in auter droit, either might sell and convey to the other, as to a stranger: Co. Litt., 112, a, 187, b; Com. Dig. Baron and Feme, D. i. It needs no remark to suggest that if the common law was designed to produce unity of will, and to prevent action except by one not under influence or compulsion, no such practice as this could be permitted, for a husband's in- fluence over his wife is personal, and will operate just as strongly, in fact, in one class of dealings as in another. The rule can only be made sensible by holding that, as to matters which a wife MARRIAGE MODIFIED. 2f>5 could be allowed to hold and manage separately from any inter- est of her husband, these disabilities of coverture did not exist, or, in other words, that they were not regarded as personal only, but as relative to property. Thus far we have considered only such rights as are legal, as distinguished from equitable, and are enforced in all courts alike. But there has grown up by the side of the common law, a system of equitable rights and powers, which places married women, in regard to property, on the same footing, in most respects, with single women. When property is set apart for the separate use of a married woman, she is, in re- gard to it, emancipated from the disabilities of coverture, so far a? the terms of the trust warrant. This emancipation from her legal disabilities does not depend upon the husband's consent, nor upon any ante-nuptial agreement. It can be accomplished by any one, relative or stranger, who sees fit to provide a fund for her benefit. She may sue and be sued concerning it; she may contract concerning it, and her contracts will bind it and be enforced; she may give it away, or sell it. Her title is technically an equitable one, and not a legal one; but the trustees are bound to. follow her directions, and the distinction is purely formal. The income and proceeds are under her separate control and enjoyment, and her husband has nothing to do with them. Her doings, though not under the dominion or enforcement of courts of law, are recog- nized by such courts as valid, just as they are recognized and enforced in equity. If the legal disabilities were essential ele- ments of coverture, then equity, which recognizes and follows all the substantial principles of law, could not dispense with them. It would be a gross absurdity for any court to destroy the sub- stantial rights of the husband, or remove his lawful control. And it would be still more absurd to permit this interference at the hands of any meddling stranger at his option. But the doctrine has been long settled that as to her separate estate a wife is on substantially the same footing with a feme sole., See Pybus v. Smith, I Ves., Jr., 189; Sturgis v. Corp, 13 Ves., 190; Essex v. Atkins, 14 Id., 542; Wagstaif v. Smith, 9 Id., 520; Grigby v. Cox, I Ves., Sen., 518; Freeman v. Moore, 1 Bro. P. C, 237; I Hov. .Sup., 49-50; 2 Spence's Eq. Jur., 513; Jacques v. Metho- dist Episcopal Church, 17 Johns., 548; 2 Story Eq. Jur.,§§i395-6. Not only may she make disposition of it to others, but she may do so also in favor of her husband. The disability of the comrhon law which arose from the very fact that she was sub .256 LAW OF HUSBAND AND WIFE. potestate viri (and which undoubtedly is usually the case as a matter of fact to a great degree), was not considered as existing in equity, which sustained such dealings if fair and not undmy biased: 2 Story Eq. Jur., § 1395; Essex v. Atkins, 14 Ves., 542; Jacques v. Methodist Episcopal Church, 17 Johns, 548; i Hov. Sup. 49, and cases above. She can even bargain with her hus- band concerning her separate estate, and the agreement will be ^enforced: Lady Arundel v. Phipps, 10 Ves.,- 140; Livingston v. Livingston, 2 Johns. Ch., 537; Wallingford v. Allen, 10 Pet., 583; Bullard v. Briggs, 7 Pick., 533. Instead of looking with disfavor upon the settlement of sep- .arate property, equity has favored it. A separate estate will not fail for the lack of trustees, and if the legal title comes into the husband's hands, he himself will be held to be a trustee to his wife's separate use, and therefore subject to her orders, and he may be made a trustee expressly : 2 Kent's Com., 162 ; 2 Spence's Eq. Jur., 507 ; Wallingford v. Allen, 10 Pet., 583. Not only may a husband settle property to his wife's use through trustees, but he may make himself a trustee by agreement, or even by gift, where he has by some distinct act set apart the property. In Lucas V. Lucas, i Atk., 270, where a husband caused stock to be transferred to the name of his wife, although at law it would of course continue to be his own property, it was held to have been made his wife's separate fund. So in Shepherd v. Shepherd, 7 Johns. Ch., 57, and in Wallingford v. Allen, above cited, it was held that a conveyance directly from husband to wife should un- der' the circumstances be enforced as valid in equity. When equity recognizes a power in the wife, who is the disabled party, not only to de^l with others, but even to contract with and make provision for her husband out of her separate funds, it can hardly be claimed that the husband, who v/as always ciii juris, is restrained by any but technical rules from transferr- ing to her directly. We have seen that equity will enforce even such conve3'ances. But there never was a time when he could not by his deed put property where she could control it. If it were not that by standing in her name he became legally the owner of the usufruct, there could be no valid reason why any indirection ever need be resorted to. It is not against the policy of the law that the wife should have the real benefit of his gift ; and equity, looking through the form at the substance, calls it, as it is in fact, a gift from husband to wife. The doctrine laid down by Coke, in connection with the statute of uses, is of itself, sufficient to show MARRIAGE MODIFIED. 257 thai the disabihty as to conveyances springs entirely from the wife's incapacity to act for herself; and it is stated in 2 Kent's Ccm., 162, n. b, that by the present English statutes a husband is now authorized to make a direct conveyance to his wife. Our statutes have given power to a married woman to enjoy, contiact, sell, transfer, mortgage, convey, devise or bequeath her I-roperty in the same manner, and with the like effect, as if she were unmarried: 2 C. L., § 3292. Where it stands in trust for her, the trustees are authorized to transfer it to her: 2 C. L., § 3293. The statute evidently designs to do away with indirect dealings, and make her rights legal instead of equitable. Passive trusts have been entirely abolished, and where a deed creates thera, the title passes at once to the beneficiary: 2 C. L., § 2633-5. To require a husband (who is not supposed to be under her control or fear) to go through the farce of conveying to some- one else, who is at once to pass the property over to his wife, is to keep up a fiction which has not even a legal basis to support it, since the husband has ceased to have possessory claims over her property. He is now in law a stranger to her estate during cov- erture, instead of its possessor and manager; and his consent is not necessary to her disposal of it: Farr v. Sherman, 11 Mich., 33; Watson V. Thurher, 11 Id., 457. Whatever protection she may require when dealing with him, he certainly never was sup- posed to need any against her. Believing, as we do, that the basis of the common law dis- ability was in the peculiar disqualifications and burdens of the wife, and that the removal of these removes all the reasons which ever required the intervention of equitable trusts, we think there is now no objection to a deed from husband to wife, which should render it invalid. The court erred in excluding the deed. The other points ■become imniaterial. Judgment must be reversed, with costs, and a new trial granted. Christiancy and Cooley, JJ., concurred. 258 LAW OF HUSBAND AND WIPE. TONG V. MARVIN. 15 MICH. 60. (1866). Appeal from Huron circuit, in chancery. The bill in this cause was filed by complainant, through her next friend, against her guardian, Lucius Marvin, and other defendants, charging fraud in the sale of certain real estate, and praying that the same might be set aside. The bill also prayed that a certain deed of the premises ob- tained from her father by the purchaser at a certain guardian sale, through fraudulent representations, might be set aside, and the title thereto declared to be vested in her. Defendants demurred to the bill. The demurrer was sustained, and the bill dismissed. The facts necessary to an understanding of the cause appear in the opinion. CoOLEY, J. — The demurrer in this case is supposed to be sustainable on two grounds: i. That the bill, in charging fraud, merely sets forth conclusions, without giving such facts as would warrant the conclusions. 2. That even admitting the case made by the bill to be true, the complainant is not entitled to relief, inasmuch as the outstanding life estate of Proctor Tong, as tenant by the curtesy, has become vested in the defendants by means of the quit-claim deed to Daniel Marvin. The bill, in order to show fraud, recites the following facts: That the mother of complainant, being seized of the title to the land in controversy, died in 1857, leaving surviving her, Proctor Tong, her husband, and this complainant, her sole heir at law, both residing in the State of New York ; that the premises, which were situate in Huron county, were at that time subject to a mortgage, which was foreclosed by advertisement June 9, 1857, and the land sold for $675.93 ; that Daniel Marvin was desirous of becoming the owner of said land, and of depriving complainant thereof, and for that purpose procured an order from the Probate Court of Tus- cola County — to which Huron was then attached — appointing his son, Lucius S. Marvin, guardian for complainant; that he then loaned said Lucius the money to redeem the premises from said foreclosure sale; that thereupon said Lucius petitioned the Pro- bate Court for license to sell said lands, representing that com- plainant had no other property out of which he could be re-im- bursed said redemption moneys ; that license was granted for that purpose, and a sale made August 7, 1858, to said Daniel Marvin for the sum of $925 ; that a report of sale was made, showing the MARRIAGE MODIFIED. 259 expenses to have been $204.19, which, together with the redemp- tion moneys, exceeded the sum for which the land was sold ; that the premises at that time were worth more than $2,000, and that the proceedings of said Lucius S. Marvin, pretending to act as quardian for complainant, were originated and directed by the said Daniel Marvin for his own benefit, and for the purpose of enabling him, the said Daniel, to become the purchaser of said land at a price much less than its true value, and thus to defraud com- plainant. The bill also alleges that said Daniel, before he caused such appointment to be made, applied to said Proctor Tong, rep- resented to him that said land was of little value and not worth redeeming from said mortgage, and by means of these and other false and fraudulent representations, procured from him a quit- claim deed of said premises, bearing date June i, 1857. The com- plainant at this time was seven years of age. We have no doubt that these allegations, if sustained by the evidence, make out a case of legal fraud. The false representa- tions made to the father, by means of which a release of his sup- posed interest was obtained, had a direct tendency to induce the natural guardian of complainant to abandon all care for her in- terest in the land, and are equivalent, in the situation in which she then was, to false representations made directly to the person to be- defrauded, when such person is capable of managing his own af- fairs. Equity must have regard to the effect of false and fraud- ulent statements, rather than to the person to whom they are made ; and in most cases where a minor of this tender age is de- frauded, it is only accomplished by operating upon friends and natural protectors. But if the original transaction was, as is alleged in the bill^ originated and carried through by Daniel Marvin for the purpose of obtaining complainant's land, at an inadequate price, and the guardian was a mere instrument in his hands for that purpose, not acting at all in the interest of complainant, but solely in that of Daniel Marvin, we think a fraud both upon complainant and upon the law has been committed, which requires the intervention of equity. It is not, however, necessary that the facts and circum- stances which tend to establish the fraud should be detailed in the bill. Where the facts which constitute the fraud are set forth, with an averment of their injurious result, the case is sufficiently made by the pleadings, and a detail of the circumstances which tend to establish a dishonest intent in defendant's action, is more properly left to the evidence. Story Eq. PL § 282, and cases cited. 260 LAW OF HUSBAND AND WIFE. The principal question in the case, however, is whether Proc- tor Tong, the father of the complainant, had an estate by the cur- tesy which was conveyed to Daniel Marvin by his deed of June I, 1857. This question depends mainly upon the proper contsruc- tion of the statutes of 1844, 1846 and 1855, relative to the prop- erty and rights of married women, and the constitutional pro- vision on the same subject. And in approaching this subject we have earnestly endea- vored to arrive at the true meaning of the legislature and of the people in adopting these several provisions, that we may give ef- fect to their intention if possible. We have not felt ourselves at liberty to question, with any speculations of our own, the wisdom of the policy adopted in this state relative to the rights of married women, and we should feel conscious of usurping powers which properly belong to another department of the government, if, in- stead of giving effect to a plain declaration of legislative will, we should endeavor to apply arbitrary rules of construction, and thereby put upon the laws a forced and unnatural meaning with a view to making them correspond to some standard of our own, instead of that which has been adopted by the law-making de- partments. The control which a husband has over the person and estate of his wife at the common law is so great and so liable to abuse that it has for a long time been the subject of complaint, and of frequent interposition by courts of equity. He had ( i ) The con- trol of her person, and the right to appropriate her earnings to his own use; (2) He became by the marriage the owner of such personal estate as she then possessed, and of all that she should thereafter acquire during coverture; (3) He had a right to re- duce her choses in action to possession, and to dispose of her chat- tel interests in lands to his own use; (4) He became vested with her estate of inheritance during the coverture, and if he survived her, and issue capable of inheriting it had been born to them, he had a life estate therein; and (5) In cace of their separation, he had the better right to the control and custody of the children of the marriage. The corresponding rights of the wife were, (i) A right to support, and to have her debts before marriage paid by the husband; and, (2) A life interest in the one-third part of his estates of inheritance if she survived him. To these equity added, ( 3 ) An equity to a reasonable settlement, to be made from the property brought by her to the husband, for the support of herself and her children. Udell v. Kcnney, 3 Cow. 590; Van Du- zer v. Van Duzcr, 6 Paige, 366. MARRIAGE MODIFIED. 261 The act of March ii, 1844, "to define and protect the rights of married women," made an important change in the rights ac- quired by the husband by the marriage without at the same time diminishing his obligations. By this it was provided, "that any estate, real or personal, which may have been acquired by any female before marriage, either by her own personal industry, or by inheritance, gift, grant or devise, or to which she may at any time hereafter be entitled by inheritance, gift, grant or devise, and the rents, issues, profits and income thereof shall be and continue the real and personal estate of such female after marriage to the same extent as before marriage, and none of said property shall be liable for the husband's debts or engagements, but such prop- erty shall be liable for all the debts of the wife contracted prior to the marriage." It will be seen that this statute took away entirely all present right of the husband to the property; real or personal, of the wife, and to the rents and profits thereof. It did not, however, inter- fere with his common law right to the custody and control of her person, and to her earnings, nor did it expressly vest her with power to dispose of her property without his co-operation. Whether it left him to succeed to any rights in it at her decease is another question. The provisions of the act of 1844 were incorporated in the Revised Statutes of 1846, in a modified form. Section 25, of chapter 85, embodies the original act, with the proviso added, "that nothing in this section contained shall be construed to au- thorize any married woman to give, grant or sell any such real or personal property during coverture, without the consent of her husband, except by an order of the Judge of Probate, or the proper court of the county; and provided further, that upon a separation between such husband and wife, saving by an adjudi- cation of court, such married woman shall in no case be author- ized to remove any such property from the premises of her hus- band without his consent." The next section (26) gave to the Circuit Court of the proper county concurrent jurisdiction with chancery in cases arising un- der § 25 and § 27 ; provided that "if any married woman shall die without disposing of any such real estate, the husband surviving her shall have a life estate therein by the curtesy." That this sec- tion was adopted in reference to § 25, and with a view to restrain ing what would otherwise be its operation, or at least to put at rest any question on that subject, is apparent from the connection. 262 LAW OF HUSBAND AND WIFE. Another section in the statutes of 1846 — ch. 68, § i — empowered married women to dispose of real or personal property by will, with the written consent of their husbands, and still another defined cur- tesy as follows : "When any man and his wife shall be seized in her right of any estate of inheritance in lands, the husband shall, on the death of his wife, hold the lands for his life as tenant thereof by the curtesy : Provided, that if the wife, at her death, shall leave issue by any former husband, to whom the estate might descend, such issue shall take the same, discharged from the right of the surviving husband to hold the same as tenant by the curtesy." Ch. 66, § 30. This section, in requiring a joint seizure in hus- band and wife, was less broad than section 27 of chapter 85, and would seem to be idle and futile if curtesy was given by that sec- tion in all cases where the wife was seized of an estate of inherit- ance and the husband survived her. It will be seen that thus far no power is in terms given to the wife to dispose of her property, or of the issues thereof, except with the consent of the husband, or under the order of some court of competent jurisdiction ; and the main purpose of the statutory provisions which protected her in the title would seem to have been to preserve the property for the benefit of the family against its being squandered by the husband or seized by his creditors. But the constitution of 185 1 went further, and added to a provision in substance the same as the act of 1844 the words, "and may be devised or bequeathed by her as if she were unmarried." Art. 16, § 5- We come now to the act of 1855, "relative to the rights of married women," Comp. L. § 966, which not only embodies this constitutional provision, but, in brief and comprehensive words, gives to the wife full and absolute control of her real and personal estate, with power to contract, sell, transfer, mortgage, convey, devise and bequeath the same in the same manner and with the like effect as if she were unmarried. It is difficult to read this statute without coming to the conclusion that it was designed to cover the whole subject embraced in the provisions of sections 25, 26 and 27 of chapter 85, above quoted. We have no doubt such was its purpose. And not only does it totally abrogate all control of the husband over the wife's property, and authorize her to dis- pose of it without the intervention of any court, but it also fails to re-enact the provisions of section 27, and thereby by implication, as we think, repealed them. Dash v. Van Kleeck, 7 Johns. 497; Giddings v. Co.v, 31 Vt. 609. And we have now to see whether MARRIAGE MODIFIED. 263 the general provision on the subject of curtesy, above quoted from the revision of 1846 (ch. 66 § 30), is consitent with this act of 185s, and the constitutional provision quoted, and can stand with them. At the common law the incidents to curtesy were marriage, seizin in the wife of an estate of inheritance, birth of living issue, which by possibility might inherit it, and death of the wife, Co. Lit. 2% b ; 4 Kent, 29. The husband's right became initiate the moment the issue was born. The husband and wife were said to be jointly seised. Mclvin v. Proprietors, etc., 16 Pick. 161 ; Weis- inger v. Murphy, 2 Head, 674; and this is the idea of our statutes of 1838, p. 265, and of 1846, as above quoted ; though the actual right for the life of the husband was in him, and might be taken and sold on execution. Mattocks v. Stearns, 9 Vt. 326 ; Roberts V. Whiting, 16 Mass. 186; Canby's Lessee v. Porter, 12 Ohio, 79. That the common law estate by the curtesy cannot exist in this state under the statutes now in force is too apparent for ar- gument. But the estate, under the Revised Statutes of 1846, was quite different from, that at the common law. It required no birth of issue, and it did not become initiate in the life time of the wife. Hathon v. Lyon, 2 Mich. 93. But in many of its provisions it was as inconsistent with the constitutional provisions and the act of 185s as was the estate at the common law. It required joint seizure in husband and wife, in the right of the wife, which has not existed in this state since the act of 1844, except in those cases where the wife's title had accrued prior to that act. and the husband's right had then become initiate. It gave from the wife's fee a life estate to the husband at her death, while' the act of 1855 gives the full power to devise the same "in the same manner and with the like effect as if she were unmarried." Its effect was to make the inheritance subject to the "debts, obligations and engagements" of the husband, if he survives her, though the act of 1855, in carefully chosen words, expressly de- clares that none of her property shall be so liable. And we should be required to hold, in order to support the statutory estate by the curtesy, that the statute, when it declares that the wife's real estate shall be and remain hers the same as if unmarried, means only that it shall be and remain hers in a quali- fied and usufructory sense, but subject to have a freehold estate carved out of it for the benefit of the husband or his creditors, to the exclusion of her heirs, although, had she remained unmaf- ried, it would have been subject to no such contingency. 264 LAW OF HUSBAND AND WIFE. And it would also be necessary for us to hold that the words employed by the legislature of 1855, apparently chosen with skill to carefully exclude any construction that the wife's estate in or control over the land is to be any other or different from what it would have been had she remained single, are, notwithstanding, to be qualified by some implied understanding which attaches to it certain incidents growing out of the marriage relation. Great as are the changes made by the act of 1855, it does not take from the husband the right, to the joint earnings of himself and his wife, by means of which the accumulations during cover- ture come exclusively to him. Glover v. Alcott, 11 Mich. 470. And it expressly exempts him from liability on any contract by the wife in relation to her sole property. These facts are not to be overlooked when we are endeavoring to arrive at the legisla- tive intent. The purpose of the act of 1855 to protect the family against the consequences of the husband's dishonesty or improvidence, is still more apparent than in the case of the preceding provisions on the same subject. It not only preserved to the wife all her rights in her own property, as if she had remained sole, and gave her full power of control and disposition, but it also supplemented the exemption laws by authorizing her to sue in her own name for property of the husband which the statute had made exempt from levy, sale or mortgage by him without her consent. The homestead provisions, with the like intent, avoid any conveyance of the homestead by the husband without the wife's signature. But these exemptions are from the husband's own property; and we should hardly expect to find other provisions in force at the same time, which, on the death of the wife, would vest a life in- terest in her own real estate in him, to the exclusion of the chil- dren, if any, and without any check upon his power to dispose either of that or of the personal means of support which the statute so carefully protected against his acts during his wife's life time. The question before us we think is disposed of by the posi- tive and unambiguous terms employed in the statute ; but it may be well to refer to the few cases which bear upon it. In White v. Zane, 10 Mich. 333, which was a suit between the husband on the one side and the wife's administrator on the other, for personal property of the wife left in the husband's possession at her death, this court in effect decided that under the statute the wife's per- sonalty is not simply to "be and remain" hers during her life time. MARRIAGE MODIFIED. 265 but that the husband's common law interest therein was altogether excluded. Decisions upon kindred questions eleswhere are not uniform, and it is perhaps not important to refer to them except as they relate to the particular estate in question. In The Junc- tion Railroad Co. v. Hams, 9 Ind. 184, it was held that a statute which declared the wife's real estate her "separate property," free and clear of all claims of the creditors and legal representatives of her husband, as fully as if she had never been married, but which, so far as the case shows, did not in terms authorize her to sell or devise the same, did not cut off an estate by the curtesy which had become initiate, and could not constitutionally be made to do so. The statute, it wall be perceived, is quite different from the one we are called upon to construe, and the question was as to its retroactive effect. In Hurd v. Cass, gBarb. 366, arising under a statute very nearly like ours of 1855, though perhaps not quite so. comprehensive. Judge Mason, sitting in the Supreme Court at special term, held the estate by the curtesy not affected by the statute. To arrive at this conclusion the old rule was applied, that a statute in derogation of the common law is to be strictly construed ; a most excellent rule when rightly applied, but which has often been employed to torture words into expressing a mean- ing which was not in them. The case Hurd v. Cass was followed by Clark v. Clark, 24 Barb. 581, which was also the decision of a single judge at special term. No case in New York has under- taken to consider the question at length, except Billings v. Baker, 28 Barb. 343, which holds curtesy abolished. In the subesquent case of Thurher v. Tozunsend, 22 N. Y. 517, a decision is made by the Court of Appeals which, as we understand it, overrules the two cases of Hurd v. Cass, and Clark v. Clark, supra, and settles the law of New York in accordance with the views we have ex- pressed. The present case does not call for any opinion as to the effect of the constitutional provision we have quoted upon estates by the curtesy which had become initiate before the act of 1844, nor as to the state of the law between 1844 and 1855. The descent of the land in question to the wife was in 1855, and her death took place in 1857. We are entirely satisfied that Proctor Tong had no estate by the curtesy in the land, and that on neither point was the demurrer well taken. We think it legally impossible that a woman's estate should remain unaffected by her marriage, and the husband at the same time acquire by the marriage an estate, either vested, initiate or contingent, in it. 266 LAW OF HUSBAND AND WIFE. The decree of the court below dismissing the bill must be reversed, the demurrer overruled, and the case remanded with leave to defendants to answer on payment of the costs of this court and ten dollars costs in the court below. DE VRIES V. CONKLIN, 22 MICH. 255. (1871). Error to Lenawee Circuit. This was an action of assumpsit brought by Charles A. Conk- lin in l^e Circuit Court for the County of Lenawee, against Peter De Vries and Charlotte De Vries upon a promissory note, signed by both defendants. It appeared upon trial that Charlotte De Vries was the wife of the other defendant ; that the note was vol- untarily executed and that the sole consideration for it was the dis- continuance of a suit in assumpsit then pending in a justice court, between the plaintiff and Peter De Vries, one of the defendants. The court found for the plaintiff, for whom judgment was entered, and the cause now comes into this court by writ of error. CooLEY, J. — The question presented on the merits in this case is, whether a married woman can be personally liable in this state on a promisory note which she has igned as surety for her husband, and where the sole consideration was the pre-existing debt of the husband. Our statute has deprived the husband of those rights in the property of the wife which the common law conferred upon him, and has declared that her real and personal estate which she has at the time of her marriage, or which she may thereafter acquire, shall be and remain hers, and may be contracted, sold, transferred, mortgaged, conveyed, devised, and bequeathed by her in the same manner and with the like effect as if she were married. Comp. L. p. 966. We have construed this law liberally with a view to effectuate its general purpose ; and it belongs to a class of remedial statutes which we think should have such construction. We have sus- tained contracts made by married women for the purchase of property on credit ; though, perhaps, they might not come strictly within the terms of the statute. Tillman v. Shackleton, 15 Mich, 447. We have held, also, that husband and wife may make con- veyances of lands directly to each other. Burdeno v. Amperse, 14 Mich, 97. Such contracts and conveyances may presumptively be beneficial to the wife, and they relate to the sole interests which MARRIAGE MODIFIED. 267 the statute designs to protect, and in respect to which it was meant that all her common law disabilities should be wholly removed. We have also held that a married woman may mortgage her lands for the debt of her husband. Watson v. Thurber, ii Mich, 457. A conveyance by mortgage comes clearly within the power given her by the statute, and she niust judge for herself whether it is for her interest to give it or not. But the statute neither in terms authorizes a married woman to make herself liable personally for the debt of another, nor where no consideration moves to her can it be presumptively for her benefit. It was no part of the design of the statute to relieve her of common law disabilities for any such purpose. These dis- abilities are removed only so far as they operated unjustly and op- pressively; beyond that, they are suffered to remain. Having been removed with the beneficent design to protect the wife in the enjoyment and disposal of her property for the benefit of her- self and her family, the statute cannot be extended by construc- tion to cases not embraced by its language, nor within this design. What we have said here has no reference to the power of a married woman to charge her separate estate in equity. The es- tate which a married woman may hold generally and control un- der the statute is not separate estate, technically so called, in equity ; and it is subjected to the wife's obligations through com- mon law rules, as modified and made applicable by statute, and not by the aid of the court of chancery. But the present suit has no reference to the ownership by the wife of any estate whatever; nor are we informed by the record that she possesses any. The suit is brought to obtain a personal judgment against her on a demand created without any reference to her ownership of prop- erty, either present or prospective ,except so far as the parties may be supposed to have contemplated her pecuniary ability to respond should judgment be obtained upon it. We cannot find in the statute any authority conferred upon her to create such a demand, and we think the court erred in holding her liable. The judgment must be reversed, with costs, and a new trial ordered. In the Circuit Court the plaintifif, of course, will be al- lowed to amend so as to proceed againstnhe husband alone if he sees fit. The other justices concurred. 268 LAW OF HUSBAND AND WIFE. EMERY V. LORD, 26 MICH. 431. (i8'/3). Error to Oakland Circuit. W. B. Jackson, for plaintiff in error. G. X. M. Collier and Wisner & Draper, for def enant in error, Christiancy, Ch. J. — This was an action of assumpsit brought by defendant in error against the plaintiff in error, upon a promissory note made by her, she being at the time of its exe- cution, and when the suit was brought, a married woman living with her husband. The evidence as set forth in the bill of exceptions, so far as material to be stated, tended to show that she was the owner in her own right, of the "N6rthern Hotel" property, so called, in the City of Pontiac; that the plaintiff (below) had furnished lumber and other materials for building a barn upon the premises, and which were so used ; but that he dealt entirely with the husband, and charged the whole amount — about eleven hundred dollars — upon his book, to the husband, at the time the materials were fur- nished; that the credit, therefore, was given to the husband, in- stead of the wife, at the time ; that the plaintiff received payments from the husband, which reduced the amount down to fo.ur hun- dred and fifteen dollars. Plaintiff wishing payment of this balance, called upon the husband for it, who requested time for that purpose, which the plaintiff agreed to give if the wife would give her note for it, which she did, payable four months after date ; and this is the note upon which the action is brought. Whether the note was given and received in payment, or only as secvirity, was a question upon which the evidence was conflict- ing, there being evidence tending to prove both. The note is in the ordinary form of a note made by any com- petent party, without referring to her separate property, or to the fact that she was a married woman, and without stating what was the consideration for which it was given, and is signed simply "Mary Emery." The only question in the case is, whether upon these facts, the note was valid, and whether the action against her can be maintained upon it. If the balance of the account for which the note was given, was equitably due from the wife, and if, as between her and her MARRIAGE MODIFIED. 269 liusband and Ihe plaintiff, there was an equitable obligation on her part — as, if the materials furnished by the plaintiff, were thus used in improving her property, without her having paid or be- come bound to pay to the husband or any one else for them', or if the husband, as between him and his wife, was acting only as her agent — then, whether the note was given in extinguishment, or only as security for the indebtness, and though the credit might originally have been given to the husband, there was a good and valuable consideration for the note, and she would be bound. It would then be, in effect, substantially a debt incurred on account of her own separate property, with respect to which she was, by our statutes, for all purposes of this kind, to be treated in all respects as if she had been unmarried. And there can be no more reason, in such a case, for declaring upon the face of the paper her intention to charge her separate property, in order to hold her or her property liable, than in the case of any unmarried woman or other competent party. But if she had paid her husband, or any other person, as, for instance, a contractor, for these m.aterials, or, by contract, she had bound herself to pay either the husband or such third person who had undertaken to furnish the materials, then the materials, though furnished originally by the plaintiff on the credit of the husband or such third person, would, in no legal or equitable sense, be considered as furnished by the plaintiff for her benefit, but for that of the party to whom he gave the credit, and she would be neither equitably nor legally bound to pay him, nor would there be any sUch equitable obligation as would constitute a valid consideration for the note, though the materials happened to be used in the construction of a barn on her premises, and with her knowledge and consent. The court below correctly charged the jury that "if they should find that the note was given simply for the purpose of se- curing a debt which her husband owed the plaintiff, then she would not be liable upon it, and the verdict should be for the de- fendant." But his charge further proceeds to say : "On the other hand, if the jury shall find from the evidence that the consideration for the note, which appears to have been lumber and lime, went to improve the separate estate of the defendant, and with her knowl- edge and approbation, and she gave the note for the balance of the account, and not as security for the pament of the husband's debt, then you will find for the plaintiff." 270 LAW OF HUSBAND AND WIFE. Now this charge made her liability upon the note, and the plaintiff's right of recovery, depend upon the single isolated ques- tion, whether the materials for which the note was given, went to improve her separate estate; and made the fact of the use of the materials in that way, if with her consent and approbation, con- clusive of her liability upon the note. But, as we have already seen, the materials might in several different ways have been so used with her consent and approbation, without creating any moral or equitable obligation on her part to pay the plaintiff for them. For this error the judgment must be reversed, with costs, and a new trial awarded. The other judges concurred. JENNE v. MARBLE, 37 MICH. 319. (1877). Campbell, J. — This is an action at law by the assignee of a husband against his wife on personal covenants for the payment of rent on a lease from the husband to the wife, and for the value of certain farm live stock claimed to have been sold to her. The lease, dated July lO, 1874, leased two farms — one on shares, and one, which included a legal homestead and some addi- tional land, for $260 a year and taxes. The lease, which was in the ordinary form used for farming leases, contained personal co- venants, and clauses of eviction on default. The court below held that the transaction was not such as to create a valid right of action for the husband against the wife, as not warranted by the statutes. Under our statutes, a wife has no power to contract except in regard to her separate property. The present contract, if valid, is made so because the leasehold interest for which she bargained could be so regarded, and also the personal property which it is claimed she purchased. The case before us is without any clear precedent, and must depend upon whether it is covered by principles which have been determined. It has been held that a contract for the purchase of property may be lawfully made by a married woman, the procurement of property which she is to own being equivalent to the creation of a separate interest. Tillman v. Shackleton, 15 Mich. 447; Camp- bell V. White, 22 Mich. 178; Poivers v. Russell, 26 Mich. 179; Rankin v. West, 25 Mich. 196. MARRIAGE MODIFIED. 271 The constitution and statutes are clear against her right to make a mere personal obligation unconnected with property, and not charging it ; so that she cannot become personally bound jointly with her husband, nor as surety, by mere personal promise. De Vries v. ConkUn, 22 Mich. 255 ; West v. Laraway, 28 Mich. 464; Emery v. Lord, 26 Mich. 431. She may receive a gift of land directly from her husband as the statutes now stand, Burdeno v. Am perse, 14 Mich. 94; but she could not do so until the statute of 1855 gave her enlarged powers of contracting. Ransom v. Ransom, 30 Mich. 328. She may also make gifts and transfers to her husband . Penniman v. Perce, 9 Mich. 509 ; Ditrfee v. McClurg, 6 Mich. 223. But the law has not disregarded the fact that marital influ- ence places married persons in different relations from others, and prevents their dealings from being governed by the same rules which usually require others to abide by bargains not tainted with distinct evidences of fraud and misconduct. Where a husband gets the advantage, it requires no great positive evidence to establish the invalidity of his bargain. Witbeck v. Witbeck, 25 Mich. 439 ; Wales V. Nen'bold, 9 Mich. 45 ; Stiles v. Stiles, 14 Mich. 72. It is not the purpose of the law to create any rule which will tend to destroy the value and confidence of the marital relation, Snyder v. People, 26 Mich. 106. The statutes have made it im- possible for married persons to deal on the same footing with others, by preventing either from testifying against the other without mutual consent, or from divulging their mutual conver- .sations not made in public. It is impossible, therefore, for either to explain any transaction and its circumstances, as it might be done among strangers. Inasmuch as the wife's power of contracting is special and not general, we can only get light on it from the doctrines which have been enforced. At common law there were mutual disabili- ties — husbands not being able to act any more than their wives, in mutual contracts. The man as well as the woman was under disability. The same rule applied in equity, except in regard to separate estates, and to some extent as to those. It is important to understand the peculiar elements of the agreement here sued upon, in order to know the bearings of the rules which have been considered in other cases. In the first place the argeement is one intended to be enforced by an ordinary action at common law and not in equity, and such an action is brought here. 272 LAW OF HUSBAND AND WIFE. In the next place, it is executory entirely on the part of the wife, involving no present transfer or charge of her property, or any of it. * In the third place, it requires her to pay rent, incapable of be- ing apportioned, upon the farm on which the family at the time resided, and where she was entitled to live and be supported ; and includes within that farm a legal homestead over which her hus- "band or his creditors could under no circumstances exercise do- minion which would interfere with her right of possession, and it confers a right of eviction for any default in payment of rent. In the fourth place, it either contemplates a separation which no court of law would enforce, or else it compels her to pay rent for property jointly occupied with her husband as a home, in which he was legally bound to maintain her. And lastly, as regards the personal property, it consisted of animals used on the homestead, most of which were exempt from execution and incapable of being disposed of by the husband with- out the wife's consent, and liable, if so interfered with, to be re- plevied by her, and none of which had been so distinguished as to take them out of the exemption. The act of 1855 before referred to, does not, as already sug- gested, abrogate all of the common law or of the statutes restrain- ing married women from contracting, and it does not profess to change the powers of husband and wife to deal with each Other, ■except so far as such a change is implied. So far as it fairly ex- tends it does so operate, in some important particulars as held by this court heretofore. But we have not held, thus far, that husband and wife may contract with each other generally, nor has it been heretofore de- •cided that they could now make contracts enforceable at law, which could not have been enforced in equity formerly concerning a wife's separate estate. In equity a wife's transfer of her separate property or its in- come to her husband might be valid, and would, if not objection- able, be sanctioned by a court of equity ; and it was usually sanc- tioned if made for a valuable consideration, or if proper under the circumstances. This doctrine somewhat reluctantly recognized by Lord Thurlow in Pylms v. Smith, i Ves. Jr., 189, is the ruling English doctrine, and was followed in Methodist Ep. Church v. Jaques, 3 J. C. R., jy. In the Court of Errors, 17 J. R., 548, the doctrines laid down indicated that the power to deal with separate property under settlement was presumptively absolute, while the MARRIAGE MODIFIED. 27,3 chancellor, whose opinion has been more approved in the United States, regarded the settlement as furnishing the measure of authority, and not the limitation. Upon the general doctrine see cases collected in notes to Pybus v. Smith, i Hov. Supplement 67 ; 2 Kent's Com., 162, et seq., and notes ; i Leading Cases in Equity, 394, and notes, English and American, to Hulnie v. Tenant. These distinctions are not important under our statutes which give all the power that would have been possible under any settlement. All of the cases, however, rest upon the doctrine that the act of the wife is the execution of a power of appointment, and not an ordinary personal contract. It was never held that under any such dealings an obligation could be enforced beyond the separate estate referred to ; and the broad statements that the wife could contract as if sole concerning her separate estate were uni- formly and invariably understood in that way, and in all cases the court exercised the power of considering the propriety of the arrangement when made with the husband, which it could not have done if there had been any power of contracting in the general and unqualified sense. And we have found nothing authorizing the inference that a husband could sue a wife at law or in equity to enforce a purely executory contract. The case of Livingston v. Livingston, 2 J. C. R.", 537, comes nearer to it, apparently, than the other cases, but it sustains no such doctrine, although the language alone might seem to warrant it. There, in pursuance of a mutual understanding, a husband agreed to pur- chase a lot and improve it, and have title made to his wife, and that another house and lot belonging to her should be disposed of to pay for it. After his wife's death he filed a bill to establish a resulting trust in his own favor as having furnished the means whereby the property was procured to be taken in her name, claiming that the agreement had failed, and that the money not being intended as an advancement, he was in equity to be pro- tected. This occurred before the statutes abolished resulting trusts in favor of those who paid the purchase money of prop- erty conveyed to others. The bill, instead of seeking to enforce the contract, treated it as void. The court recognizing the equity, regarded the fulfillment of the contract as more beneficial to the infant trustees, and de- creed that the money be raised by sale of the original house and lot instead of the one purchased, as in case of resulting trust the complainant was entitled to the latter absolutely, and he had only desired to receive back his money. If he had insisted on his strict 274 LAW OF HUSBAND AND WIFE. rights he would undoubtedly have procured them. The case was not so framed as to go upon the contract as a ground of relief. In Milnes v. Busk, 2 Ves. Jr., 488, it is emphatically denied that husbands and wives may contract as other persons can concerning the wife's separate estate. If we hold that the contract before us is valid, we must do so upon the ground that husbands and wives can contract with each other just as freely as strangers can, and may sue each other just as freely in law or in equity. No ground short of this can main- tain this action. We think the statutes have not gone far enough to allow this, and that, so far as husbands and wives are con- cerned, they cannot contract with each other in any larger sense than they could formerly in equity, except that their contracts when valid may be enforced at law where legal in form. Unless impliedly repealed there can be no question as to the disability under the whole code of statutes prior to the law of 1855, and the language of that statute is no broader than the equitable rules concerning separate property laid down in the same words in most of the old decisions. The language is borrowed almost if not quite verbatim from the decisions of Lord Thurlow and Chancellor Kent. The disabilities of testimony are entirely inconsistent with ' the idea that a husband and wife may deal with each other as third persons can. This is impossible if they cannot testify con- cerning their contracts. And when the law recognizes, as it al- ways has done, the peculiar power of substantial coercion pos- sessed by husbands over wives, it would not be proper to infer any legal intent to remove protection against such influence from any vague provisions which no one supposes were ever actually designed to reach such a result, and which can only be made to do it by an extended construction. Any one can readily see the mischiefs of allowing persons thus related to put themselves hab- itually in business antagonism, and legislation which can be con- strued as permitting it is so radically opposed to the system which is found embodied in our statutes generally, that it should be plain enough to admit of no other meaning. It is very questionable whether — apart from personal dis- qualifications, — the terms of these contracts would not create dif- ficulties as to their enforcement by suit upon the money coven- ants, which include exempt property. But this question is one of less consequence, and need not be considered. The judgment should be affirmed with costs. MAERIAGE MODIFIED. 275 MARTIN V. ROBSON, 65 ILL. 129. (1872). Appeal from the Circuit Court of Marshall county; the Hon. Samuel L. Richmond, Judge, presiding. This was an action on the case, brought by the appellee against Margaret Martin and John Martin, her husband, to re- cover for certain slanderous words spoken by Margaret Martin, of and concerning the appellee, imputing that the appelle was guilty of fornication. The cause was tried upon the declairation, and the plea of not guilty. Verdict for $2,500, of which sum $1,000 was remitted, and motion for a new trial overruled. Messrs. Bangs & Shaw, and Mr. R. F. Winslow, for the ap- pellants. Messrs. Burns, Barnes & Ong, for the appellee. Mr. Justice Thornton delivered the opinion of the court: Since the passage of the acts of 1861 and 1869, ( Session Laws of 1861, 143, and of 1869, 255), is the husband liable for the torts of the wife during coverture, committed when he was not pres- ent, and in which he in no manner participated ? Those statutes give to the wife, during coverture, the sole control of her separate estate and property acquired in good faith from any person other than her husband, and her own earnings for labor performed for any person other than her husband or minor children, with the right to use and possess the property and earnings, free from the control or interference of her husband. In determining the intent, object and effect of these enact- ments, it will be interesting to place, in juxtaposition, the rights and duties, liabilities and disabilities of husband and wife, inci- dent to the marriage union, as they existed at common law, and the changes made by the statute. At common law he had control, almost absolute, over her person; was entitled, as the result of the marriage, to her ser- vices, and consequently to her earnings: to her goods and chat- tels; had the right to reduce her choses in action to possession, during her life ; could collect and enjoy the rents and profits of her real estate ; and thus had dominion over her property, and be- came the arbiter of her future. She was in a condition of com- plete dependence ; could not contract in her own name ; was bound to obey him; and her legal eixstence was merged in that of her husband, so that they were termed and regarded as one person in law. As a necessary consequence, he was liable for the debts of 276 LAW OF HUSBAND AND WIFE. the wife dum sola, and for her torts and frauds committed dur- ing coverture. If they were done in his presence, or by his pro- curement, he alone was Hable; otherwise they must be jointly sued. Now, he can not enjoy the profits of her real estate without her permission. He has no control over her separate personal property. It is not subject to his "disposal, control or interfer- ence." Language could not be more explicit. All her separate property is "under her sole control, to be held, owned, possessed and enjoyed by her the same as though she was sole and unmar- ried." He has no right to use or dispose of a horse or a cow with- out her consent. He can no longer interfere with her choses in action. They are under her sole control. The product of her labor is her exclusive property. She alone can sue for and enjoy it. Any suit for her earnings must be in her own name, and she may use and possess them free from the interference of her hus- band or his creditors. The language of the statute of 1869 is, "That a married woman shall be entitled to receive, use and possess her own earn- ings, and sue for the same in her own name, free from the inter- lerence of her husband." The words, "free from the interference of her husband," apply as well to the right to receive, use and possess, as to the right to sue for, her earnings. The right, therefore, to receive and use her own earnings, uncontrolled by the husband, is con- ferred in express terms. The practical enjoyment of this right presupposes the right to appropriate her own time. The right to take and possess the wages of labor must be accompanied with the right to labor. If the husband can control, then the statute has conferred a barren right. If the wife can still only acquire earnings with his consent, then the statute was wholly unneces- sary, for she might have done this prior to its enactment. The clear intent of the statute is, not alone to give the wife the right to accept and use her earnings, but the right to labor, and thus acquire them. The intention of the legislature to abrogate the common law rule, to a great degree, that husband and wife were one person, and to give to the latter the right to control her own time, to manage her separate property, and contract with reference to it, is plainly indicated by these statutes. While they do not ex- pressly repeal the common law rule, that the husband is liable for the torts of the wife, they have made such modification of his MARRIAGE MODIFIED. 277 rights and her disabilities, as wholly to remove the reason for the liability. The rights acquired by the husband by virtue of the mar- riage have almost all been taken away ; and the disabilities of the wife have nearly all been removed. She now controls her own es- tate entirely, except that, by construction of the courts, she can not convey her real estate without her husband. This, however, is solely for her protection, and to prevent the squandering of the estate. He has now only a modified tenancy by the curtesy, de- pendent upon a contingency, and no estate vests during the life of the wife. This is rather a shadowy estate. It is an interest which may possibly ripen into something tangible in the uncertain future. Previous to the act of 1861, it could be sold on execution against the husband; now, the wife has the sole control of her real estate during her life, and the husband has no interest until her death. She must sue alone for breach of covenant in a deed to her. This estate, at best, is now a bare possibility. Cole v. Van Riper, 44 111. 58; Beach v. Miller, 51 ib. 206. A liability which has for its consideration rights conferred, should no longer exist when the consideration has failed. If the relations of husband and wife have been so changed as to deprive him of all right to her property, and to the control of her person and her time, every principle of right would be violated, to hold him still responsible for her conduct. If she is emancipated, he should no longer be enslaved. For the policy and wisdom of the legislation which has ef- fected a change so radical, the legislature alone is responsible. The courts must guard against a construction which might prove michievous, and result in a practical divorcement of man and wife, if such construction can be avoided. In Cole V. Van Riper, supra, this court said that the legisla- ture never could have intended, by the enactment of 1 861, to loos- en the bonds of matrimony, or to enable the wife, at pleasiire, to effectuate a divorce a mensa et thoro, or to confer the power to restrict the husband to the use of a particular chair, or to forbid him to take a book from the library without her permission. We shall not insist that such unwifelike conduct can even be justified since the law of 1869. The inquiry is therefore pertinent, what is left of the nup- tial contract? What duties and obligations still exist? As the result of the marriage vow, and as a part of the con- tract, the wife is still bound to love and cherish the husband^ 278 ' LAW OF HUSBAND AND WIFE. and to obey him in all reasonable demands not inconsistent with the exercise of her legal rights ; to treat him with respect, and re- gard him at least as her equal; and he is still bound to protect and maintain her, unless she should neglect wholly her marital duties as imposed by the common law, or assume a position to prevent their performance, and thus deprive him of her society, mar the beauty of married life, and disregard the household good. These duties and obligations upon husband and wife were not the result of the arrangement of their property at common law, but of the contract of marriage and the relation thereby created. By the marriage she became one of his family, and he was bound to provide her a home, and necessaries there but not elsewhere. He must furnish her with necessaries, from a prin- ciple of duty and justice. 2 Kent'^ Com. 148. "The duties of the wife, while cohabiting with her husband, form the consideration of his liability for her necessaries." Mc- Cutchen v. McGahay, 11 Johns. 281. This doctrine is approved by Kent in his Commentaries, 2 Vol. 146. The argument urged to maintain the responsibility of the husband for the torts of the wife, because he may still be bound to provide necessaries, is not appropriate. Upon the marriage, at common law, his assent to her contracts for necessaries was presumed, upon proof of cohabitation. If she eloped, though not with an adulterer, the husband was not chargeable even for neces- saries. But elopement did not release him from liability for her debts dum sola, or for her torts. The rule at common law, as to the liability for necessaries, is, if a man, without justifiable cause, turns away his wife, he is bound for her contracts for necessaries suitable to her degree and estate. If they live together, and he will not supply her, or the necessary means, she then can pledge his credit for necessaries strictly; but if he provides for her, he is not bound by her con- tracts, unless there is evidence to prove his assent. He is not bound by her contracts, unless they are made by his authority or with his concurrence, except he makes no provision for her. Montaugue v. Benedict, 3 Barn. & Cress. 631 ; Montague v. Es- pinesse, i Car. & Payne, 502; Atkins v. Curwood, 7 Car. & Payne, 756. The plain reason for the obligation w?is the cohabitation, or the right to enforce it, and the consequent right to her obedience and services. Even though she lived separate from him, supported her MARRIAGE MODIFIED. 279 children, and earned a salary, the party owing her had no right to pay her, after notice from the husband not to do so. He could, in such case, sue for and recover the salary. Glover v. Proprie- tors of Drury Lane, 2 Chitty, 117. Now, how changed! Her earnings, except for services she may render to him and his minor children, are her exclusive property, whether living apart from or with him. No principle is better settled, at common law, than that the husband is not liable for necessaries furnished to the wife, if she leaves him without any fault on his part. But he was responsible for her torts until a dissolution of the marriage, even in case of separation. Where the husband and wife lived apart, and she published a libel of a third person, he was held to be answerable, notwith- standing the separation. Head v. Briscol and Wife, 5 Car. & Payne, 484. The foundation for the liability in the two cases is different. In the one case it was based upon cohabitation, and the enjoyment of the society and services of the wife, as a necessary consequence. In the other case it rested more particularly, if not exclusively, upon the fact that the husband became the absolute owner of her personal property, and had the right to receive the rents and profits of her real estate. It is also urged, as a reason for the continued liability of the husband for the torts of the wife, that this obligation was im- posed upon him at common law, whether she was poor or wealthy, and that therefore the statutes have produced no different rule. If she did not enrich him with property — if she did not en- dow him with gold — she endowed him with a nobler gift and a greater excellence. She enriched him with her society, advised and encouraged him as one who had no separate interests, and freely gave to him her time, industry and skill. As a means ot paying her debts and damages for her torts, her counsel and earn- ings might be as important as her accumulated property. The distinction between the liability of the husband for the contracts of the wife before marriage, and for her torts during marriage, — as. for slander uttered by her alone, — is too dim to be easily seen. He was made liable for her debts at the period of marriage, because the law gave to him all her personal estate in possession, and the power to recover her personal property in action. Bright's Hus. & Wife, 2 Vol. p. 2. He was bound to pay her indebtedness because he adopted her and her circumstances together. Black. B. i, 443. 280 LAW OF HUSBAND AND WIFE. The law made him Hable for the debts to which he took her subject, because he acquired an absolute interest in her personal property, had the receipt of the rents and profits of her real estate during coverture, and was entitled to whatever accrued to her by her industry or otherwise, during the same period. Steph. Nisi Prius, Vol. i, p. 726. The reason for the liability, according to some authorities, is that, by the marriage, the wife was deprived of the use and dis- posal of her property, and could acquire none by her industry, as her person and earnings belonged to the husband. Tyler on In- fancy and Cov., sec. 216. The same author, after declaring the husband's liability for the debts and torts of the wife, says: "The reason assigned for such liabilities at common law is^ that he was entitled to the rents and profits of the wife's real estate during coverture, and to the absolute dominion over her personal property in possession." Sec. 233- The common law was never guilty of the absurdity of im- posing, obligations so onerous wjithout conferring corresponding rights. Hence, besides the rights of property, the legal pre-em- inence was exclusively vested in the husband. - He was answer- able for her misbehavior, and hence had the right of restraint over her person. Black. B. i, 444. Lord Kaimes, in his Sketches, says : "The man bears rule over his wife's person and conduct; she bears rule over his in- clination ; he governs by law, she by persuasion." In the matter of Cochrane, 8 Dowl. P. C. 632, the wife was, upon the hearing of a writ of habeas corpus, restored to her hus- band upon the principle that she was under his guardianship, and that the law entitled him, "for the sake of both, to protect her from the danger of unrestrained intercourse with the world, by enforcing cohabitation and a common residence." So long as the husband was entitled to the' property of the wife and to her industry, so long as he had power to direct and control her, and thus prevent her from the commission of torts, there was some reason for his liability. The reason has ceased. The ancient landmarks are gone. The maxims and authorities and adjudications of the past have faded away. The foundations hitherto deemed so essential for the preservation of the nuptial contract, and the maintenance of the marriage relation, are crum- bling. The unity of husband and wife has been severed. They are now distinct persons, and may have separate legal . estates, contracts, debts and injuries. MARRIAGE MODIFIED. 281 To this conclusion have all the decisions of this court tended. So far as the separate personal property of the wife is con- cerned, she is now the same as a feme sole. She need not join her husband with her in a suit to recover it, or for the trespass to it, as her rights only are affected, and she must sue alone for any invasion of them. She may even prosecute a suit against her husband for any unlawful interference with her property, con- trary to her wishes. Emerson v. Clayton, 32 111. 493. The right of action for personal injuries to the wife is prop- erty. She may sue alone for the recovery of damages for such injuries, and the husband can not, without her consent, release them. C. B. & Q. R. R. Co. v. Dunn, 52 111. 260. In the same case it is said that she can maintain, in her own name, an action for slander of her character. If she alone is en- titled to receive, and appropriate to her own use, damages recov- ered for slander of herself, she should answer for her slander of others. Until the law of 1869, this court adhered to the common law rule, that the husband was responsible for the debts of the wife contracted before marriage. It was repeatedly declared that the liability rested, not only upon the fact that the husband, upon the marriage, became the owner of the wife's personal property, when reduced to possession, and of a life estate in her realty, but upon the ground that he was, entitled to the entire proceeds of her time and her labor, and that, notwithstanding the law of 1861, he was still entitled to her earnings. Conner v. Berry, 46 111. 371 ; McMurty v. Webster, 48 ib. 123. The last decision was made in 1868. Then followed the law of 1869. In the first adjudication made under it, it was held that, as she now owned separate property, and enjoyed her own earnings, she must pay the costs incurred in attempting to maintain her rights. Musgrove v. Musgrove, 54 111. 186. In Howarth v. Warmser, 55 111. 48, the husband was declared to be discharged from his former liability to pay the debts of the wife contracted before marriage, by force of the legislation under consideration. A married woman may now be sued at law upon her con- tracts as to her separate property. Cookson v. Toole, 59 111. 515. She may now execute a valid lease of her separate real es- tate without joining her husband, and without his consent. Par- ent V. Callerand, 64 111. 97. 282 LAW OF HUSBAND AND WIPE. So diverse are the rights and interests, the duties, obliga- tions and disabihties of husband and wife now, that it would be most unreasonable to hold him still liable for the torts committed without his presence and without his consent or approbation. It he is not bound to pay her debts, why should he be responsible for her torts? When the ground-work is gone as to one, it is gone as to the other, and the structure of the past must fall before the innovations of the present. She is now, to a very great extent, independent of him, and is clothed with rights and powers ample for her own protection; and so far as her separate property is concerned, is responsible for her debts and contracts, with reference to it. They are not one, as heretofore. They are one in name, and are bound by sol- emn contract, sanctioned by both divine and human law, to mu- tual respect; should be of the same household, and one in love and affection. But a line has been drawn between them, distinct and inef- faceable, except by legislative power. His legal supremacy is gone, and the sceptre has departed from him. She, on the contrary, can have her separate estate; can con- tract with reference to it; can sue and be sued, at law, upon the contracts thus made ; can sue, in her own name, for injury to her person and slander of her character, and can enjoy the fruits of her time and labor free from the control or interference of her husband. The chains of the past have been broken by the progression of the present, and she may now enter upon the stern conflicts of life untrammelled. She no longer clings to and depends upon man, but has the legal right and aspires to battle with him in the contests of the forum ; to outvie him in the healing art ; to climb with him the steps of fame, and to share with him in every occu- pation. Her brain and hands and tongue are her own, and she should alone be responsible for slanders uttered by herself. Our opinion is, that the necessary operation of the statutes is to discharge the husband from his liability for the torts of the wife, during coverture, which he neither aided, advised nor coun- tenanced. The judgment is reversed and the cause remanded. YL WIFE'S SEPARATE ESTATE IN EQUITY. 1. HOW CREATED. BUCK V. WROTEN, 24 GRATT (VA.) 250. (1874). John L. Shultice, of Fredericksburg, died in August, 1849, having made a will in October, 1846, which was duly admitted to probate. After giving a house and lot in Fredericksburg to his grand-daughter, Sarah W. Rollow, and giving all the rest of his estate to his wife for her life or widowhood, and devising certain real estate to his son, Wm. Shultice, to be taken at the death of his wife ; by the 6th clause of his will he says : All the rest and residue of my estate, of whatsover nature, kind or description, not herein before disposed of, including all my slaves and the future increase of the females thereof, on the death or marriage of my said wife, I give and devise to my daugh- ter, Eliza Ann Genther, and her children, including her child by her first husband, William Rollow, deceased, to and for her and their sole and separate use and benefit, and not to be subject to or liable in any way whatsoever for the debts of her husband Henry D. Genther. Sarah W. Rollow, the child of Mrs. Genther, referred to in the will, married George W. Wroten, about 1850; and after the marriage, viz. : In May 1861, Wroten conveyed to Wm. A. Little, in trust, to secure debts, a farm called Gunnery Hall, which had been allotted to Mrs. Wroten, after the death of Mrs. Shultice, as a part of the estate she received under the will of John L. Shul- tice. It seems that Buck and others, creditors of Wroten, filed their bill in the Circuit Court of Spottsylvania, against Little and Wro- ten, to have the said deed of trust enforced. In May, 1871, the bill was amended making Mrs. Wroten, a defendant, and she and her husband filed an answer, referring to the will of John L. Shultice, and insisting that under that will she took a separate estate which could not be conveyed by her husband so as to de- prive her of her rights. 284 LAW OF HUSBAND AND WIFE. It appears that at the date of John L. Shultice's will, Mrs. Wroten, then Rollow, was about twenty years old, and the other children of Mrs. Genther were two daughters, of the age respect- ively, of ten and three years, and two sons of eight and six years. The cause came to be heard on the 6th of December, 1871, when the court held that farm called "Gunnery Hall" was the. separate estate of Mrs. Wroten, and that she was entitled to hold it freed from any claim of the trustee under the deed of trust from Wroten. And from this decree the plaintiffs applied to this court for an appeal ; which was allowed. Christian, J., delivered the opinion- of the court. , This case presents a single question. It arises upon the proper construction to be given to the sixth clause of the will of the testator, John L. Shultice, which is in the following words : "All the rest and residue of my estate, of whatsoever nature, kind or description, not hereinbefore disposed of, including all my slaves and the future increase of the females thereof, on the death or marriage of my wife, I give and devise to my daughter, Eliza Ann Genther, and her children, including her child by her first hus- band, Wm. Rollow, deceased, to and for her and their sole and separate use and benefit, and not to be subject to or liable in any way whatsoever for the debts of her husband, Henry D. Genther." According to the facts agreed, at the testator's death, his daughter, Eliza Ann Genther, had five children, three daughters and two sons, one of the daughters by a former marriage being about twenty years old, the other two being ten and three years old respectively, and the two sons aged respectively six and eight years. The first named daughter, Sarah W. Rollow, intermar- ried with George W. Wroten in the year 1850. Suit was brought in the Circuit Court of Spottsylvania, to subject the property de- vised to Sarah Rollow by her grandfather, under the sixth clause of his will above quoted, to the debts of her husband, George W. Wroten, which property it seems was conveyed by Wroten to Wm. A. Little, trustee, to secure certain creditors of said Wroten. The Circuit Court held, "that under the sixth clause of the will of her grandfather, John L. Shultice, the defendant, Sarah W. Wroten, took the property thus devised to her, for her sole and separate use and benefit and freed from all liability for the debts of her husband ; and that 'Gunnery Hall,' which is part of said devise, is the separate estate of the said Sarah W. Wroten, and was not lawfully conveyed to said Little, trustee, by the said wife's separate estate in equity. 285 ^eed of the i6th of May, 1861 ; and that said Sarah W. Wroten is entitled to hold and enjoy it, freed from any claim of said trus- tee under said deed of trust." From this decree an appeal was al- lowed by this court. The rule is well settled, as is abundantly shown by the au- thorities cited by the counsel for the appellant, to which many •other cases, English and American, might be added, that courts «f equity will not deprive the husband of his rights at law unless the words relied upon to create a separate estate, of themselves leave no doubt of the intention to exclude him. Schouler's Do- mestic Relations 191, and cases there cited. Mr. Justice Story lays down the rule in these words : "The purpose" (to exclude any present or future husband,) "must clearly appear beyond any reasonable doubt; otherwise the hus- band will retain his ordinary legal and marital rights over it." 2 Story Eq. § 1381. See also. Lamb v. Milnes, 5 Ves. R. 517; Brown v. Clark, 3 Ves. R. 166; Rich v.Cochell, 9 Ves. R. 370, 377 ; Massey v. Parker, 2 Myline & Keen, R. 174. In the '.ast mentioned case the Master of the Rolls said: "The cases require very distinct and unequivocal expressions to create a separate interest in the wife ; and the husband is not to be excluded except by words which leave no doubt of the intention." In Tyler v. Lake, 2 Russ. 4 Mylne 183, Lord Brougham said: "I take the principle to be now thoroughly established that courts of equity will not deprive the husband of his rights at law, unless there appears to be a clear intention manifested by the testator that the husband should be so excluded." The following Ameri- can cases, among others, establish the same doctrine: Meredith V. Ozven. 4 Sneed's R. 223 ; Gilliam v. Welch, 4 Dev. Law R. 286; Ashcraft v. Little, 4 Ired. R. 134; Logan v. Thrift, 20 Ohio St. R. 62. Let us now apply this rule, which must be taken as fairly settled, to the case before us. The devise is by the grandfather to his daughter "Eliza Ann Genther and her children * * * to and for her and their sole and separate use and benefit, and not to be subject to or liable in any way whatsoever for the debts of her husband Henry D. Genther." It is clear that under this clause there is a plain and distinct mtention to exclude the marital rights of the husband of hfs daughter, Eliza Ann Genther. But is there no doubt of his in- tention to exclude the future husbands of his granddaughters, none of whom were married, and two of whom were infants nf • / 286 LAW OF HUSBAND AND WIPE. very tender years ? The true construction is, in my opinion, quite the other way. The testator is providing for his daughter and his grand children, some of whom are males and some females. He devises his property to this family, males and females, "to their sole and separate use, and not to be subject to or liable in any way whatever for the debts of Henry D. Genther, the hus- band of his daughter, and the head of that family. It was against his {Genther' s) debts and liabilities that he was seeking to pro- tect the property, and secure it for the use of his daughter and grand-children. There is no allusion made to the marriage of his grand-daughter, nor is there anything to show that the testator had present in his mind the right which their future husbands would obtain in their property. There are certainly in this devise no words of exclusion as to the future husbands of his grand-chil- dren, while the rights of the husband of his daughter, Henry D. Genther, are excluded in express terms. This shows that the mind of the testator was directed to the exclusion of the marital rights of his daughter's husband, but that no such intention was manifested towards the future husbands of his grand-daughters. This view, as to the intention of the testator, is strengthened and confirmed by the fact that, in the third clause of his will, in which he made a special devise of a house and lot in the town of Fredericksburg to the only one of his grand-daughters (Sarah Rollow, now Mrs. Wroten), who had then attained the marriage- able age, he does not exclude the marital rights of any future hus- band she might have, by giving her a separate estate in that prop- erty. To say the least of it, and under the established rule it is suf- ficient to say this, that, looking to the whole will, there does not appear a clear intention and decided piirpose on the part of the testator to exclude the marital rights of the future husbands of his grand-daughters. In the absence of such clear intention and decided purpose, the marital rights of the husband are not excluded and must at- tach. We are therefore of opinion that the decree of the Circuit Court of Spottsylvania must be reversed. YIL WIFE'S SEPARATE EARNINGS AND POWER TO TRADE 1. AT COMMON LAW. \ SKILLMAN V. SKILLMAN, 15 N. J. EQ. 478. (1863). Haines, J. — The complainant, by her bill, claims to have an equitable interest in a certain house and lot of land, the legal title to which was in her husband at the time of his death, and she seeks to have it protected against a judgment obtained by the de- fendant, John G. Skillman, against her husband, in his lifetime, on a bond and warrant of attorney to confess judgment, upon the ground that the judgment was without consideration and fraud- ulent and void. The equity of the bill rests in allegation of a right and interest of the complainant in the house and lot, and in the fraudulent intent of the defendant, John G. Skillman, in procur- ing the judgment. The charge of fraud is fully denied by the an- swer in response to the bill ; so that if the complainant has any in- terest in the property, and was in a situation to question the valid- ity of the judgment, on this explicit denial of the fraud charged the injunction might have been properly dissolved. But the case made does not show such an interest in the property as would entitle her to protection against the judgment, even if it were fraudulent. Her claim is not based on a right of dower, and if it had been it would have needed no protection in this form, as the judgment against her husband could not affect her dower. But she claims by a right in equity paramount to the legal title of her husband. She insists that, having negotiated for tbp purchase of a lot of ground and for the building of the house, and paid a con- siderable portion of the purchase money, a trust results to her. On examining the allegations of the bill, it appears that she, with the knowledge of her husband, negotiated for the purchase of the lot, and that it was conveyed to him, and he paid the purchase money ; that afterwards a contract was made for the erection of a small house on the lot, at the cost of six hundred and seventy-five dollars, of which sum five hundred dollars 'Were secured by his bond and his and her mortgage on the property, and the residue, 288 LAW OF HUSBAND AND WIPE. one hundred and seventy-five dollars, paid to the contractor. It is not alleged to have been paid by her, and the presumption is that it was paid by her husband. Thus far the whole considera- tion money on the purchase of the lot and the cost of the building were paid and secured by the husband. After this, and until May, 1854, she paid the yearly interest on the bond and mortgage and one hundred dollars of the principal. She afterwards con- tributed to the monthly payments on two shares of Mechanics Building and Loan Association, purchased by him, until he be- came entitled to a loan of four hundred dollars, which was taken and secured by a mortgage on the house and lot, and with that money the residue of the sum secured by the original mortgage was paid. She afterwards contributed to the monthly payments due by way of interest on the loan, until the value of the two shares were so enhanced as to be nearly sufficient to pay off the^ last mortgage, all of which payments so made by her were almost entirely from her own earnings, her husband contributing but little towards it. Admitting the entire truth of all these allega- tions, they fail to establish a resulting trust or to show any interest in the property paramount to the title of her husband. By the common law, the earnings of the wife, the product of her skill and labor, belong to the husband. They do not become the property of the wife, even in equity, without a clear, express, irrevocable gift or some distinct affirmative act of the husband divesting him- self of them or setting them apart for her separate use. There is no allegation of any such act here. She was permitted to apply the product of her labor, not to her own use, but to the payment of her husband's debts. Her object was truly praiseworthy and her efforts provident. She meant to secure a home for herself and her family ; and it may be regretted that they had not taken proper measure to accomplish that purpose. As the business was transacted, the title to the house and lot was in her husband, and the purchase money and the cost of building paid by him, and out of money belonging to him. The legal and equitable title vested in him. There was nothing done or suffered to divest him of such title, even as between him and his wife, much less as between him and his creditors. The bill was properly dismissed, and the decree of the chancellor must be affirmed, but, under the peculiar circumstances of the case, without costs. WIPE'S EARNINGS, POWER TO TRADE. 289 2. UNDER STATUTES. HAWKINS V. P. & W. RY., ilg MASS. 596. (1876). Contract, with a count in tort, for the loss of certain articles of personal property, delivered to the defendant corporation for transportation from Worcester to Providence, the plaintiff being a passenger at the time. At the trial in the Superior Court, before Pitman, J., it ap- peared in evidence, on the part of the plaintiff, that, prior to the bringing of this suit, she and her husband lived together as hus- band and wife; that she and her husband had worked in a mill, and that he had delivered to her from time to time his earnings, and that she had mingled with them her own earnings; that the articles mentioned in the declaration, and described therein as clothing suitable for her, were by her purchased and used for her personal apparel, by consent of her husband, with money given her by him from the fund formed by their joint earnings. The defendant asked the judge to direct a verdict for the defendant; the judge refused so to do, and the defendant excepted. The defendant asked the judge to instruct the jury as fol- lows: "If the plaintiff purchased the goods with her husband's per- mission, and with his money, she cannot recover. If the plaintiff was earning money, and mixed "it as earned and received with her husband's earnings, and from their joint earnings she with his consent, purchased the property, she cannot recover. "If a married woman, not having filed a certificate under the statutes, mingles her earnings with those of her husband, clothing purchased by her from the joint fund would be property of her husband." The judge refused so to rule, and instructed the jury as fol- lows : "If the wife purchased the articles with the husband's money, given her by him, or with her own money, or with money from a fund created by mingling the earnings of wife and hus- band, she would have such a title to these articles of her personal apparel as would enable her to recover their value in this action." The jury returned a verdict for the plaintiff; and the defend- ant alleged exceptions to the refusal to rule as requested, and to the rulings given. Ames, J. — The statutes which from time to time have been enacted in this commonwealth, for the purpose of enlarging the rights and privileges of married women, have not in terms made ; 290 LAW OP HUSBAND AND WIFE. any specific regulations in regard to the ownership of their wear- ing apparel. Except in cases where the wife herself purchases it with her oWn separate money or earnings, that matter remams exactly as it stood at common law. At common law, the husband is bound to maintain the wife, and to provide her with suitable clothing appropriate to their degree and his own circumstances and social position. If the articles of clothing and personal orna- ment appropriate for her are purchased with his money or upon his credit, the fact that they are selected and purchased by her, and are intended for her personal and exclusive use, does not ren- der them any the less his property. In this respect, the clothing of the wife comes under the same general rule as the clothing of the minor children in the same family. The provision of the Gen. Sts. c. 96, § 4, that "the articles of apparel and ornament of the widow and minor children of a deceased person shall belong to them respectively,"' furnishes a strong implication that, without such a provision, they would constitute a part of the assets of the deceased person's estate, and would be liable as such to be sold for the payment of his debts. It was to prevent the distress and in- venience in this respect, which would result from the common law rule as to such property, that this statute regulation was found to be necessary. The provision of the Gen. Sts. c. 133, § 32, among the "articles of the debtor" exempt from attachments for his debts, includes the "necessary wearing apparel of himself and his wife and children ;" a provisiori) which would be wholly unnecessary if these articles were not his property. The property sued for in this action consists mainly of the plaintiff's personal clothings and if it had been purchased by her with her own money, that is to say, with money which was literal- ly her own, and belonged to herself separately and exclusively, the action in her name might well be maintained. But we find noth- ing in the facts reported to support that view of the case. On the contrary, we find that the relation in which she and her husband stood to each other was exactly the ordinary relation of husband and wife as it stood at common law, unaffected by any of the re- cent legislation upon that subject. It does not appear that she had any separate property of her own, or that she was following any trade or business of her own, requiring a certificate to be filed in pursuance of the St. of 1862, c. 198. She and her husband worked in the same mill, and under the St. of 1874, c. 184, § i, the work and labor of a married woman shall be presumed to be on her separate account. Under that statute, therefore, she could WIFE'S EARNINGS, POWER TO TRADE. 291 have kept her earnings separate, if she saw fit to do so. But this is a privilege which she might waive, and her allowing them to be mingled with those of her husband would be prima facie evi- dence that she had done so. Kelly v. Drezv, 12 Allen, 107. The money with which she purchased the clothing described in the declaration appears from the bill of exceptions to have been given to her by her husband frorh a fund made up of her and his earn- ings. We see no ground on which we can say that this joint fund, or any part of it, was her separate property. She was the custo- dian, but did not thereby become exclusively the owner of it. And, as we must assume that this fund was used in paying the ne- cessary expenses of the family, the presumption referred to in the statute last quoted is effectually rebutted. The husband was legally responsible for these expenses, and the fund was his prop- erty. The case does not resemble, as it is suggested by the plain- lifli's counsel, the case of a wilful confusion of goods. The money given to her from that fund was her husband's money and not hers, intrusted to her as his agent, and, in pursuance of his legal obligation to support and clothe her, to be used in payment of ar- ticles which he was bound to supply, and which might properly be charged to him. There can be no valid gift of money or prop- erty by the husband to the wife. Gen. Sts. c. 108, § 10. Thoni' son v.O'SitlliTan, 6 Allen, 303. Baxter v. Knowles, 12 Allen 114. It would remain his property notwithstanding such gift. In this view of the case, the instructions requested' by the de- fendant should have been given, and those actually given were in- correct and inappropriate. Exceptions sustained. YIIL ANTE-NUPTIAL SETTLEMENTS ^ HENRY V. HENRY, 27 OHIO ST. 121. (1875). Whitman, J. — This cause comes by reservation from the District Court of Putnam County, ordered at the August term, 1871. The case stands upon a general demurrer, filed below by the defendants in error to the following petition filed below by the plaintiff in error. The Court of Common Pleas sustained the de- murrer, and dismissed the case at the costs of the plaintiff. Ex- ceptions were taken to this ruling and judgment, and the cause appealed to the District Court. The petition is as follows : "Your petitioner, the said John Henry, respectfully repre- sents that on the nth day of July, a. d. 1861, often before and many times thereafter, one Rebecca M. Knop, then an unmarried woman, agreed with and promised your petitioner by verbal contract, that, in consideration that your petitioner would marry the said Rebecca M. Knop, and enter upon and make valuable improvements on the real estate hereinafter described, that the said Rebecca M. Knop would convey by deed duly executed in fee-simple to your said petitioner the following described prem- ises, to wit. : The east half of the southeast quarter of section three, township two north, of range seven east, in Putnam County, Ohio — she, the said Rebecca M. Knop, being then the owner in fee-simple of said premises. Your petitioner further represents that under and by virtue of said contract your petitioner and the said Rebecca Knop, on the nth day of October, a. d. 1861, were joined in lawful marriage as husband and wife. "That on or about the fifteenth (15th) day of April, a. d. 1862, your petitioner and his said wife, the said Rebecca M. Knop, together and under said contract moved upon, said lands ; that 3'our petitioner, under and by virtue of said contract, has made lasting and valuable improvements upon said premises, and that he has fully and faithfully complied with the terms of said con- tract upon his part; that on said 15th day of April, I862, under sa'id contract, and by and with the voluntary consent, and at the ANTE-NUPTIAL SETTLEMENTS. 293 special instance and request of said Rebecca M. Knop, your peti- tioner took possession of said premises; that he is now and has ever since been in possession of the same, and has made lasting and valuable improvements thereon as aforesaid ; that on the 13th day of June, 1864, said Rebecca Knop, the said wife of your peti- tioner, desirous of and anxious to carry out the provisions, and to more fully comply with the terms of said contract upon her part, by conveying said premises to your petitioner, did voluntarily exe- cute and deliver to the said Abraham T. Bennett, in trust for the benefit of your petitioner, an instrument in writing purporting and intended by her to be a deed of conveyance in fee-simple of said lands to the said Abraham T. Bennett, as trustee for the pur- pose and with intent that the said Bennett ' should convey said premises in fee simple to your petitioner, and that thereby the pro- visions of said contract should be carried out as aforesaid on her part. "That your petitioner did not join with his said wife, the said Rebecca M. Knop, in the execution of said instrument of writing made by her in her said effort to convey said premises to the said Bennett, trustee, as aforesaid, for the purpose aforesaid, your peti- tioner and the said Rebecca M. Knop, his said wife, being at the time ignorant of the legal necessity of such joining, and were ad- vised, at the time of so making such instrument, that it was not necessary for said petitioner to join with his said wife in said in- strument of conveyance. "Your petitioner further represents that the said Abraham T. Bennett, at the voluntary and special instance and request of the said Rebecca M. Knop, and as said trustee, and for the pur- pose and with the intent aforesaid, did on said 13th day of June, 1864, execute and deliver to your petitioner an instrument of writ- ing purporting and intended to be a deed of conveyance in fee- simple of said lands to your petitioner ; that on the 28th day of Oc- tober, 1864, said instrument of writing was duly recorded in the recorder's oliEce of Putnam County, Ohio ; that the said respond- ent, Mary E. Henry, is a minor, of the age of seven years, and the legitimate child of your petitioner and the said Rebecca M. Knop, being the sole issue of said marriage. That on the 30th day of September, 1869, the said Rebecca M. Knop departed this life, leaving the said Mary E. Henry her sole heir. Your petitioner, therefore, prays that a writ of subpoena may issue against the said Abraham T. Bennett and Mary E, Henry, minor heirs of said Rebecca M. Knop, deceased, and that 294 LAW OF HUSBAND AND WIFE. they may be made party defendants hereto; t|iat a guardian ad litem for the said Mary E. Henry may be appointed herein ; and that upon the final hearing of this action, the fee-simple^ in the premises aforesaid may be judged and decreed in the said peti- tioner ; that the said contract for the conveyance of said premises to the said petitioner may be specifically performed, and for such other and further relief as equity may require." The errors assigned are as follows : I. Because said court erred in sustaining the demurrer to said petition of said plaintiflE. II. Because said court erred in dismissing said petition. III. Because said court erred in rendering judgment against the said plaintiff for costs. Upon the facts as alleged in the petition, it is insisted by the plaintiff in error that he is entitled to have a specific performance of the verbal antenuptial contract. This contract, however, when examined, is simply an "agree- ment made upon consideration of marriage." If so, it is void un- der section 5 of the statute of frauds and perjuries, S. & C. 660, because it was verbal. It is, however, sought to avoid the effect of the statute by a denial of the fact that it was "an agreement made upon consider- ation of marriage ;" and in support of such denial the plaintiff in error relies upon the fact that, in addition to his promise to marry, he bound himself to move upon and improve the premises. But the contract is an entire one, and the intended marriage entered into and formed a part of the whole consideration. The one con- sideration can not be separated from the other; both depend on the same fact^ and but for the intended marriage no contract whatever would have been made. The Supreme Court has decided this question in the case of Finch V. Finch, 10 Ohio St. The court says, on page 505 : "The antenuptial agreement set forth in the second defense alleged in the answer was clearly an agreement upon consideration of marriage. It is true, mar- riage was not the sole consideration for the agreement, on the part of the intended wife, that she would not demand dower in case she survived her intended husband; his agreement not to exercise the rights, in respect to her property, which the mar- riage would confer, constituted an additional consideration for the agreement on her part; but the agreement was entire; the intended marriage entered into, and formed a part of the entire ANTE-NUPTIAL SETTLEMENTS. 295 consideration on both sides, and without it, the agreement would never have been made." It is evident that the additional considerations in the ante- nuptial contract in the above cases are more potent and more easily distinguishable from the consideration of the agreement of marriage, than is the supposed additional consideration in the case before us. And yet the Supreme Court holds the contract clearly to be an entire one, and, in law, based upon a contract or agreement in consideration of marriage only. But it is further contended by the plaintiff in error that he was bound by the agreement to enter upon the land, and make valuable improvements thereon; and that on the 15th day of April, 1862, he, in company with the said Rebecca M. (then his wife), under and by virtue of said contract, moved upon said lands, and that he, with the knowledge and consent of the said Rebecca M., and at her instance and request, took possession of said premises, and is now, and hath ever since been, in the pos- session of the same, and has made lasting and valuable improve- ments thereon, and that he has fully complied with the terms of the agreement on his part. And that by reason thereof there has been part performance of the contract, and so the contract to convey has been taken out of the statute of frauds'. We are unable to perceive any legal ground for such con- clusion. The act of 1861 (now repealed), and the act of 1866 as to the separate property of married women, has no bearing upon the question involved in this case. And the law is well set- tled that the marriage itself in the absence of actual fraud is not such a performance as will take the contract out of the statute, for the plain reason, as said by our Supreme Court in the before- cited case, page 506, "otherwise, the statute would be wholly nugatory; for, so far as the fact of marriage is concerned, such agreements are always performed before they become the sub- jects of judicial consideration, and no case would ever be within the statute." The only remaining ground on which beside the fact of the marriage it is claimed that a part performance has been made, is the entry upon the lands, and the continued possession thereof and the erection of lasting and valuable improvements. There is no pretense that by reason of this any fraud has been committed upon the plaintiff in error. He, with his wife, simply took pos- session by her consent of her land, and he as her husband made 296 LAW OP HUSBAND AND WIFE. improvements, for the common use and benefit of both. Those improvements he has the legal right to have the use and benefit of, together with the land during his life, as tenant by the curtesy. These improvements were not made on his land for his own use alone, nor can he be deprived of them, as in cases whereby de- fect of title or superior equities sometimes hippens ; in such cases, a court of equity interferes on the ground that unless the party be paid for his improvements, or allowed their use, a fraud will be committed upon him. But in the case before us no fraud is possible, and there is no apparent equity in favor of the plaintiff in error, as against the minor child as heir at law of his deceased wife. Nor in our opinion does any equity arise, as counsel seem to suppose, because the said Rebecca M., after marriage, generously determined to convey the premises in fee through Bennett, as trustee, to her husband in fulfillment of the antenup- tial contract ; nor because by her ignorance of law and of improper legal advice, that generous intention was frustrated, and her deed was a nullity for want of her husband having joined in the same as co-grantor. The ante-nuptial agreement was, as we have said, utterly void, not being in writing; and also was an entire con- tract. So that from this void contract neither party acquired any rights whatever as to the land in dispute, either legal or equitable. The marriage did not revive the contract, and the parties to it when married were in no manner in law or equity benefited or injured thereby. They stood just as if it had never existed. Now, this being so, what postnuptial ground of equity in favor of the plaintiff is there ? The wife attempted to convey the land to her husband, but she wholly failed in such attempt. Her deed was void, and upon such void act there can not be based either legal or equitable rights to have a perfect act done, or con- veyance or decree to effect what she had thus illegally tried to do in favor of her husband. He could not have the deed corrected ; it was not a case embraced in the statute. It was not such an in- strument as a court of equity could cause to be perfected, for it is not such a contract or agreement touching her separate prop- erty that for any purpose whatever a court is permitted to aid. Besides, it was simply an attempt by her to sell and convey in fee her real estate. She could not do this without her husband join- ing with her. Had it been a contract to lease her land under the statute, and the lease had been imperfect, a court could have com- pelled its correction and perfection. What is left, then, to rest the equity claimed by the plaintiff in error upon ? Merely the fact ANTE-NUPTIAL SETTLEMENTS. 297 that the husband while living with his wife, on her land, chose to place lasting improvements thereon, as much for his own benefit as hers, and which during his life he has the use of. He having no legal caim to the land as owner, except as tenant by the cur- tesy, can found no right on any absolute ownership of the land. Surely the right to live upon, use, and receive the profits of his wife's lands, and also of all his improvements, during his life, ought in equity to be held as equal in benefit and value to the cost of such improvements. And to attempt to superadd an alleged equity by reason of such improvements, which can be by decree made to give the entire property to the husband, seems to us to do violence to every principle of law and equity. We are of opinion that there was no error in the court be- low, and that the demurrer was properly sustained. The judgment of the Court of Common Pleas is affirmed with costs. IX. POSTNUPTIAL SETTLEMENTS, PUTNAM V. BICKNELL, i8 WIS. 351. (1864). Appeal from the Circuit Court for Jefferson County. Silas M. Sears and Betsy M. Sears, his wife, executed a mortgage to the plaintiff upon certain land in said county. After- wards, Silas Sears having died, and Betsy M. Sears having in- termarried with one Bicknell, this action was brought to foreclose the mortgage ,and said Betsy M. Bicknell, Lowell C. and George Sears, sons and only heirs at law of Silas Sears, Luther B. Green, guardian of said George (who was a minor), Gilbert Allen, ad- ministrator of the estate of said Silas and Edwin Lloyd, were made defendants. A judgment of foreclosure and sale having been rendered, and a sale made, and the surplus moneys, amount- ing to $375, returned into court, an application was made to the court by the defendant Green as guardian of George Sears, and in his own behalf as assignee of Lowell C. Sears, for an order award- ing him such surplus, or so much thereof as he might be entitled to. Mrs. Bicknell also applied for an order awarding the whole of such surplus to her ; and accompanied her application by an affidavit which stated that the mortgaged premises were pur- chased by Silas Sears with money and property received by her from her father, and which remained hers until such purchase; that said Silas held the premises in trust for her during her life- time until just previous to his death, when he conveyed it to her by deed (executed August i, 1859), which is attached to the affi- davit; that there was a second mortgage on record, executed in January, 1858, by said Silas and the affiant to one Ring, to secure the payment of $100 in two years from the date just mentioned, with interest ; that after the death of said Silas, affiant, believing herself to be the sole owner of said premises, subject to the mort- gage thereon, paid the mortgage to Ring, and made certain im- provements on the place at her own expense, the whole amount- ing, with the mortgage debt, to about $200 ; and that said Silas, at his death, did not own any other property except about one hundred dollars' worth of land, which had been sold by the ad- ministrator, and less than a hundred dollars' worth of personal POSTNUPTIAL SETTLEMENTS. 299 property, and she had received no dower out of said estate. The defendant Lloyd also applied to the court for an order awarding him out of said surplus $200, with interest from January 11, 1862, which he alleged were due him for money lent on that day to Mrs. Bicknell (then Mrs. Sears), to enable her to pay off the Ring mortgage and make necessary improvements on the premises. The petjition states that the money so lent was actually applied to the purposes named, and that its repayment was secured by a note and mortgage upon said premises, executed by Mrs. Sears on the day the loan was made. The circuit court made an order directing the mortgage to Lloyd to be first paid out of said surplus and one third of the bal- ance to be paid to Mrs. Bicknell, and the other two thirds to George Sears. From this order the defendant Green appealed. By the Court, Dixon, C. J. — Though void at law, an absolute conveyance of real or personal property fron; the husband direct- ly to his wife is good in equity, and sufficient, so far as the form is concerned, to divest the husband of sucfh property, and to vest the same in the wife, as against all persons save the creditors of the husband, especially when the transfer is fairly made, upon a meri- torious or valuable consideration. Wellingsford v. Allen, 10 Peters 583 ; Deming v. Williams, 26 Conn. 220 ; Slanning v. Style, 3 P. Wms. 334; Lucas v. Lucas, i Atk. 270; Freemantle v. Bankes, 5 Ves. 79 ; Battersbee v. Farrington, i Swanst, 106 ; La- tourette v. Williams, i Barb. 9; Neufville v. Thompson, 3 Edw. Ch. 92; McKennon v'. Phillips, 6 Whart, 571; Kee v. Vasser, 2 Ired. Ch. 553; Stanwood v. Stanwood, 17 Mass. 57; Phelps v. Phelps, 20 Pick. 556; Adams v. Brackett, 5 Met. 280; Jones v. Abenchain, 10 Gratt, 259; Walter v. Hodge, 2 Swanst. 97; Moore V. Freeman, Bunbury, 205 ; Lady Arundel v. Phipps, 10 Ves. 146 ; Shepard v. Shepard, 7 Johns. Ch. 57; 2 Story's Eq. § 1204. The ^ doctrine is thus stated by the Supreme Court in Willingsford v. \ \ Allen ; "Agreements between husband and wife during cover- V ture, for the transfer from him of property directly to the latter, are undoubtedly void at law. Equity examines with great cau- tion before it will confirm them. But it does sustain them when a clear, satisfactory case is made out, that the property is to be ap- plied to the separate use of the wife. Where the consideration of the transfer is a separate interest of the wife, yielded up by her for the husband's benefit, or that of their family, or which has been appropriated by him to his uses; where the husband is in a situ- ation to make a gift of property to the wife, and distinctly sepa- 300 LAW OF HUSBAND AND WIFE. rates it from the mass of his property for her use — either case equity will sustain, though no trustee has been interposed to hold for the wife's use." In this case it appears from the petition of Mrs. Bicknell, ver- ified by her oath, and which comes up to us undisputed, that the mortgaged premises were purchased by her former husband, Silas Sears, "in his own name, out of and with the funds, money and property received by her from her father, and which remained and was, till such purchase, her property, and that said Silas Sears held said property in trust for her during his lifetime, after the purchase thereof, until just previous to his death," when he con- veyed the same to her by deed, the efifect of which is the point chiefly controverted on this appeal. This is a proceeding in equity to determine the claims of the contending parties for the surplus moneys arising from a sale of the premises under a mort- gage executed and recorded before the conveyance to Mrs. Bick- nell, then Mrs. Sears, after satisfaction of that mortgage. Enough has already been said to show that the conveyance from Mr. Sears to Mrs. Bicknell, no creditors appearing to impeach it, was valid in equity. Certainly it was executed upon a valuable and meri- torious consideration; and as against the heirs, the appellants here, she was entitled to the whole surplus. But as she does not appeal, that error of the Circuit Court must remain uncorrected. But as to the mortgage to Lloyd, a question fairly involved in the appeal, it follows from the same view of the equitable rights of the parties, that the court was correct in awarding to him the sum found due upon it. Having an estate in equity, Mrs. Bicknell could undoubtedly mortgage it; and such mortgage will be sus- tained as a valid incumbrance by a court of equity. The order must therefore be affirmed, with costs to be taxed against the appellants and in favor of the defendant Lloyd. X. RIGHTS AND LIABILITIES OF SURYIYING HUSBAND. 1. RIGHT OF ADMINISTRATION. JUDGE ETC.v. CHAMBERLAIN, 3 N. H. 129.(1824). This was an action of debt upon a probate bond, given by the defendant upon his taking upon hitnself the burden of execut- ing the will of Moses Chamberlain, deceased. The defendant was defaulted, and upon hearing of the parties as to the sum, for which execution ought to be awarded, it appeared, that the said Moses, the testator, by his will, gave to his daughter, Rhoda $100, to be paid to her in one year after the decease of her mother. Rhoda having married Lemuel Wheelock, died without issue, after the decease of her father, but before the decease of her mother, leaving several brothers and sisters. The mother of Rhoda died in the year 1819. The question was, whether the hus- band of Rhoda was entitled to the said legacy? Richardson, C. J. — At the common law, administration of the estate of a person dying intestate, belonged of ' right to no particular person, but it was in the discretion of the ordinary to grant administration to whom he saw fit. But the statute of the 21 H. VIII. gave the administration to the next of kin; and when there happened to be more than one of equal akin, he, who first took administration, was entitled to the surplus of the personal estate, after paying the debts. The law thus remained, until, by the statute of 22 and 23 Car. IT. cap. 10, administrators were made liable to make a distribution. But that statute made no express mention of a husband's administering to his wife ; and as no per- son could be in equal degree to the wife with the husband, he was held not to be within the act. And the statute of 29 Car. II. cap. 3, sec. 25, expressly declared, that the husband might demand .administration of his deceased wife's personal estate, and recover and enjoy the same, as he might have done before the statute of 22 and 23 Car. II. cap. 10. Since that time, it seems never to have been doubted, that a husband may administer upon his de- . ceased wife's estate, and that he is entitled, for his own benefit, to 302 LAW OP HUSBAND AND WIFE. all her chattels real, things in action, trusts, and every other spe- (jies of personal property, whether actually vested in her and re- duced to possession, or contingent, or recoverable only by action. And in case the husband dies before he administers, the right to • administer, and to the property, goes to the heirs of the husband. Coke Litt. 351, note, 6 John. 112, Whitaker v. Whitaker; 4 Coke 51, Ognel's case, i Wilson, 168, Elliot v. Collier, Roll's Ab. 345 ; Comyn's Digest, "Baron & Feme" E. 3 ; Orphan's legacy 248, Ba- con's Ab. "Baron & Feme" C; Loveless on Wills 2, Wentworth 383, P. Williams 380; Cro. Car. 106, Johns v. Rowe. We are therefore of opinion, that the husband of Rhoda is 'entitled to the legacy given her by her father. 2. CURTESY. FERGUSON v. TWEEDY, 43 N. Y. 543. (1871). Appeal by the plaintiff from a judgment of the Supreme Court rendered at a General Term in the Fourth District, afifirming a judgment rendered by Mr. Justice Bockes, at Special Term on a trial before him without a jury, dismissing the complaint of the plaintiff's testator with costs. The action was brought, originally, by Harvey D. Ferguson, the plaintiff's testator, for equitable relief upon the following facts, proved and found by the judge before whom the cause was tried, to wit : Henry Green, of the County of Montgomery, was, prior to and. at the time of his death, the owner in fee-simple of a farm of land in the town of Florida in the County of Montgomery, con- taining about 300 acres. He died in September, 1824, leaving a will, dated August 22, 1824, which was duly proved and recorded. By his will he gave his farm to George and Maria Green, his two illegitimate children "begotten on the body of Mary Brewer," in fee equally to be divided between them, share and share alike, and declaring it to be his intent that if either said George or Maria should die without lawful issue, then the, survivor should take the whole, to hold forever. After the death of Henry Green, the two illegitimate children named went into possession of the farm aforesaid, claiming to own the same under the will. In February, 1830, a creditor of George Green, commenced proceedings for re- lief under the statute against absconding, concealed and non-resi- dent debtors, and such proceedings were had thereon that trus- RIGHTS OP SURVIVING HUSBAND. 303 tees were appointed for all the creditors of George Green, with the power and authority given them by law, and they, having been duly qualified, proceeded in the discharge of their duties and gave public notice as required by statute that they would sell at public auction on the 7th of August, 1830, all the real estate of George Green in the town of Florida, being his interest in the farm of 300 acres, derived under the will of Henry Green, and in pursuance of this notice a sale was had and the same was sold and struck off to one Samuel Green for $525, he being the highest bidder, and on the 9th of December, 1830, the trustees conveyed to Samuel G., the premises aforesaid by the description of "all the right, title and interest of George Green aforesaid, of, in and to that certain farm, piece or parcel of land situated, lying and being in the said town of Florida, which was given and bequeathed to the said George Green, by the last will and testament of his father, Cap- tain Henry Green, being known and distinguished on a map ano survey thereof made by James Frost on the 27th day of October, 1830, as lot No. 107, lot No. 92, and the southwest half of lots Nos. 88 and 89, reference to said map and survey being had will more fully appear, etc. This deed was duly acknowledged, after- ward duly recorded in the clerk's office of the County of Mont- gomery : and the various proceedings resulting in the sale are also on file in his office. After the sale of the interest of George Green as before stated, and in the year 183 1, Maria Green and Samuel G., made partition of the farm so devised by Henry Green, by mutual partition deeds, untif either George or Maria should die without issue and no longer. Maria Green married Harvey D. Ferguson, the original plaintiff, on the ist day of November, 1831, and died intestate on the 29th of August, 1832, leaving one child, Maria A. Ferguson, now Maria A. Tweedy, one of the defendants, her only heir-at- law, who was born on the 29th of August, 1832. George Green died intestate in 1839 and without issue, having never married. On the i2th of December, 1853, Maria A. Ferguson, the daughter of Maria Green, married James Tweedy. Immediately upon the partition between Maria Green and Samuel G. Green, as before stated, Samuel G. went into the actual and separate possession of that part of the farm of 300 acres described in the deed of Maria Green to him, and remained in such possession until it came to the possession of William Griffith, as hereinafter mentioned, and the part thereof described in the partition deed of Maria Green, after such partition, went into the separate possession of Maria, and she continued in such separate possession until her death. 304 LAW OF HUSBAND AND WIFE. Neither Maria Green nor the plaintiff, at any time, during her coverture under the marriage between them, nor at any other time after the execution of the deed from Maria to Samuel G. Green, had any possession of the premises described in such last mentioned deed, or of any part thereof, or received any of the rents and profits thereof. On the 24th of November, 1855, the defendant, William Grif- fith, purchased, and Samuel G. Green conveyed to him by deed, the premises then in possession of Samuel G. Green, which deed was on the 3d day of Decemh^er, 1855, recorded in the clerk's office of the Coimty of Montgomery. The portion of the 300 acres consisting of about 152 acres mentioned in the partition deed of Samuel G. Green to Maria Green, dated April nth, 1831, from the death of Maria Ferguson to the time of the execution of the deed of the same date by Har- vey D. Ferguson and wife, to Maria A. Tweedy was in the exclu- sive possession of Harvey D. Ferguson, he claiming the same as tenant by the curtesy. In November, 1862, Harvey D. Ferguson and wife, gave for the consideration of $1,000, a deed to Maria A. Tweedy of the premises described in the partition deed from Samuel G. Green to Maria Green, and since the execution of that deed Maria A. Tweedy has had the possession thereof. Harvey D. Ferguson was not a party to or in any way connected with the suit of Tweedy and wife against Samuel G. Green, mentioned below. In 1854, Mrs. Tweedy commeftced an action to recover of Samuel G. Green, the portion conveyed to and occupied by him, on the ground that she, as heir of her mother, was entitled under the will to the whole, George Green having died without issue. Judgment, however, was given in her favor for but an undivided half, it having been held, as is alleged, that the estate of George Green became a fee-simple, absolute upon the death of Maria Green in his lifetime, the limitation over to her being only in case she survived him. The original plaintiff, therefore, brought this action against Mrs. Tweedy, and Griffith claiming that he was en- titled to possession, and rents and profits, as tenant by the curtesy, in which he was defeated in the Supreme Court, and appealed here. F01.GER, J. — This action cannot be sustained unless Harvey D. Ferguson, the testator, had in his lifetime an estate as tenant by the curtesy in the premises, or some part of them, which were recovered in the action of the respondents against Samuel G. RIGHTS OP SURVIVING HUSBAND. 305 Green, judgment wherein was rendered on the ist of February, 1 86 1. To establish such tenancy there were needed four things: Marriage, issue of the marriage, death of the wife, and her seizen, during marriage, of the premises in question. There is no dis- pute but that all of these existed, save the last. It is, a general rule that to support a tenancy by the curtesy there must be an actual seizen of the wife. Mercer's Lessee v. Selden, i How. U. S. 37-54. The rule is not inflexible. There are exceptions to it. The possession of a lessee under a lease reserv- ing rent, is an actual seizin, so as to entitle the husband to a life estate in the land as a tenant by the curtesy, though he has never received or demanded rent during the life of his wife. Ellsworth V, Cook, 8 Paige, 646. Wild, unoccupied or waste lands may be constructively in the actual possession of the wife. 8 J. R. 271. A recovery in an ejectment has been held equivalent to an actual entry. 8 Paige, supra. And it has been held that, where the wife takes under a deed, and there is no adverse holding at the time, that actual entry is not necessary. Jackson v. Johnson, 5 Cow. 74. But the facts of this case open not the door for any of these ex- ceptions to come in. Before the marriage of the testator to his wife, she did convey by quit-claim deed the premises 'in question for a term which was in its duration as long as her life. The grantee in that deed, thus acquiring an estate for her life in the lands, did enter, and he and his assign held the possession up to her death and afterward. It is true that this deed was one of two, interchanged between the parties to effect an amicable partition of premises held by them at that time in common. But the execu- tion of these deeds, if followed, as it was, by possession in sever- alty, was valid and sufficient to sever the possession for the life- time of the testator's wife. Baker v. Lorillard, 4 N. Y. 257 ; Car- penter V. Scl^ermerhorn, 2 Barb. Ch. 314, 21. And from the time of the execution by her of that deed, until the day of her death, she had not, nor had her husband, actual possession of the premises ; she nor he made claim to the posses- sion of them ; she nor he received rent or other profit from them ; she nor he had right to ask possession or rent or profit. In short, there did not any fact exist which, for her lifetime, after the exe- cution of the deed, gave her a constructive possession or right of possession. On the contrary, there did exist in another, so far as she and her husband were concerned, exclusive possession, and right of such possession, for a term which ran for her life. There was, then, an outstanding estate for life in the premises, 'which. 306 LAW OP HUSBAND AND WIFE. beginning before her coverture began, did not end until her cover- ture ended. And it is settled, that if there be an outstanding es- tate for life, the husband cannot be the tenant by the curtesy of the wife's estate in reversion or remainder, unless the particular estate be ended during the coverture. Stoddard v. Gibbs, i Sum- ner, 263-70 ; In re Cregier, i Barb. Ch. R. 598. It is among the facts found by the learned justice before whom the action was tried, that the possession of the grantee in that deed, and of his assign, was actual and exclusive. It is found, also, that neither the wife of the testator, nor the testator himself, did at any time after the execution of that deed have act- ual possession of the premises, or receive the rents and profits thereof. And these findings are upheld by the proof. There is no escape from the conclusion that there was lacking one of the essentials in a tenancy by the curtesy in favor of the testator. This defect in the plaintiff's case being fatal, it is not neces- sary that we examine the other questions involved. The judgment of the court below should be affirmed, with costs to the respondent. XL RIGHTS AND LIABILITIES OF SURYIYING WIFE. 1. WIFE'S PARAPHERNALIA. RAWSON V. PENN. RY. CO. 48 N. Y. 212. (1872). Appeal from judgment of the General Term of the Supreme Court in the first judicial district, affirming a judgment entered upon a verdict in favor of plaintiff. The action was brought to recover the alleged value of two trunks containing .clothing and jewelry to the amount of $3,847, and lost on the railroad of the defendants in September, 1864. The plaintiff was returning from Massillon, Ohio, to New York, and bought at Massillon a through ticket to New York, which contained the following notice on its face : "This ticket entitles the holder to not over 80 lbs. baggage free, and not at rate exceeding in value 100 dollars, unless notice is given, and an extra amount paid, at double first-class freight rates. No road represented by either of these tickets is respon- sible for the passenger or baggage while upon any other road. (Signed) "H. R. PAYSON, "General Passenger Agent." The trunks were then checked at Massillon to Pittsburgh as baggage ; at Pittsburgh they were checked to New York. Nothing was paid for extra baggage. Near Thomaston, on the Pennsylvania railroad, and between the points from and to which the trunks were to be conveyed on said road, an accident occurred, and the trunks were burned or destroyed. ' The greater part of the property was received by the plaintiff from her husband; she received, however, over $1,000 worth of it from her son. The jury rendered a verdict for the full value of the prop- erty destroyed. Earl, C. — The first question to be considered is, whether the property destroyed belonged to the plaintiff in such a sense that she can maintain this action. It consisted of her wearing apparel 308 LAW OF HUSBAND AND WIFE. and personal ornaments, and constituted her paraphernalia. A portion of them was given to her by her husband, and as to such portion it is claimed she had no such property as will' sustain a recovery in her name. At common law the wife's paraphernalia during coverture ordinarily belonged to the husband, and he could dispose of them; but he could not dispose of them by will; and if the wife survived him, she could claim them against all per- sons, except the husband's creditors. And this common law rule is substantially embodied in our sta:tutes, except that the wife's paraphernalia are secured to her even as against creditors. 2 R. S. 84, §§ 9'and 10; i Williams on Executors, 644; Willard's Exe- cutors, 251 ; Reeves' Domestic Relations, 37. For an injury to or conversion of the wife's paraphernalia during coverture, the husband was, at common law, the proper party to sue, arid this rule has not been changed by our statutes, except so far as the wife can, in any case, claim the paraphernalia as her separate property. This property was given to the wife by her husband and her son. As to so much as was given to her by her son, no question is made; but it is claimed that the gift from her husband to her was invalid, and hence that the property remained his. Prior to the recent legislation in this state in reference to the rights of mar- ried women, gifts of personal property from husband to wife would be upheld in equity, though void at common law, and such gifts could be impeached only by creditors. Graham v. London- derry^ 3 Atk. 393 ; Deming v. Williams, 26 Conn. 226 ; Borst v. Spelman, 4 N. Y. 284; Neufville v. Thomson, 3 Edw. Ch. 92; Mews v. Mews, 21 Eng. L. and Eq. 556; Reeves' Dom. Rel. 3d ed., 170, note i. In equity the property given would be treated as the wife's separate estate, and she would be protected in its en- joyment and possession, even against the interference of her hus- band. This estate, under the statutes of 1848, 1849, i860 and 1862, in reference to the property of married women, if not abso- lutely converted into a leg£^l estate, is clothed with all the incidents of a legal estate, and she is the proper person to sue and to be sued in reference thereto. Hence I cannot doubt that this action was properly brought in the name of the plaintiff. The only other question to be considered is, whether the matter printed upon the face of the railroad ticket, bought by the plain- tiff at Massillon, limited the liability of the defendant ; and that it did not, is now too well settled to admit of dispute. Blossom v. Dodd, 43 N. Y. 264. The words thus printed do not purport to RIGHTS OF SURVIVING WIFE. 309 embody the contract between the parties. They are a mere notice as to the terms upoii which a passenger's baggage will be carried, and are entitled to no more force because they are printed upon the face of the ticket than if they had been printed on the back of the ticket, or on a separate piece of paper posted up at the ticket office ; and hence this case is clearly within the rule that a carrier cannot limit his liability by notice, but can do so only by express contract. It must, however, be admitted that if the railroad agent had called plaintifif's attention to' this language, when he sold the ticket and took her money, or if it had been shown that she knew of this language when she paid her money and took the ticket, the law would presume, in the absence of objection on her part, that she as- sented to the terms therein expressed. But here she testified that she did not read this language, and there is no proof that she re- ceived the ticket under such circumstances that the law will pre- sume that she must have known and understood the language, and assented to the terms. It would be unreasonable to presume that a passenger, when he buys a railroad ticket at a ticket office, stops to read the language pointed upon it, and it would be equally un- reasonable to hold that a passenger must take notice that the lan- guage upon his ticket contains any contract, or in any way limits the carrier's common law liability. A ticket does not generally contain any contract, and i^ not intended to. It is a mere token or voucher adopted for convenience to show that the passenger has paid his fare from one place to another. The contract between these parties was made when the plain- tiff bought her ticket, and the rights and duties of the parties were then determined. Hence, even if the plaintiff had read what ap- pears upon her ticket after she had entered upon her journey, it would have made no difference with her rights. She was not then obliged to submit to a contract which she never made, or leave the train and demand her baggage. I have, therefore, reached the conclusion that the judgment should be affirmed with costs. 310 LAW OF HUSBAND AND WIPE. 2. DOWER, a. Defined, GRAY AND WIFE v. McCUNE, 23 PA. ST. 447- (i8S4). This was an action of dower, by James Gray and Mary Ann his wife v. William C. McCune, brought on 23d June, 1853, to recover dower in two tracts of land, formerly the property of John McCune, the first husband of the said Mary. John McCune aforesaid was seised of three tracts of land, one, on which he lived, containing about 190 acres, and another of 75 acres, chiefly timber land, and the third containing about 200 acres. By a first wife he had five children, William McCune, the defendant, being one of them. So owning the said lands, he be- came married to the said Mary Ann about 1824. By deed, dated 13th of September, 1832, he conveyed to his son William, the de- fendant, 45 acres of the timber tract, including a small tenant house and four acres of clear land, $1,000 being mentioned as the consideration of the deed. And by another deed, dated nth March, 1833, he conveyed to the defendant about 70 acres, being part of the tract on which he lived, $1,500 being stated as the con- sideration. His wife Mary Ann, plaintiff, did not join in either of these conveyances. Both deeds contained a covenant of special warranty against him and his heirs. By his will, dated 27th December, 1834, he devised to his wife, Mary Ann, certain personal property; and he devised to her and her five children, "to them, their heirs and assigns for ever," the plantation he then lived on, to enjoy the same for their use and support, viz., to his wife Mary Ann, the one third part of the rents and profits during her natural life, and her five children to enjoy the remainder of the rents and profits ; and after the death of their mother, and after the youngest child came of age, they might sell the land. He also gave to her said five children a piece of wood- land, containing above 15 acres. He devised to his other daugh- ters certain real estate. He died in June, 1835. The will was , proved on 26th June, 1835. On the trial it was proposed, on part of the plaintiffs, to prove the annual value of the land, in which dower was claimed, since the death of John McCune. The evi- dence was allowed so far as respected the value of the lands since the suit was brought. Exception on part of plaintiffs. On part of defendant was offered an instrument of writing, signed by Mary Ann McCune, the widow, under seal, and having RIGHTS OF SURVIVING WIPE. 311 two witnesses ; to be followed by proof that she procured the will to be made by which the devises to her and her children were made in consideration of the conveyances made to William McCune; and that she since the death of her husband declared that she had executed the release for the purpose of confirming the title to him, clear of claim of dower on her part. The instrument was addressed : "To all to whom these pres- ents shall come." In it was stated that by the will of her husband, bearing date, etc., provision was made for her in lieu of her right of dower; and it proceeded, "now know ye that I, the said Mary Ann McCune, do hereby agree to take under the provisions of said will and testament, and accept of the bequests therein to me, in lieu and full satisfaction of right of dower, at common law. In witness," etc. ; dated 3d July, 1835. It was under seal, and had to it two witnesses. The paper was objected to — ^first, as not being a release. 2. Because neither the defendant nor any one under whom he claims, nor<^the land in question, is referred to in the paper. 3. Because no benefit or consideration passed to her from the defendant. By consent, the offer of the defendant was to be put into the form of a special plea, and the plaintiffs to reply. It was further objected that the paper was nothing more than an offer to take under the will ; and further, that it was not com- petent to prove by parol the meaning of the paper. The evidence was admitted, and exception was taken. A witness testified that Mrs. Gray, in September, 1849, said to him that she had desired her husband to leave her the property she had in possession — that she desired him to leave her property separate from that of William, and he should have his property separate from her — that she was satisfied ; — that she said she had not signed the deed, but had signed an agreement of release to the same effect. Another witness was examined, who testified that he was the executor of the will of John McCune — that it was reported that the widow was not satisfied, and that he got the release drawn, supposing it would bind her, and that she signed it in his presence. He said that the widow got the property which had been be- queathed to her. He said further that the property given to her and her children was more valuable than all the rest of the estate left by by the testator. Graham, P. /., inter alia, charged that the paper alone would, not defeat the plaintiffs' claim, but that he considered parol evi- 312 LAW OP HUSBAND AND WIFE. dence admissible to ascertain the object and intention of the par- ties in its execution; and he instructed the jury if they were satis- fied that the paper was intended by Mrs. Gray, at the time it was executed, as a release of dower in the lands sold to her son, in con- sideration that her husband had yielded to her request in making his will and had devised to her the most valuable part of his esj:ate, their verdict should be for the defendant. Verdict for defendant. Error was assigned to the rejection of evidence of the value of the land before suit brought, and the value of the timber cut by defendant in the last year ; to the admission of the paper signed by the widow, and parol evidence in relation to it ; and to the part of the charge referred to. The case was submitted. The opinion of the court was delivered by Lewis, J. — In Leineweaver v. Stoever, i W. & Ser. i6o, it was held that the acceptance by the wife of her distributive share of her husband's estate under the intestate law, did not bar her ac- tion of dower in lands which her husband had conveyed to a stranger, and which formed no part of his estate at his death. In Borland v. Nichols, 2 Jones 43, the same principle was applied to the acceptance by a wife of a devise under her husband's will. The first was a decision under the Act of 1794, and the other under that of 1797. Both statutes had relation exclusively to the estates of which the husband died seised or possessed. They could oper- ate on no other. And the last, which is the only one material to be considered here, is express in its direction that the acceptance of a devise of any portion of his estate "shall be deemed and taken to be in lieu and bar of her dower out of the estate of her deceased husband, in like manner as if the same were so expressed." It was held that the statute could not be carried beyond its letter, and that as its general provisions related to the estate which be- longed to the husband at the time of his death, and the particular effect of acceptance was confined by the statute to that estate, the courts could not, by construction, enlarge it. The decisions re- ferred to were constructions of law, given to tlie single act of ac- cepting a distributive share or a devise. But the case before us demands a decision upon an instrument of writing, sealed and delivered by the party in whose right this action is brought. A release under seal is good without a consideration ; and where, as here, it enures by way of mitter le droit, words of inheritance are not necessary. It would be well to make use of the most appro- RIGHTS OF SURVIVING WIFE. 313 priate words, such as remississe, relaxasse, et quietam clamasse, but these are not indispensable. The words, renunciare, acquiet- are, &c., will answer as well. If one ackn,owledge himself satisfied, and discharge a debt, this is a good release: Shepherd's Touch- stone 327. The paper in question is duly executed under the hand and seal of Mary Ann McCune, in the presence of two witnesses. It bears date the 3d July, 1835, when she was under no disability of coverture or otherwise. It is addressed, "To all to whom these presents shall come." It has come to the hands of the defendant below, and he gives it in evidence^ and claims the benefit of it. He is not a stranger, but had possession of the property in dispute at the time of 'the execution of this instrument, and claimed to hold the land in fee simplfe under a conveyance from the first husband of Mary Ann McCune, dated nth March, 1833. It would be a reproach to the law if this instrument under seal, thus fairly ex- ecuted by the present Mrs. Gray, were held to be null and void. It cannot be ptetended by any one that it should be so regarded. It must, therefore, have effect according to its true intent and meaning. It is Mrs. Gray's own language, and therefore, in case of ambiguity or doubt, it is to be construed most strongly against herself. It was her business to express herself so as to be under- stood. If she intended merely to accept the provisions of her hus- band's will "in lieu of her dower in the estate of her husband," un- der the statute of 1833, it was her duty to say so. If the object was merely to acknowledge satisfaction of all right of dower out of the estate which belonged to her husband at his death, it was easy to say so ; and it was her duty to say so in such language as could be readily understood. William C. McCune, in addition to his title as vendee under his conveyance from his father, was a son and an heir, and had an interest in knowing the extent of the satisfaction acknowledged. If he had not understood it as ex- tinguishing all claims upon the land in his possession, it may be that he would have resorted to other measures for his protection. He might have raised a qtiestion in regard to the large provision made by the will for the widow, and the meagre one provided by the same instrument for himself. But the paper distinctly declared that the said Mary Ann McCune agrees to take under the provi- sions of the will, and accepts the bequests therein, to her, in lieu and full satisfaction of right of "dower at common law." What is right of dower at common law ? It is something more than right of dower out of the estate of which her husband died seised. Dow- er at common law is the one-third part of all the lands and tene- 314 LAW OP HUSBAND AND WIPE. merits whereof her husband was seised, at any time during cov- erture. This is precisely the right which she released, and she has thereby discharged the land in controversy from her present claim. After making the declaration that although she had not signed the deed to William C. McCune, she "had signed an agreement of re- lease to the same effect ;" after receiving for herself and her chil- dren property more valuable than all the rest of the estate, includ- ing what was sold to William ; and after an acquiescence of nearly twenty years in the settlement thus made, she comes with a bad grace to ask a recovery contrary to the plain meaning of her own deed. The cause is put upon the effect and true meaning of that instrument as expressed upon its face. In Pennsylvania it is not necessary that a release should be dressed up in legal and technical form. It is sufficient if it be in substance a release. The intention of the parties will be carried out in a court of law, as fully as if they were before a chancellor, and governed by the principles of equity. The instrument of writing signed by the demandant, in connexion with the other facts in the case, sustains all that is ma- terial in the plea. It is true that a conveyance of her right of dower to a stranger, for a consideration moving from him to her, could not sustain the plea of a release to the defendant, who had no privity with such stranger. The suit might, notwithstanding such con- veyance to a stranger, be carried on for her use in the name of the demandant. This is all that was decided in Pixley v. Bennett, ii Mass. 298. In Massachusetts, a conveyance to a party out of pos- session passes no estate, and is therefore not evidence under the general issue in a writ of entry: Wolcot et al. v. Knight et al., 6 Mass. 420. And in an action of dower the tenant, who does not claim under such conveyance, and who is an entire stranger to the consideration, cannot set it up as a defence. If it passed no right, it was clearly no defence. If it did pass a right, the action might well be maintained for the benefit of the grantee or his assigns. In either case the defendant, being a stranger to it, had nothing to do with it. This is all that has any relevancy to this case in Robinson V. Bates, 3 Metcalf 40. It is clear that these decisions, although cited by the plaintiffs in error to invalidate the defence under the release relied on in the case before us, do not sustain their posi- tions. William C. McCune was neither a stranger to the consider- ation, nor to the instrument itself. It was not a transaction be- tween strangers. The provisions in the will, which the widow ac- cepted in satisfaction of her claim, were drawn from estates which, RIGHTS OF SURVIVING WIFE. ' 315 but for the will and the acceptance by the widow, would have descended or fallen upon William McCune himself; and the lan- guage of the instrument, as well as its object, shows that it was in- tended to operate in favor of the party who relied upon it at the trial. This disposes of the whole case, and renders it unnecessary to discuss the other questions raised in the assignment of errors. Judgment aMrmed: b. Requisites. JONES V. JONES, 28 ARK. 19. (1872). Appeal from Sharp Circuit Court. Hon. Elisha Baxter, Circuit Judge. Bennett, J. — The appellant filed her bill in the Circuit Court below as the widow of Elbert Jones, deceased, to compel W. C- Jones, his administrator, to render true and proper accounts of his estate, and to have dower set apart to her as the widow of the deceased. The bill charges the marriage of her and the deceased, in Ten- nessee, in the year 1831 ; the death of Elbert Jones in 1856 ; a large estate of lands and personalty; administration on the same by W. C. Jones, and then several ma,tters of waste and misapplication of the funds of the estate; errors and frauds in the accounts of the administration.. The answer of the administrator denies, in the usual man- ner, all charges of error, waste and fraud, and denies that appel- lant was ever married to deceased, and denies that appellant and Elbert Jones were ever husband and wife; pleads the statute of limitations, and asserts his right to the estate. Upon the hearing, the court dismissed the bill, from which order of dismissal an appeal has been granted. The order of dismissal does not state for what reason the bill was dismissed; whether for want of jurisdiction, or because the action was barred by the statute of limitations; or, because the complainant was not the widow of Elbert Jones, or because the allegations of fraud, etc., were not made out by the proof. That chancery courts have jurisdiction in matters afifecting questions of dower has been well settled in the case of Menifee v. Menifee, 8 Ark., 9, and need not be further discussed here. As to the question of the statute of limitations, we niay say, no lapse of time is a bar to a direct trust, as between the trustee 316 LAW OF HUSBAND AND WIFE. and cestui que trust. When an administrator takes possession of the property of an estate, he becomes a trustee for the widow and next of kin, and it would be unjust for the person who takes pos- session of the property of the intestate, under authority of law, tO' be at liberty, after more or less years of possession, to set up the statute of limitations as a bar to the cestui que trust. Though the statute may be pleaded as against creditors, it can never be pleaded as a bar to the beneficiaries. 3 Johns. Ch., 214, 215 ; 10 Vesey, 93 ; 1 Johns. Ch., 316. Was Delilah Jones the widow of Elbert Jones ? This inquiry is an important one, as she is asking the court to award her dower, and marriage is an essential prerequisite to the right of dower. In order to entitle a woman to this provision, she must answer the description of a lawful wife, i Scribner on Dower, ch. 3, sec. 1. Marriage, under our statute, is considered in law a civil contract, to which the consent of the parties, capable in law of contracting, is necessary. Marriage has been regulated by legislative enact- ments, by defining the character and relations of parties who may marry, so as to prevent a conflict of duties and to preserve the purity of families ; by prescribing the solemnities by which the contract shall ebexecuted, so as to guard against fraud, surprise and seduction; by annexing civil rights to the parties and their issue, to encourage marriage and to discountenance wanton and lascivious cohabitation ; by declaring the causes and the judicature for rescinding the contract, when the conduct of either party and the interest of the state authorize dissolution. A lawful marriage may be defined to be a contract made by parties authorized by law to contract, and solemnized in the manner prescribed by law. To constitute a lawful wife, there must have been a lawful marriage. It is generally considered, in the absence of any positive statute declaring that all marriages, not celebrated in the prescribed man- ner, shall be absolutely void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage regularly made according to the common law, without observing the statute regulations, would still be a valid marriage. 2 Greenleaf Ev., 417 ; 2 Kent Com., 90, 91 ; Reeve's Dom. Rel., 196, 200, 290 ; Parton v. Harvey, i Gray, 119; Londonderry v. Chester, 2 N. H., 268; Chis- eldine v. Brewer, i Har. & McH., 152; Hants v. Sealey, 6 Binn., 405. A marriage celebrated in any country, according to its own laws, is recognized and valid in any country whose laws or policy it may not contravene. RIGHTS OF SURVIVING WIFE. 317 The proof of marriage, as of other issues, is either by direct evidence establishing the fact, or by evidence of collateral facts and circumstances from which its existence may be inferred. The same strictness of proof is not requisite in civil cases as is required upon indictments for bigamy and other actions of a criminal character. In civil cases it is common to prove marriage by reputation, declarations and conduct of parties, and other cir- cumstances usually accompanying that relation. It is cornpetent to show conversations and letters addressing each other as man and wife; their appearing in respectable society, and their being received as man and wife; their observance of the customs and usages of society peculiar to the entry upon or subsistence of that relation; their cohabitation aslo as -man and wife is presumed to be lawful until the contrary appears. A like inference is drawn by the acknowledgment and treatment of their children by them as legitimate. , ' The evidence of marriage may be rebutted by proof that any circumstances, rendered indispensably necessary by law to a valid marriage, were wanting. Thus it may be shown that either of the parties had another husband or wife living at the time of the mar- riage in question ; or that the parties were related within prohib- ited degrees ; or that consent was wanting, the marriage having been effected by force or fraud; or that one of the parties Was at the time an idiot or non compos mentis or insane. Having thus defined what constitutes a lawful marriage and a lawful wife, and what proof may be adduced to substantiate it, as far as applicable to the case at bar, we will proceed to make the application, and endeavor to ascertain with as much certainty as possible, whether Delilah Jones was the lawful wife of Elbert Jones at the time of his death. Her bill of complaint alleges : "That the said Elbert Jones, deceased, and your oratrix (Delilah Jones) were married in the state of Tennessee, about the year 183 1." It is nowhere stated in what town or county of Tennessee the marriage took place, but she states she lived with Jones as his wife for some fifteen years. The answer of W. C. Jones, admin- istrator, charges "that said Delilah Jones was never lawfully mar- ried to the said Elbert Jones, as stated in said complaint; that, at the time of said alleged and pretended marriage, said Elbert Jones had a lawfully married wife named Matilda Jones, living in Ten- nessee, and from which he was not divorced, and who continued to be his lawful wife for more than twelve years after the time 3aid Elbert and Delilah commenced cohabiting together." The 318 LAW OF HUSBAND AND WIPE. proof introduced upon the issue was as follows: W. R. Holcomb testifies, that he "was acquainted with Mr. Elbert Jones during his lifetime. I know that he and complainant recognized each other as man and wife, and the neighbors recognized them as such. I have frequently heard them speak of their marriage in the state of Tennessee, during the old man's lifetime." W. M. Morgan testifies, "that he has been acquainted with the plaintifiE for about 28 years, and was acquainted with Elbert Jones, deceased, from the year 1842 until his death, but does not know anything about their marriage; they lived together as man and wife, and were recognized as such by the neighbors, and I think they conducted themselves as man and wife." Isaac King testifies, "that he does not know anything of the marriage of Elbert Jones and Delilah Jones, but they lived together as man and wife, and conducted themselves as such, and were recognized as such by their neigh- bors generally." John King testifies, "that he has known Elbert Jones and Delilah Jones for 20 or 25 years, but don't know any- thing about their marriage ; J:hey came here some twenty or twenty- five years ago, and were recognized as man and wife." David Spurlock, testifies: "Have known Elbert Jones and Delilah Jones some 23 or 24 years. They lived together as man and wife what time I knew them, and conducted themselves as such. At a cer- tain case before me, when I was justice of the peace, Elbert Jones said that Elbert T. Jones was his son; he was then living with Delilah Jones, the complainant." John Ogler testifies, "that when he came to this country, they, Elbert Jones and Delilah Jones, were recognized generally by their neighbors as man and wife. In the year 1854-55, I was acting and duly commissioned justice of the peace, and Elbert Jones swore out an attachment, and in the affidavit he swore that Mrs. Delilah Jones was his wife, and he recognized her as I would my wife, like you, Mr. Davidson, do yours, or like any other man would his wife." Elbert Jones testi- fies to the fact that Delilah Jones is his mother, and that Elbert Jones, during his lifetime, recognized him as his son, and Elbert Jones, Sr., always treated Delilah Jones as his wife. John G. Far- man testifies, "that Elbert Jones always treated Delilah Jones as his lawful wife, and knew of Elbert Jones, during his lifetime, suing out an attachment for his wife upon her sole contract, and said at the time, he would not have done it if it had been on his own account, but it being his wife's, he felt it his duty to proceed as he did." Upon the part of the defendant, James M. Jones testifies, "that RIGHTS OF SURVIVING WIPE. 319 he is acquainted with Elbert T. Jones and Delilah Jones, formerly Delilah Harris. Have known Mrs. Delilah Jones since 1827 or 1828 ; at that time she was known as Delilah Harris. Elbert Jones, deceased, and Delilah Harris, lived in my neighborhood until the fall of 1835, in company with Elbert Jones, deceased; but not as his wife. Elbert Jones, deceased, and his wife, Matilda Jones, separated about the year 1829, but they were never di- vorced. Matilda Jones died about twelve or fifteen years after the separation. Have lived in Bedford county, Tennessee, since 1830.-' The above is all the evidence introduced to prove or disprove the lawful marriage of Elbert Jones with Delilah Jones. The evidence, on the part of the complainant, is but declara- tions and conduct of parties, and at most, but circumstantial evi- dence of marriagev The complainant does not endeavor to prove that her marriage was ever, in any manner, solemnized; or that there was any agreement between her and Elbert Jones to become man and wife. In a suit for dower, it is clear that an actual mar- riage, either under the forms and solemnities prescribed by the statute, or as prescribed by the common law, is necessary. It is not one of those cases in which a man is estopped, on grounds of public policy, or private right, from denying that he is married to a woman; as where a tradesman has trusted a woman on the faith of her being married to a man, who has held her out to the world as his wife. In such cases the law will not permit the truth to be proven, because it would do injustice and work a fraud. But here the person claiming to be the wife, assuredly has no higher equities than the relations of the deceased ; for if, instead of being married, she lived with deceased as his concubine, it was her own fault, and she can blame herself alone. The cohabitation and acts of Elbert Jones and Delilah Jones, although extending through many years, did not amount to mar- riage, but are facts from which a marriage might be inferred. They were circumstances on which to ground a presumption of marriage, and on the other hand, might be met with other circum- stances which would entirely overturn that presumption. Delilah Jones says she was married to Jones in 1831, but does not state how or by whom she was married, but only shows acts of cohabitation and holding out to the world that they are man and wife. On the contrary, J. M. Jones, a brother of Elbert, says he was well acquainted with these parties, and in 183 1, and sev- eral years afterwards, Elbert had a lawful wife living, by the 320 LAW OF HUSBAND AND WIPE. name of Matilda Jones, from whom he was never divorced. No effort on the part of the complainant was made to overturn or weaken this evidence. It is positive, direct, conclusive. If this was true, Elbert Jones could not have made Delilah Harris, or any woman, his lawful wife in any manner whatever, either by the forms of solemnization required by the statutes, by acts of cohabitation or otherwise. The proof of marriage must relate to the time alleged in the bill, viz., 183 1 ; and if, at that time, Matilda Jones was the lawful wife of Elbert Jones, Delilah Jones ■could not have been. No evidence has been introduced to show that any subsequent marriage has been had ; we are clearly of the opinion that Delilah Jones was not the lawful wife of Elbert Jones at the time of his death, and not being such, she cannot maintain her action of dower in his estate, or institute proceedings to inquire into errors or frauds on the part of the administrator, .as it is not shown that she has any other interest in the estate ex- cept as a wife of the deceased. Judgment affirmed. NULL V. HOWELL, in MO. 273. (1892). Macfari.ane, J. — Action for assignment of dower in certain lands in Lincoln county and for damages. Answer, general denial and statutes of limitation. On the trial it was agreed that James Y. Howell, Sr., died in r86i seized in fee of the lands in dispute, and in the actual posses- sion thereof, leaving his widow, Louisa Howell and two children, James Y. Howell, Jr., and defendant, J. W. Howell, surviving him. The widow and children continued the occupancy of this land and the residence thereon after the death of the husband and father. Dower was never assigned to the widow. In March, 1876, James Y. Howell, Jr., married plaintiff, and she and her husband lived together until his death, May 2, 1878. The widow of James Y. Howell, Sr., died March 2, 1889. Defendant has been in the exclusive possession since her death. Plaintiff was married to C. M. Null, May 22, 1879, ^ind has never relinquished her dower in said land. Upon this state of facts the court gave a declaration of law to the effect that under the pleadings and the agreed facts plaintiffs are not entitled to recover. Counsel have argued but two points, and are agreed on all iOther legal propositions. It is agreed that James Y. Howell, Jr., EIGHTS OF SURVIVING WIFE. 321 inherited from his father an undivided one-half of the land in dis- pute subject to the rights of the widow of his father. Defendant insists, iirst, that James Y. Howell, Jr., never, during his marriage with plaintiflf, had such seizin in the land as invested her with a right of dower therein ; and, second, if he had such seizin that plaintiff's right of action accrued upon the death of her husband, James Y. Howell, Jr., May 2, 1878, and when this suit was commenced her right of action was barred by limit- ation. I. The first question for consideration is, whether the inter- vening quarantine and dower rights of the widow of James Y. Howell, Sr., prevented the seizin of his heir-at-law, the husband of plaintiff. We think not. The rule at common law is that the husband must be vested with the freehold and inheritance "at once and together," in order that the dower right of the widow should attach. Hence, there could be no dower in lands assigned as dower. The interposition of the life-estate of the widow would prevent the necessary seizin of the husband, i Scribner on Dower, 233, sec. 10; 2 Scribner, 324; 5 American & English Encyclopedia of Law, 893 ; Warren v. Williams, 25 Mo. App. 23. If, therefore, the dower of the widow of Howell, Sr., had been assigned before plaintiff married Howell, Jr., then plaintiff would have taken no dower in the lands so assigned, but she would have been entitled to dower in the lands remaining after the assignment. An intervening estate less than a freehold, such as estates for years, are mere chattel interests, and do not prevent the seizin of the husband, and the wife will be endowed of the lands held by another under such interests, i Scribner on Dower, 233, sec. 11. "If there be no assignment of dower to the ancestor's widow, the seizin or estate in possession which descended upon the heir is not defeated to any extent, and consequently his widow is entitled to dower in the entire premises." i Scribner, 326. The right of the widow "to remain in and enjoy the mansion house of her husband and the plantation thereto belonging" barely reaches the dignity of a tenancy at will. Bliss, J., in speaking of such interests says: "It can hardly be called an estate, though it is somewhat analogous to one at will; still it is a clear statutory right, and can only be terminated by an assignment of dower." Miller v. Talley, 48 Mo. 504. The husband of plaintiff, upon the death of his father, inher- ited the undivided one-half of this land, subject only to the unas- 322 LAW OP HUSBAND AND WIFE. signed dower of the widow and her temporary right of occupancy, neither or both of which together prevented the vesting of the estate of inheritance. Upon the marriage of plaintiff her inchoate right of dower vested immediately, and was consummate upon the death of her husband. Actual possession of the husband was not essential to the right of dower attaching. Revised Statutes, 1879, sec. 4535 ; Davis v. Evans, 102 Mo. 165. II. We are satisfied also that the action is not barred by the statute of limitations. It is now settled in this state that the action for dower is an action for the recovery of real estate, and the stat- ute governing the limitation of such actions applies to it. Beard v. Hale, 95 Mo. 16; Robinson v. Ware, 94 Mo. 678; Sherzvood v. Baker, 105 Mo. 478. Under that statute there is no bar unless there has been an adverse possession of the land by the defendant or those under whom he claims for ten years. The right of dower must have been extinguished by an adverse possession. Sherwood V. Baker, supra, and authorities cited. It is well settled that the possession of the widow, under her quarantine right, is not adverse to the heirs of her deceased hus- band or their assigns. Brown v. Moore, 74 Mo. 633 ; Roberts v. Nelson, 87 Mo. 229 ; Hickman v. Link, 97 Mo. 482. In Hickman V. Link, supra, it was held that, while the widow's possession was not adverse to the heirs, "it was evidently adverse to all the world, except those who may be entitled to the property on the expiration of her estate." The widow remains in the mansion house and occupies the plantation by the sufferance of the heir or those claiming under him. Her possession is in no sense hostile or adverse to either. Forbearance on the part of the heir to ter- minate the quarantine rights of the widow has been properly commended by the courts. Brown v. Moore, supra. The heir is usually the child of the widow. The relation of the two widows one to the other should be of the closest and friendliest character. Plaintiff, in this case, only followed the course pursued by her husband, when she refrained from disturbing the possession of the widow of the ancestor of her husband. For this she should also be commended. The possession was permissive from the be- ginning, "and will be regarded as continuing so, unless disclaimed by declarations or acts, unmistakably hostile." Chouteau v. Rid- dle, I ID Mo. 366. Reversed and remanded. RIGHTS OF SURVIVING WIFE. 323 HOUSTON V. SMITH, 88 N. C. 312. (1883). Special proceeding for dower begun in the Probate Court and tried at July special term, 1882^ of Duplin Superior Court, be- fore Gilliam, J. The plaintiff is the widow of John E. Smith, and now the wife of one Houston. The case was submitted by the parties to the judge to find the facts, which are as follows : Kinsey Whaley died seized of the land in controversy, and by his will devised the same to his wife, Nancy J., for her life, and the remainder to J. J. Whaley and Ephinia Whaley. John E. Smith, the father of defendants, purchased the inter- est of J. J. Whaley, and intermarried with Ephinia Whaley, and the defendants are the issue of that marriage. After the death oi Ephinia, John E. Smith intermarried with the plaintiff, and died in 1873 ™ possession of the land. He rented the land from Nancy J. Whaley for several years. She died in 1881. The plaintiff offered to prove that two or three years before the death of John E. Smith, Nancy J. Whaley released him from all rent in the future, and agreed that he should occupy the place during her life without charge. The testimony was objected to, and excluded by the court. The plaintiff excepted, the exception was overruled, and judgment given for the defendants, from which the plaintiff appealed. Mr. H. R. Kornegay, for plaintiff. Mr. O. H. Allen, for defendants. Ashe, J. — The only point presented by the record for our consideration is — was there error in the refusal of His Honor to receive the evidence offered by the plaintiff in relation to the al- leged release from rent, and to the agreement on the part of Nancy Whaley that John E. Smith might occupy the land during her life without charge. By the act of 1 868-' 69, every married woman, upon the death of her husband intestate, or in case she shall dissent from his will, shall be entitled to an estate for her life in one-third in value of all the lands, tenements and hereditaments, whereof her hus- band was seized and possessed at any time during the coverture, &c. Of course it must mean an estate of inheritance. The word "seizin" has a technical meaning in this connection. It is either a seizin in deed or a seizin in law ; the former is, where there is an actual possession of a freehold estate ; the latter, where 324 LAW OP HUSBAND AND WIFE. there is a right to an immediate possession or enjoyment of a free- hold estate. Seizin only applies to freehold estates. A seizin in law of the husband is as effectual as a seizin in deed, in order to render the wife dowable, but the husband must have the one seizin or the other of an estate of inheritance, to give to his widow a right to dower. There is no such thing as a seizin of a remainder after a freehold estate, because the remainderman has no right to the possession or enjoyment of the land until the determination of the particular estate, and, therefore, a widow is not dowable of such a remainder ; but if the particular estate is a chattel, as an estate for years, then the possession of the tenant is the possession of the remainderman, and, as, in that case, the only freehold interest is in the remainderman, he is said to be seized of the remainder, and his wife may be endowed of his lands so holden. In I Scribner on Dower, page 217, it is said : "To give a right of dower, the estate of the husband must confer a right to the im- mediate freehold. This is an essential requisite at the common law. Dower is not allowed in estates in reversion or remainder expectant upon an estate of freehold ; and hence, if the estate of the husband be subject to an outstanding freeheld estate, which remains unde- termined during the coverture, no right of dower attaches." What was the nature of the evidence offered by the plaintiff is not made to appear, but as no deed was offered to be introduced, we must assume that the evidence only had relation to a parol agreement, and in that case the estate of Nancy Whaley, being a freehold, could only be passed by a deed — properly a deed of sur- render. If the plaintiff was relying upon a deed, and such was the evidence she proposed to offer, to make her exception available, she should have offered to introduce the deed, duly registered, otherwise it would not have been admissible in evidence. So far as appears from the record, the evidence offered was a mere parol agreement by Nancy Whaley with Smith for him to occupy the land without rent, which made him a tenant at will, leaving the freehold in Nancy and the remainder in Smith, in whom there was no seizin, and not being seized of the land during his life, his wife acquired no right of dower therein. The judg- ment of the Superior Court is affirmed. RIGHTS OF SURVIVING WIFE. 325 MANN V. EDSON, 39 ME. 25. {1854). On exceptions from Nisi Prius, Hathaway, J., presiding. Writ of Dower. The tenant pleaded that demandant's hus- band was never seized of the premises. The land formerly belonged to one Sullivan and by some arrangement between him and deniandant's husband, William Mann, the latter went into possession of it some years prior to 1835. Mann being poor, employed a relative to pay for it, to whom the deed was made. The holder of the title wanting his pay, Mann found another person by name of Edson, to buy it, and to the lat- ter the land was deeded in September, 1835. Edson was the son- in-law of Mann, and executed a life lease of |:he premises to Mann, who continued to live thereon until his death in 1850. The plaintiff introduced evidence tending to show that the money paid by Edson belonged to Mann, and that the deed was made to Edson in fraud of Mann's creditors. She also offered to prove the declarations of Mann, made about a year before his death, concerning his interest in the land, which were excluded by the court. The Judge instructed the jury, that if the deed to Edson was made in fraud of Mann's creditors, it would have been void as to those creditors, yet it was good between Mann and Edson, and would be as effectual, so far as the demandant's rights are con- cerned in this case, as if it were free from any such taint. A verdict was returned for tenant, and demandant excepted. Appleton, J. — To entitle a widow to dower, she must show that during coverture her husband had either an actual or cor- poreal seizin, or a right to such seizin of the estate of Which dower is demanded. It is true it was held in Knight v. Mains, 3 Fairf. 41, that possession was evidence of seizin, and that when it ap- peared that the husband had been in possession during coverture, it was incumbent on the defendant to prove a paramount title in himself. This has been done in the case at bar. The jury have found that the husband -of the demandant was not seized during coverture, so that the inference of seizin, which might have been drawn from possession, appears to have been rebutted. At common law, tlje widow of a cestui que trust is not dow- able of an estate to which the husband had only an equitable title. Hamlin v. Hamlin, 19 Maine, 141 ; Park on Dower, 124. Such being the law, where the trust is one which is lawful in itself and which a court of equity would enforce, it is not easy to perceive 326 LAW OP HUSBAND AND WIFE. how the rights of the widow will be increased or enlarged, if the ingredient of fraud be added and the purposes of the alleged trust were to defraud the creditors of the husband. The husband could not, by the intervention of a court of equity, have enforced such a trust, nor have acquired that seizin, which is a prerequisite so in- dispensable, that without its existence, the widow must fail of her dower. Whithed v. Mallory, 4 Cush. 140. The declarations of Mann were properly excluded. They were immaterial to the issue, the object of their introduction being to show that the alleged trust estate of Mann, which, as has been already seen, could not have been of any avail to the demandant. Besides, the facts sought to be shown by his declarations seem to have been proved from other sources, and to have been established by the special finding of the jury. Exceptions overruled. — Judgment on the verdict. ELDREDGE v. FORRESTAL, 7 MASS. 253. (181 1). This was a writ of entry pending in the county of Barnstable, in which the demandants count upon the seizin of James Eldredge, their grandfather, and a devise by him to his son Jesse Eldredge, their father, in fee simple, after the death of Priscilla, widow of the testator, and aver the death of the said Jesse, after his father, and in the lifetime of the said Priscilla, and her death afterwards, and an entry by the tenants thereupon, &c. The action was tried upon the general issue before Sewall, J., at the last October term in Barnstable county. It appears from the judge's report of the trial, that the tene- ments demanded were parcels of the real estate of which James Eldredge, grandfather of the demandants, died seized, which since his death, and the death of his widow Priscilla, have been assigned and set off, by a warrant from the Probate Court for the said county of Barnstable, to the said Esther who was the widow of the said Jesse Eldredge, but since his death has been married to the said James Forrestal, as her dower. The last will of the demandant's grandfather, dated February , 4th, 1804, and proved March 22, 1809, containing the devise al- leged in the demandant's count, was given in evidence at the trial; and it was proved or admitted, that after the death of the said testator, his son, the said Jesse, died, leaving the said Esther his widow, and the demandants his only children and heirs at law ; RIGHTS OF SURVIVING WIFE. 327 and that afterwards the said Priscilla died, before the said assign- ment of dower to the said Esther. Upon this evidence a verdict was taken for the demandants, subject to the opinion of the court, whether they were entitled to recover ; and if not entitled, the verdict was to be set aside, and a verdict entered for the tenants. The action was continued nisi for the opinion of the court, which was delivered at this term, without any argument at the bar, by Sedgwick, , J. — There is no doubt that an actual corporeal seizin or a right to such seizin, in the husband during the cover- ture, is indispensable to entitle his widow to dower; and that a legal seizin, of a vested remainder is not sufficient for that pur- pose. — As in this case there was an interposing estate for life, which was not determined until after the death of the husband, it is very clear that the tenant was not entitled to dower. The pro- ceedings in the Probate Court are void : and judgment must there- fore be entered on the verdict. WOOLRIDGE V. LUCAS, 7 B. MONROE, (KY.) 49. (1846). Chief Justice Ewing delivered the opinion of the court. The plaintiff brought an action of trover for a female slave, against the defendants, and after two trials before a jury and a failure to find a verdict upon issues joined, the case was submit- ted to the court upon the following agreed facts, in substance: that the plaintiff was indicted, tried, convicted, and sentenced to a confinement in the penitentiary for two years, for felony ; that he was pardoned and discharged before the expiration of his term; but before his pardon and discharge, one of his sons sold the slave in question, which before his conviction was his property, to the defendants. Upon these agreed facts the parties submitted the case to the judgment and decision of the court, upon the following terms : that if the court should be of opinion that the law was for the defendant, judgment was to be rendered for him, and if for the plaintiff, then the facts were to be submitted to a jury upon all the grounds of defence relied on by the defendants. The court gave judgment against the plaintiff, and he has ap- pealed to this court. The case involves the construction of the 20th section of the loth article of the Constitution of Kentucky, and of the two acts of the Legislature, the one passed in 1796 (i Stat. Law, 531,) the 328 LAW OF HUSBAND AlSTD WIFE. Other passed in 1802, (2 Stat. Law, 1309.)- The 20th section of the Constitution provides, "that no attainder shall work corruption of blood, nor, except during the life of the offender, forfeiture of estate to the Commonwealth." This section abrogates so much of the common law forfeiture upon conviction, as affects the inherit- ance, leaving in force so much of the same as operates upon the estate during the life of the offender. The 43rd and 44th sections of the act of 1796, supra, provides that "whensoever any person shall happen to be attainted, con- victed, or outlawed for any treason, misprison of treason, murder or felony whatever, there shall be, in no case, a forfeiture to the Commonwealth, of dower, of lands or personal estate, but the same shall descend and pass in like manner as by law directed in case of persons dying intestate, nor shall any attainder work a cor- ruption of blood, any law or usage to the contrary notwithstand- ing. Saving to all and every other person and persons, bodies pol- itic and corporate, their heirs, successors, and to every of them, (other than to such offender that shall be attainted, convicted or outlawed,) all such right, title, interest, entry, lease, possession, condition, profit, commodity and hereditaments, as they or any of them had, or should, or of right ought to have before or at the time of said conviction or outlawry." If these sections stood alone and unaltered by the provisions of the statute of 1802, they might properly be construed as a sur- render of the forfeiture, to which the Commonwealth was entitled during the life of the offender, to the wife and children or those who would be entitled to the estate in case of his dying intestate, and as well in cases where the punishment of the offence was a confinement for a term of years in the penitentiary, as wlien the punishment was death. But the Legislature takes up the subject, in the fifth section of the act of 1802, supra, and provides a different mode for the disposition of the property of a convict confined for a term of years, variant from and inconsistent with the disposition of it, made by the sections quoted of the previous act, and must be re- garded as modifying and changing the said sections, in this class of cases. It provides that "where any person shall be sentenced to confinement in the penitentiary for any term exceeding one year, it shall be lawful for the wife of such person to apply to a Court of Chancery for alimony, in the manner prescribed by the act concerning alimony ; and the court to whom application is made, shall, on the production of the copy of the record of the District RIGHTS OF SURVIVING WIFE. 329 Court, decree alimony, as in other cases. The infant children of such convict, shall, for and during the time of his confinement, be regarded as orphans, and shall have guardians appointed to them by the court of the county, and may be bound out as apprentices ; and the whole proceedings, both with regard to them and the estate, shall be such as are directed" by the act concerning guardians, in- fants, masters and apprentices, passed in the year 1797. During the period of the confinement of any convict in the penitentiary, he shall be liable to be sued as if he never had been convicted, by a copy of the writ, &c., being delivered to the keeper, &c., &c., and in all other respects the same proceedings shall be had against his estate as against that of other persons. And every convict confined in the penitentiary, shall have power, by his or her last will and testa- ment in writing, to devise his or her estate, in the same manner as if he or she had never been convicted ; and on his discharge there- from, his estate, or so much thereof as has not been legally dis- posed of, shall revert to him again." Numerous clauses in this section show that the Legislature did not intend to deprive a con- vict for a term of years, of his right and title to his estate, even during his confinement in the penitentiary, much less during his life to give it to his wife and children as in cases of intestacy ; but to allow to them the use, issues and profits of the same, subject to the payment of his debts, for which latter purpose it might be sold and disposed of, by a proceeding against him and his estate. And he was authorized to devise it, as his estate, in the same manner as if he had not been convicted. Alimony imports a provision for the support of the wife out of the profits of the estate of her husband, the allowance to be reg- ulated according to the value of the estate. If the wife was en- titled to her dower and distributable portion of the estate, as in cases of intestacy, it can scarcely be believed that the Legislature would have made the provision for her recovery of alimony, by a proceeding against the hilsband as in other cases. If the estate was in the husband, then there was propriety in the provision, but if an interest was in the wife as great or greater than she would be entitled to recover, then there was no necessity or propriety in the provision. So with respect to the minor children, guardians may be ap- pointed for them, who are to be governed by the act of 1797, by which act they have no power to sell their estate, especially lands and slaves, but to apply the issues and profits only to their support, and if it will not suffice, to bind them out as apprentices. And the 330 LAW OF HUSBAND AND WIFE. power is given to the convict in the penitentiary, to dispose of his estate by will, in the same manner as if he or she had never been convicted; and on his discharge, his estate, or so much thereof as has not been legally disposed of, shall revert to him again. If the title to the estate passed to the wife and children during the life of the convict, how could he devise it by will? He might, it is true, as decided by this court in the case of Rankins' heirs v. Ran- kins' executors, 6 Monroe, 535, devise the remainder of the fee, after his death, but such power of devise can scarcely be regarded as a power to devise his or her estate in the same manner as if he or she had never been convicted. And how can the estate revert to the convict upon his discharge, if it was intended to pass to the wife and children during his life? These clauses are opposed to the idea that the estate and title was to pass and be vested in the wife and children, or others, as in the case of dying intestate, as directed by the sections quoted in the act of 1797, and clearly indi- cate an intention on the part of the Legislature, to permit all right and title in the estate, to remain with the convict, subject to the payment'of his debts and the use and support of the wife and chil- dren during his confinement, and no longer. But it is insisted that as so much of the estate only is to revert to him, as has not been legally disposed of, and as the slave in con- test was disposed of before the plaintiff's pardon or discharge, that she does not revert to the plaintiff. This argument pre-sup- poses that the right and title to the slave were in the children, and that they had a right to sell. We have shown that no such right or title was intended by the last act to pass to them ; nor is any ex- press power given to them to sell or dispose of the property by the last act, nor can any such power be implied, but the contrary may be fairly implied. The section provides a mode by which the property .of a convict may be legally disposed of, namely, for the payment of debts, and to that mode should the language of the statute be construed to apply, or to some other mode of legal dis- position, by a regular and authorized proceeding in a Court of Chancery or Law. The words "legally disposed of," are fully sat- isfied by such an application, without extending them to embrace a disposition made by the children, which is unauthorized by the whole tenor of the section. The judgment of the Circuit Court is, therefore, reversed, and cause remanded, that a new trial may be granted and farther proceedings had. .RIGHTS OF SURVIVING WIFE. , 331 c. Nature of the Estate. JOHNSON V. SHIELDS, 32 ME. 424. (1851). Dower. The land was in possession of the tenants, under a conveyance from the demandant's husband, and she had a right of dower. She deeded that right to one Coffin, but he had no posses- sion of the land. After notice to the tenants of that deed, she con- veyed her right of dower to them. This suit is brought for the benefit of Coffin. Upon these fact^ the case was submitted for a legal decision. Shepi.ey^ J. — The demandant appears to have been entitled to dower in the premises. It does not appear, that hei; husband died seized of the estate, so that she was entitled to a third part of the rents and profits of it, by virtue of the statute, chap. 95, sect. 6, before an assignment of dower. The tenants present in defence a deed of release, duly exe- cuted by the demandant on June 15, 1850, by which she released to the tenants then in possession, all her right to dower in the premises. It appears, that she had before, on May 13, 1850, by a deed of release duly executed, released her right to dower to Albert Cof- fin, who was not then in possession or connected with the title to the estate; and that the tenants had notice on June 11, 1850, that such a conveyance had been made to him. * By the common law, a widow, before her dower had been assigned, had no estate or interest in the land, of which she was dowable, and no right of entry upon it. She had only her right of action to recover her dower. Sheaf e v. O'Neil, 9 Mass. 13 ; Hil- dreth v. Thompson, 16 Mass. 191 ; Croade v. Ingraham, 13 Pick. 33 ; Stedman v. Fortune, 5 Conn. 462 ; Jackson v. Vanderheyden, ly Johns. 167; Jackson v. Aspells, 20 Johns. 412; Cox' v. Jagger, 2 Cow. 638 ; Yates v. Paddock, 10 Wend. 528 ; Williams ^. Mor- gan, I Litt. 167; Shield v. Batts, 5 J. J. Marsh 13; McCully v. Smith, 2 Bailey, 103. By the common law, no possibility, right, or title, resting in action merely, could be legally granted or released to a stranger, while it might be to one in possession of or privy to the estate, from which it accrued. Lampet's case, 10 Coke, 46; Co. Litt. 214; Com. Dig. Grant, D., and Assignment, C. A conveyance or assignment of such a possibility, right, or chose in action, although not good at law, will' be protected in equity, when it is not against the policy of the law, to permit an as- 832 LAW OF HUSBAND AND WIFE. signment or conveyance of it. Thomas v. Freeman, 2 Verm. 563 ; Higden v. Williamson, 3 P. Wms. 132; Wright v. Wright, i Ves. 409. By the common law it has ever been considered to be against its poHcy to permit mere rights of action to recover real estate or any interest in it to be conveyed or assigned ; and such conveyances have been uniformly held to pass no title or interest. As they do not convey any interest or title to the estate, the rights of the grantee or assignee rest only in the covenants contained in the con- veyance. While an owner of land was disseized, nothing passed from him by a conveyance of it. And yet his grantee has frequently been permitted to maintain an action in the name of the grantor to recover the land. This he does by the good faith and forbearance of his grantor to convey it, before judgment is recovered to the disseizee ; and not from any disability in the disseizee to convey it to the disseizor, after he has made a prior conveyance, by which nothing passed. Courts of law or of equity have not attempted to protect any rights claimed to real estate, acquired by such a con- veyance made against the policy of the law. They could not do it without giving effect to a conveyance declared by the law to be inoperative as a conveyance. While inoperative as a conveyance, it may be valid as a contract between the parties to it. The rule of the common law, which prevented an owner, who had been disseized, from conveying his land, has been abrogated in this State, by statute, chap. 91, sect. i. This statute does not embrace the right to dower, for a widow before assignment has no title or interest in the estate, and it is the "title or interest, which the grantor has'' in the land, that can be conveyed by the provisions of the statute. Nothing can in such case be conveyed by a widow, but a chose in action of a description, an assignment of which, on account of its being suited to promote litigation, and to act injuriously upon the interests of widows and of owners of lands subject to dower, the law will not protect. In the case of Buffington v. Smith, 2 Brevard, 98, a convey- ance by a widow of her right to dower appears to have been held to be an agreement between the parties on speculation, and it was decided, that the assignee could recover back no part of the pur- chase-money, upon proof of a failure of considefation. There was no legal or actual fraud committed by the tenants upon Albert Coffin by their obtaining a release of the widow's RIGHTS OF SURVIVING WIFE. 333 right to dower in their estate with knowledge that she had before released the same to him, for he acquired no interest in their estate by that deed of release. This case is more clearly relieved of fraud than was the case of Eastburn v. Wells, 7 Dana, 430. In that case a husband as- signed his wife's claim as distributee of her father's estate. The assignee instituted a suit against the executor of the father in the name of the husband and wife to recover it. The executor paid the amount to the husband with a knowledge of the assignment, and it was held, that the assignee could maintain no action against the executor for so doing. The authorities cited and relied upon by the counsel for the demandant to prove, that a right to dower may be conveyed, and that the rights of the vendee will be protected against a subsequent release of it made to the owner of the land, do not sustain that position. The decision in the case of Stedman v. Fortune, 5 Conn. 412, was made upon a statute of that State, which was decided to have the effect to make a widow a tenant in common of lands, of which the husband died seized and of which the widow was dow- able. The case of Powell v. Powell, 10 Ala. 900, decides that a widow may assign her interest in her deceased husband's estate, not that she may convey her right to dower in lands, of which the husband did not die seized. The cases of Mandeville v. Welch, 5 Wheat. 277, and of' Comegs V. Vasse, 1 Peters, 193, and of Everett v. Strong, 7 Hill, 585, relate to assignments of personal property and rights. There is nothing presented to prevent the deed of release made by the demandant to the tenants from being effectual to extinguish her right to dower in the premises demanded. Demandant nonsuit. 334 LAW OF HUSBAND AND WIFE. MCCLENAHAN v. PORTER, lo MO. 746. (1847). NaptoNj J., delivered the opinion of the court. This was a suit for dower brought by the apellee, Betsey Por- ter, in the Circuit Court of Kinderhook county, but afterwards removed to the county of Morgan, and there decided. The peti- ■ tion charged that the petitioner was deforced of her dower in a small tract of land in Kinderhook county, upon which there was a saw and grist mill. A plea was filed and an issue made up, which resulted in a judgment by the court that the petitioner be seized of her dower in said lands, and commissioners were appointed to assign the dower. These commissioners reported that the lands were not susceptible of division, being only valuable on account of the mill which was erected on them. A writ of enquiry was then awarded, and a jury was summoned to ascertain the yearly value of the plaintiff's interest, and to assess the damages she had sus- tained by reason of the deforcement. Upon this trial, it appeared that this tract of land, with the improvements upon it, had been sold in the lifetime of W. C. Porter, the husband of the petitioner, by virtue of two executions against him, and had been purchased at said sale by the defendant, McClanahan. It appeared, from the testimony introduced by both parties, that this mill, partly in con- sequence of back water from the Osage during the great freshet in that river in 1844 and 1845, and partly from inattention to re- pair on the part of McClanahan, had become almost or entirely valueless, and the principal part of the testimony on the part of the plaintiff seemed designed to show that this deterioration in value had been occasioned by the negligence of McClanahan, whilst testimony was offered in behalf of McClanahan to show that it was not by any fault of his that the property had become value- less. The defendant also proposed to prove that after the death of Porter, the husband of plaintiff, he had requested and, urged the plaintiff to join him in the occupancy of the said mill, or to call at the mill from time to time for her proportion of the rents and profits of the same, but this proof was excluded by the court. The court instructed the jury: "That in assessing the plaintiff's damages, they must esti- mate the property named in the petition according to one-third of the yearly value thereof at the time of the purchase of the same by the defendant, taking into consideration any deterioration in the yearly value thereof from the time of the alienation down to the time of the commencement of this suit, if such deterioration was not caused by any act or negligence of the defendant ; and that RIGHTS OF SURVIVING WIFE. 335 they should also assess the damages according to one-third of such value from the time of the coinmencement of this suit to the time of this verdict." But the jury were directed, in fixing the yearly value of the property, not to consider any deterioration in the value of said property from any caus^ whatever which accrued after the commencement of this suit. Several instructions were asked by the defendant, the object of which was to get an opinion from the court that McClanahan was not responsible for negligence in the management of this property, but that the plaintiff must lose from deteriorations in the value of the property, from whatever cause they originated, provided they were not occasioned by the wilful destruction or gross negligence of the defendant. These instructions were re- fused, and the damages were assessed under the instructions of the court above stated. The proper steps were taken to save excep- tions to the opinion of the court, and the case brought here by appeal. It is well settled that where lands have been alienated during the lifetime of the husband, the widow is entitled to dower in such lands according to their value at the time of the alienation, and not according to the increased value they may have acquired since the alienation by reason of the labor or expenditures of the alienee. This rule is however an exception to the general rule on the sub- ject, and has been made to favor the alienee, and place him in a more advantageous position than the heir. It has been adopted on principles of public policy, being calculated to promote the in- terest of the alienee, and at the same time not impairing the just rights of the widow. The general rule, which applies to all cases where lands descend upon the heir, the ancestor dying seized thereof, is that the widow is entitled to her assignment of dower in the lands of her deceased husband, accort^ing to their value at the time of the assignment, with damages for their detention from the time of the husband's death. This is the rule of common law as modified by the statute of Merton, and is the rule adopted by our statute. Most, if not all the cases which have been adjudicated, touch- ing this question, have been cases in which the value of the land has appreciated since the death of the husband. In these cases, the distinction is obtained to which we have just alluded. The present is a case in which the land has depreciated in value since the death of the husband, and the only question is whether, in assessing the damages and assigning the dower, this depreciation 336 LAW OF HUSBAND AND WIFE. is to be considered; whether it has arisen from extrinsic or col- lateral causes, or from any act or negligence upon the part of the alienee. We assume that the purchaser at the sheriff's sale during the lifetime of the husband stands in the same attitude with the husband's alienee, and whatever principle may be established in relation to one, will govern the rights and interest of the other. It is conceded in the instructions which the Circuit Court gave to the jury, and we presume the position is undeniable, that where the depreciation has arisen from natural or artificial causes, apart from any acts or omissions of the alienee, he is not responsible for the loss to the widow, but she must be endowed according to the value of the lands at the time of the assignment, depreciated as they are since the death of the husband. But where the depreciation has been occasioned by acts or omissions of the alieriee, the Circuit C^ourt held, that the dowress should not suffer by such deprecia- tion, but that the alienee should be responsible for the same, and the assignment should be made without reference to such depre- ciation. We think this distinction is unfounded. We know of no principle of law or of natural justice which will hold the alienee re- sponsible for a depreciation arising from causes of this character, any more than for such depreciation as arises from extrinsic and collateral causes. It has been determined in some of the courts, that in the case of an alienation by the husband, the widow shall be entitled to dower according to the increased value of the property, where such increase of value has arisen from extrinsic causes, discon- nected with the labor or expenditures of the alienee. The con- verse of this proposition is also true, that where the property has depreciated from similar causes, the widow shall only be entitled to dower according to such depreciated value. So it has been uni- formly held, as we have before stated, by all the courts, that the widow shall not be entitled to avail herself of the improvements made by the alienee. !But the converse of this last proposition i« not necessarily true. The familiar adage, applicable however rather to mathematical reasoning than to legal disquisitions, that "it is a bad rule which will not work both ways," will not set- tle this question. Because a direct proposition is true, it does not always follow that the converse of it is equally so. The rule which deprives the widow of the benefit of improvements made by her husband's alienee, is a rule established for the benefit of the alienee. It as an exception to the general rule on the subject. It does not follow that because the widow shall derive no benefit from the RIGHTS OF SURVIVING WIFE, 337 improvements made by the alienee, she shall not therefore lose by his waste and mismanagement. The rule was solely to favor the alienee, and the protection of the interests of the widow against devastations was left to another principle more powerful and more safe than any legal rule which could have been established. I mean that of self interest. Let us take the case of the heir, and see how the widow's in- terests are protected. In this case the widow has her dower as- signed according to the value of the lands at the time of the as- signment. Whatever may be the condition of the estate, whether it has improved by the good management and judicious expendi- tures of the heir, or has appreciated by the rise of the lands in the neighborhood, or from other causes, she takes her proportion in the condition in which it is found at the time of assigning her dower. So if the lands have depreciated, either from the decline of land generally, or from gross mismanagement and waste of the estate by the heir, the same rule of assignment must be observed. The heir is tenant in fee, and not responsible for waste. Even a tenant in tail was not responsible for waste, i Cruise Dig., p. 60, sec. 32. The widow is not a tenant in common with the heir ; her right rests in action only, and at the common law, after the expiraljjon of her quarantine, the heir could expel her and put her to her suit. Jackson v. O'Donaghy, 7 John. Rep., 247. The dow- ress takes in severalty, and is neither a joint tenant nor a tenant in common with the heir. Coke, Lit., fol. 35, b. If the heir thinks proper to cut down all the timber, or pull down all the houses on the estate, such devastation will not be taken in consideration in the assignment of the widow's dower. I allude not now to the question of damages, for no question of that sort arises in this case, but to the rule of assignment. If we revert to the original mode of assigning dower, which was by metes and bounds, it be- comes obvious that this assignment must take place without refer- ence to any injury the estate may have received from the heir. The question of damages in such case would be another question. As the widow is entitled to damages from the time of the death of her husband, where he has died seized, these damages would of course be proportioned to the actual value of her dower at the dif- ferent periods from the death of the husband to the institution of the suit or the time of assignment. This is the rule laid down by our statute, which says that these damages shall be "the value of the whole dower to her belonging, from the time of her husband's death." And this was the rule recognized by the court in the 338 LAW OF HUSBAND AND WIFE. case of Rankin and others v. Oliphant, g Mo. Rep., 239. In the present case, the widow was only entitled to damages from the time of giving notice of her claim, and as no notice was given, except by commencing suit, and the assignment of dower was considered, by the Circuit Court as relating back to that period, the same value which regulated the assignment would, according to the principles adopted by that court in relation to the time at which the value of the property was to be estimated, be the rule for estimating the damages from the commencement of the suit down to the finding of the jury. If, then, it be the law that, as against the heir, the widow would take her dower , according to the value of the land at the time of the assignment, however much it may have depreciated iv value since the death of her husband, and from whatever causes this depreciation may have arisen, can it be that the alienee of the husband is in a worse condition than the heir ? We have seen that in one respect an exception has been made to favor him. Is there any principle of law or of natural justice which requires an owner of lands to improve them or to make such repairs as may prevent an estate from going to waste ? Is not this wisely left to that sense of self interest which usually governs men in the management of their own affairs '^ The heirs and alienee have an interest propor- tionate to that of the widow, we will suppose, of at least six to one. Whatever impairs the value of the estate, necessarily injures the interests of the heirs or alienee in a much greater proportion than that of the widow. The law did not intend that a jury of twelve men, however impartial they might be, should decide for a land owner what disposition he should make of his propyerty. The circumstances of the present case would be sufficient to show the impolicy and impropriety of such interference. — Here is a small tract of land, whose whole value arises from a saw and grist mill erected on it, driven by water power. The value of such property depends, as every day's observation shows, on a variety of cir- cumstances, some of which are beyond the control of the propri- etor. — The stability of the dam — the constancy of the water course — the mechanical skill of the owner, are frequently all necessary to make such erections profitable in this country, and in a sparsely settled region ; and in the vicinity of the Osage or Missouri, whose waters are sometimes raised to such a height as to fill up, and. even overflow for months in succession, the small streams which are tributary to them, all these circumstances combined are insufficient to secure a profit to the mill owners. — Shall a jury, in such a case, RIGHTS OF SURVIVING WIFE. 339 be permitted to determine for the proprietor whether it is his inter- est or not to keep his mill in repair, or whether he may abandon it as useless and unprofitable? This is a matter for the proprietor himself to decide. He might have used the mills or suffered them to rot down, or convert the timbers into firewood, as he thought best for his interests. This right he acquired by the purchase of the estate. He is certainly responsible in damages to th^ widow from the time of her demand, but these damages would be exactly proportioned to the value of her dower from the time of demand to the time of assessment. It would not affect his rights to make such alterations in the nature or value of the property as he' might think best. These considerations suggest another question, which, though it was not raised or discussed in the case here, may yet require notice. The Circuit Court directed the jury not to take into con- sideration any deterioration of the property after the commence- ment of the suit, no matter from what causes it originated. I do not know that there was any proof of a material change in the value of this property after the commencement of this suit, so as to make this question important in the final determination of this case, but cases might arise in which such a question would be very important. It seems to have been the opinion of the court, that the assignment by the jury related back to the commencement of the suit, and the witnesses would only be permitted to speak of the condition of the property at that time. , This unquestionably is the practice in suits at law ordinarily, yet I am unable to see the pro- priety of adopting it in a suit for dower. If the assignment be made by metes and bounds, as it must be where it is practicable, do the jury, who make such assignment, make it with reference to any other condition of the land than the one in which they find it at the time they are making the jtssignment ? I presume not. The sub.«titution then of an estimated amount of yearly value for a specific allotment of a portion of the land, must be governed by the same principles which regulate the specific assignment in land. If, after the commencement of the suit, and before the time of the trial, the buildings on the premises are destroyed by fire, woald the jury be authorized to consider the value of these build- ings in their assessment? In fixing the damages, they would of course consider the value of the buildings uptil the period of their destruction, but not beyond that; and if, in the assignment of dower, cither by metes and bounds, or by the statutory substitute of money, they take the value of these destroyed buildings in their 340 LAW OF HUSBAND AND WIFE. estimate, they cannot be said to assign one-third of the lands to the widow, but some other proportion. The widow has nothing but a light in action until dower is actually assigned to her; she cannot maintain ejectment before an assignment. Jackson v. Van- derheyden, ij John. R., 167. The idea that she is availing herself of the process of the court, for the purpose of recovering the pos- session of the land to which she has title, is a mistaken one. She IS tenant in dower after her dower is assigned, and not until then. As the jury are required to view the premises in person, and lay off her proportion in metes and bounds, they must do so with refer- ence to the value at the time this personal inspection and exam- ination is made, and not with a view to its value months or years before, when the suit for dower was instituted. If the contrary were the law, then the jury must have witnesses before them for the purpose of ascertaining what amount of injury had been done the estate, either by the acts of God or of the tenant. — But no such authority has been given to the jury by our law, and it is there- fore evident that no such action was contemplated. And surely the same principle which governs the jury in laying off the wid- ow's dower by metes and bounds, must be the rule of action for the jury which assesses in money the yearly value of that dower, after it has been ascertained that a division by metes and bounds is im- practicable. I have not referred to any authorities upon these questions, because I have found none in which the precise points were in- volved ; but in several cases which were referred to in the case of Rankin and others v. Oliphant, the courts seemed to assume the law to be as I have stated it. Chancellor Kent, in reviewing the state of judicial opinion on this subject, in his -commentaries, though he does not consider directly the law in cases of deprecia- tion of property, seems to assume it as settled, that the widow takes her dower according to such depreciated value. In speak- ing of the rules by which the alienee is favored in having his im- provements exempted from the claims of the dowress, he says: "The rule is founded in justice and sound policy; and whether the land be improved in value or be impaired by acts of the party sub- sequently, the endowment, in every event of that kind, is to be according to the value at the time of the assignment, if the land descended to the heir." Again, in discussing the question whether the widow shall be entitled to the advantage of the increased value of the land arising from extrinsic and collateral causes uncon- nected with the direct improvements of the alienee, he says : "The RIGHTS OF SURVIVING WIFE. 341 allowance would seem to be reasonable and just, inasmuch as the widow takes the risk of the deterioration of the estate arising from public misfortunes, or the acts of the party." It must follow that the widow is equally subjected to this risk in cases of an alienation of the land during her husband's lifetime, as where the land has descended to the heir ^for if the law were otherwise, the condition of the alienee would be worse than that of the heir. Whereas it has been the manifest policy of the law to give the alienee all the ad- vantages of the heir, and, in one important particular, to give him a decided preference. The other Judges concurring, the judgment is reversed and the cause remanded. SHEARER V. RANGER, 22 PICK. 447. (1839). This was an action of covenant broken, founded upon the alleged breach of a covenant against incumbrances, which was contained in a deed from the defendant to the plaintiff, dated the 2d of September, 1836. By an agreed statement of facts it appeared, that the defend- ant derived his title to the premises conveyed to the plaintiff, by a deed from Rodolphus Anderson ; that Anderson, at the time of his conveyance to the defendant, had a wife, who was still living at the time when the present action was commenced, and had not then released her dower in the granted premises; that Anderson and his wife, on the 17th of August, 1837, jointly executed a deed of release of her right of dower to the plaintiff, for the consideration of one dollar paid by him; and_that the plaintiff had never been disturbed in his possession of the premises. If the court should be of opinion, that the action could not be maintined, the plaintiff was to become nonsuit; otherwise judg- ment was to be entered in his favor, and damages assessed at one dollar. Wilde, J., drew up the opinion of the court. The only ques- tion presented by the statement of facts in this case is, whether an inchoate or contingent right of dower is an existing incumbrance, amounting to a breach of a covenant against incumbrances. We had thought that this question had been settled affirmatively; but as a doubt was suggested by Story, J., in the case of Powell v. Munson, &c., 3 Mason, 355, we have taken time to look into the authorities on this point. The case oiWood v. Stratton was cited by the plainitff's coun- 342 LAW OF HUSBAND AND WIFE. sel, in which it was said that this question had been decided affirm- atively by this court. That case was not reported ; but we have examined the pleadings in the case, and we find that the question was raised and so decided. The question has been decided in the same way in New York and in Maine. Such was the decision in Jones V. Gardiner, lo Johns. R. 266, and m Porter v. Noyes, 2 Greenl. 27. In the latter case the question was argued by able counsel ; and it was objected then, as it has been in this case, that an inchoate right of dower is a mere possibility of incumbrance, too remote and uncertain to be regarded by the law. The objec- tion was overruled, and, as we think, according to the true mean- ing of the covenant against incumbrances. That covenant ought to be liberally construed, so as to extend to all claims and liens, whether contingent or not. In Prescott v. Trueman, 4 Mass. R. 627, it was held, that a paramount right is an incumbrance, al- though perhaps it might never be enforced against the grantee. And it is remarked by Parsons, C. J., in' delivering the opinion of the court, that "the law thus settled will be generally convenient. For if we are mistaken in the law, the grantee can have no remedy on the usual covenants in our deeds of conveyance, until he is evicted. In the mean time he may be unwilling to make improve- ments ; and when he is evicted, the grantor may be unable to make him any compensation." This reasoning is applicable to all incumbrances depending on a future contingency; and it is founded on the principle, that the usual covenant, in deeds of conveyance, against incumbrances, extends to all adverse claims and liens on the estate conveyed, whereby the same may be defeated, wholly or in part, whether the claims or liens be uncertain and contingent or otherwise. The ben-" eficial interest which a mortgagee has in an estate mortgaged, for the purpose of securing him against future liabilities,, or for future advances, is uncertain and contingent, but such a mortgage is un- doubtedly an incumbrance. And so is an attachment, although de- pending on many contingencies. It has been argued, that an at- tachment is not an incumbrance, within the meaning of the cov- enant against incumbrances ; and the case of Barnard v. Fisher, is relied on as establishing this principle. But that case only de- cides, that where there are two attachments on real estate, and the second attaching creditor extends his execution on the estate be- fore judgment is rendered in the suit wherein the previous at- tachment had been made, the appraisers would not be authorized to deduct from the appraised value of the land, the supposed RIGHTS OF SURVIVING WIFE. 343 amount of the incumbrance from the previous attachment. The proper course in such a case is, for the second attaching creditor to continue his action until the suit, on which the prior attachment was made, is concluded. And that would be the proper course to pursue, if an action were brought for the breach of a covenant against an incumbrance, by an attachment of the estate conveyed before the conveyance. But there is no necessity of any such de- lay as to other incumbrances, especially where the plaintiff is only entitled to nominal damages. The only question therefore in this case is, whether an inchoate right of dower is an incumbrance, and we have no doubt, for the reasons given, and on authority, that it is. Judgment for the plaintiff. d. What Law Governs Dower. DUNCAN V. DICK, i WALKER'S REP. (MISS.) 281. (1827). Opinion of the Court by the Hon. Geo. Winchester. The statutory laws of this state provide, that when any per- son shall die intestate, leaving no child or children, or descendants of them, his widow shall have as her dower, one-half of his real estate for the term of her natural life, and when a husband dies intestate, if there be no children, or but one child, she shall be entitled to one half of the personal estate. Revised Code, page 280. Does this law of dower extend to the widow of a non resi- dent, or is it confined to the widows of resident citizens ? Through- out the laws, the language designating the widows who are en- titled, is general and unlimited. When any person shall die intes- tate, his widow shall have dower, or "when a husband dies intes- tate, his widow shall have dower," any widow claiming dower, shall file her petition, &c., and if the intention of the legislature should be ascertained by the plain, natural and obvious meaning of the language used, no question could exist, but the widow of a non-resident, is equally entitled to dower, in the real and personal estate of the intestate husband, as the widow of a resident. But it is contended, that her right of dower is not founded in the law but in the contract. The contract of marriage, having been entered into in Louisiana, and the husband and wife domiciled there, until the day of his death, she is entitled to no other rights in the estate of her husband wherever situated, than the laws of that state give her. That there is a tacit and implied contract em- bracing the laws of that state alone, where the marriage contract 344 LAW OF HUSBAND AND "WIFE. was made, by virtue of which laws, the husband and wife have a community of property, and of acquests and gains acquired after the marriage, which community extends to property situated in this state, and is therefore a bar to her dower, or if the community do not extend to property situated in this state; she is still not entitled, because the contract of marriage being made with a view to the laws of Louisiana alone, and its extent ascertained by the laws of that state, there is a tacit understanding, that she shall not have dower in property situated in this state. By our laws, a. widow can be barred of dower only in two ways ; by an express and valid agreement relinquishing her dower, or by an effectual devise and bequest of her husband in lieu of dower. But we will consider the grounds taken, so that the mar- riage contract creates a community in the property situated in this State, and that the wife is entitled to such share as she brought into the community, and one-half the acquests and gains acquired since, which, therefore, is a bar to her dower. This argument assumes, that the laws of Louisiana, impliedly constitute a part of the terms of the contract of marriage, and if so, to be of any force, the laws of Louisiana must have a jurisdiction over real and per- sonal property situated in this state. But nothing is more uni- versally settled, than that this state has sole and exclusive jurisdic- tion over property situated within this state. The laws of Louis- iana, can neither create nor take away any rights, or in any man- ner regulate property, beyond its limits and under the jurisdiction of another separate and independent sovereignty. They cannot create a community of property situated here, and, consequently, a marriage contract entered into under them, by embracing them, cannot be supposed to imply such community. In accordance with this, no case can be found of the widow of a person domiciled in a country where the civil law prevails, prosecuting any claim for acquests and gains, or any other right issuing from a community in the courts of a common law country : the commercial intercourse which has so long and extensively existed between common and civil law countries, must have originated such cases, if the rights had been understood to exist. This reduces the question to the second point, to wit : that the widow has no rights in the property situated here, because her rights are founded solely in the mar- riage contract, and extend only to such rights as the laws of Louis- iana give her ; those rights alone being contemplated, by the par- ties when the contract was entered into. This is assuming the point in controversy and there is no authority for supposing the RIGHTS OF SURVIVING WIFE. 345 parties did not contemplate their rights, under the laws of another state, because the parties and the laws of Louisiana are silent upon those rights. They might, or might not have understood and had in view those rights, but this is not a proper subject of enquiry for a court. The terms of the marriage contract only extend to form the relationship of husband and wife. When this domestic rela- tionship is formed by a valid contract, the laws of every country regulate the rights, obligations, and duties, as they do those of parent and child. No better reason can be given why the extent of the rights to property created in consequence of -the marriage, should be ascertained and limited by the laws of the state, where the cbntract is made, than that all other rights, obligations, duties, and disabilities which the laws attach to the relationship, should be so ascertained and limited. And if the rights of the wife are to he ascertained by the marriage contract, embracing and confined to the laws of the state where the contract is made, for the same rea- son the rights of the child, should be so ascertained ; they being as much founded in the contract of marriage, the laws creating them being as much a part of the contract, and with as good reason sup- posed to be in the contemplation of the parties at the time of the contract. The rights of both are alike a consequence of a valid marriage, and are founded not in the marriage contract, but in the laws which regulate their relative rights, duties, and obligations ; nothing but the validity and existence of the marriage contract, is ascertained by the laws of the country, where the contract is made. It is admitted that if the husband and wife had changed their domicil, and become domiciled in this state, that their rights to property acquired here, after the removal, would be governed by the laws of this state. But if the laws of this state were not embraced in the contract of marriage, at the time it was contracted, could a subsequent removal, which might be made too, even against the will of the wife, so essentially alter the terms of the contract, as to embrace laws not originally contemplated by the parties? And yet such is the Consequence, if the rights of the wife are founded-in the marriage contract, impliedly embracing, only the laws of the state, when it is made. Had the legislature intended to confine the provision for dower, to the widows of such persons as were married or resident, at the time of their death, within this state, they would have so qualified and limited the pro- visions ; but their language extends to the widows of any persons, dying intestate, leaving lands, tenements, and hereditaments or goods and chattels, and their marriage or residence in another 346 LAW OP HUSBAND AND WIFE. state, forms no execption, and they are no bar by the laws of this state, to the widows' right of dower. But an objection is raised,- to her right of dower in the personal estate, that it cannot be con- sidered situated under the jurisdiction of our laws, but by the comity of nations is considered a part of the totality of the wealth of Louisiana, is subject to be withdrawn by the owner, and was never intended by him to be subjected to dower or distribution according to the laws of this state. The objection is founded upon the construction given in Great Britain, and most of the United States to their statutes of distributions among heirs. In the con- struction of these statutes, personal property has been deemed to have no "situs" and not to fall under the disposition of the laws where it is found, but under the laws of the state where the intes- tate had his domicil. This construction of the statute of distribu- tions was reasonable, and undoubtedly agreeable, to the true in- tention of the statutes, so long as it was confined to transient moveables, such as accompanied a man's person, or were passing in transitu through another country, for the purposes of com- merce, which moveables without any violence to the statute, may be considered as not subject, to the jurisdiction of such laws, or situated under them. But it was also extended to permanent moveables, upon principles of inter-national comity. Personal property has, however, never been considered to any other pur- pose than distribution among heirs as situated in and under the jurisdiction of the laws of the country, where the owner was domiciled. Under the statutes of distributions, among creditors, and of escheats, after the death of the owner and of the attachments, taxation, &c., before his death, personal property is construed to be situated under the laws, of the state where it is found to be subject to these laws and not to the laws of the state where the owner is domiciled. The privileges which the laws of Louisiana give to some creditors over others, in their distributon among creditors could not be supported in our courts, against the property adminis- tered here. It is only in the distribution among heirs, that the rule has been adopted of giving a preference to the foreign laws, and the reasons should be equally strong for giving the same con- struction to statute of dower in personal property, yet it would be departing from the plain meaning and evident intention of the legislature ; it would be rather altering the law and making it con- form to principles of national policy and international comity, the proper province of the legislature, than giving a judicial construe- RIGHT^S OF SURVIVING WIFE. 347 tion to the statute according to its true meaning and intent. "The legislature declare it to be their intent that a widow accepting or abiding by a devise, in lieu of h^r legal right, shall be considered as a purchaser, with a fair consideration." See Revised Code, page 41. Her dower in the personal property is reserved to her in all cases "when any person shall die possessed of goods and chatties, or personal estate not bequeathed;" and the personal estate is in this case as much subject to her dower, as the real estate. Judgment of the orpharls court affirmed. DAVIS V. OTERRALL, 4 lA. 168. (1853). Appeal from Dubuque District Court. Opinion by Greene, J. — This suit was commenced in the County Court of Dubuque by Jane B. O'Ferrall against Timothy Davis, for dower in lot 477, A, in the city of Dubuque, which was deeded by F. K. O'Ferrall to E. M. Bissell, in 1840. The plaintiff recovered, and one third of the lot in question was set apart to her in> fee simple. On appeal to the District Court, this judgment was affirmed. The only question involved in this case is, whether the de- mandant is entitled to dower in fee simple, or only to a life estate. The statute in force at the time O'Ferrall conveyed the lot to Bissell was that of 1839, p. 485, which authorized dower in the wife, according to the course of the common law. Under this law the widow is entitled, during her natural life, to one third part of all the lands and tenements in which her husband was seized, at any time during coverture. But as O'Ferrall died after tl>e Code took effect, and as the Code provides that a widow's third of the real esta,te shall be in fee simple, it is claimed that Mrs. O'Ferrall shall have absolute title to the dower estate set apart to her. In support of this posi- tion, it is argued that the dower estate, during the husband's life, is inchoate and contingent, and is subject to legislation. So far as such legislation affects merely the dower, as between the husband and the wife, or widow and the heirs, or so far as it relates to the property, at the time of his death, the doctrine assumed for the doweress would be appropriate, and without serious objection ; but not so when such legislation would affect the rights of innocent 348 LAW OP HUSBAND AND WIFE. purchasers. Vested rights and the obligations of contracts should not be impaired. Although the doctrine seems to be universally recognized that courts favor dower, this favor should not be carried so far as to do violence to fundamental principles, and to the rights of bona fide purchasers. As the law under which a contract is made en- ters into and becomes a part of it, surely the law in force at the time the sale and conveyance were made should govern in prefer- ence to a subsequent law, which did violence to the intentions of the parties, and impaired their contract. At the time of the sale, O'Ferrall's interest in the land was subject only to the contingent dower estate, for life. The pur- chaser bought subject to that contingency, knowing that if it ever became an incumbrance, upon his land, it could be but temporary, and then the entire estate would revert to him and his legal repre- sentatives. As Bissell bought O'Ferrall's entire interest in the lot, subject only to dower for life, upon the contingency of survivor- ship, it follows that his title to the property was fully vested, and could not be impaired by subsequent legislation. Every statute which takes away or impairs a vested right, acquired under pre- vious laws, must be considered retrospective, and opposed to those principles of jurisprudence which have received universal com- mendation. But there is nothing in the Code^ in reference to the rights of wives and widows that contemplates a retrospective op- eration, and therefore no such construction can be justified. Whit- man V. Hopegood, ID Mass., 437; Somersett v. Dighton, I2ib., 383, 385 ; Medford v. Learned, 16 ib., 215. The Code completely abrogates the general doctrine of dow- er. It substitutes a new system, and makes the wile, in effect, a joint owner of one third of all real estate in which the husband, at any time during the marriage, had a legal or equitable interest. In like manner, the husband is entitled to the same interest in the lands acquired by the wife, and so far as the conveyance is con- cerned, a wife may convey as a feme sole, having a joint interest in the land, or "in the same manner as other persons." A change so complete can have no connecting link with, or retroactive effect upon prior statutes regulating a wife's dower. And as the hus- band was not at any time seized of the land in question, under the Code, it can impart no validity to the claim that the widow's life estate was thereby converted into an absolute title in fee. If one third of an estate for life can thus be converted by retro- spective construction into an absolute fee, upon the same principle. RIGHTS OF SURVIVING WIPE. 349 one half or thre fourths of the real estate, sold for a full consid- eration by the husband, may be legislated and construed from the defenseless purchaser to the cravings of the insatiable widow. We greatly admire, and would proudly support, the liberality of our laws, in making bountiful endowment for widows, but we cannot carry that liberality so far as to make laws operate retro- spectively, and thus impair the obligation of contracts. We would give them their full share of the husband's estate; we would in- cline strongly towards them in doubtful or evenly balanced cases, and enforce every legal safeguard for the wife's benefit, but we cannot, with all our predilection for them, trample vested rights under our feet, and deprive purchasers of their long established rights, by giving to prospective laws a retrospective power. The case of Reynolds v. Reynolds, 24 Wend., 193, and other cases cited in support of the decision below, fall far short of the facts and principles involved in this case. If O'Ferrall had at any time been seized of the lot in question, after the Code took effect, it would then follow that the widow should have her joint interest in the property, agreeable to that law. But as he had transferred his title to the lot long before, and as that part of the Code does not claim to divest antecedent rights, we can find nothing in principle or authority to justify the de- mandant's claim. We conclude, then, that the appellee can only claim dower for life, under the statute in force at the time her husband alienated the property; and that the rights of the purchaser could not be impaired by subsequent legislation. Judgment reversed. e. To What Estates Dower Attaches. SUMMERS V. BABB, 13 ILL. 483. (1851). Treat, C. J. In May, 1838, W. W. Babb and Nancy, his wife, conveyed certain lands to Butterworth. In July, 1841, in a suit in chancery, brought by the judgment creditors bf Babb, the conveyance was set aside as fraudulent, and the lands were de- creed to be sold for the satisfaction of their judgments. In Oc- tober, 1841, the land were sold under the decree, and conveyed to the purchasers. In October, 1843, Butterworth reconveyed the lands to Babb. In November, 1844, the lands were conveyed by the purchasers at the sale to Summers, who entered into posses- sion and made valuable improvements thereon. Babb died in 350 LAW OF HUSBAND AND WIFE. October, 1849, his wife surviving him. In February, 1851, the widow filed a bill in chancery against Summers, claiming dower in the lands. The foregoing facts appear from the bill and answer. At the September term, 1851, the court made a decree, appointing commissioners to allot the complainant dower in the lands, and directing them not to allow her the benefit of any improvements made theron by the defendant. The entering of that decree is assigned for error. First. Was the complainant entitled to dower in the prem- ises ? This question was in principle settled in Blain v. Harrison; 1 1 111. 384. In that case, the lands of Harrison were sold on execu- tion. Subsequently,' and before the time for redemption had ex- pired, Harrison and his wife conveyed the same lands by way of mortgage. The premises were not redeemed, and the purchasers obtained a sheriff's deed. Harrison afterwards died, and his wid- ow claimed dower in the lands. This court decided that her right to dower was not barred by the execution of the mortgage, be- cause the estate mortgaged was extinguished by the failyre to redeem from the prior sale, and the mortgage could not operate upon the contingent right of dower alone. It was held, in Stinson V. Sumner, 9 Mass. 143, where a wife released her claim to dower by joining with her husband in a conveyance, and the grantee re- covered back the purchase-money because of a defect in the title, that the release of dower thereby became inoperative, and did not bar her right to dower in the land after the death of her husband. It was decided in Robertson v. Bates, 3 Met. 40, where a wife joined her husband in a conveyance, and a creditor of the latter afterwards levied on the land, and recovered it in a real action against the grantee, on the ground that the deed was fraudulent as to creditors, that the wife was restored to her right and could re- cover dower in the land. These decisions proceed on the grouna that the mere right to dower cannot be separated from the prin- cipal estate. The right to dower, though consummate on the death of the husband, rests in action only. Before assignment, it cannot be aliened by the widow, nor sold on execution against her. She may release it to the owner of the fee, but cannot transfer it to a stranger. It attends the estate, and is only severed from it by assignment. When assigned, it becomes as much the subject-mat- ter of sale and transfer as any other life estate in lands. There is nothing in the present case to take it out of the operation of this rule. The creditors of Babb avoided the conveyaiTce to Butter- worth, and thereby defeated the estate upon which the release of RIGHTS OF SURVIVING WIFE. 351 dower was designed to operate. The complainant was restored to her right to dower in the lands, and she has since done no act es- topping her from asserting it. Second. Was the complainant entitled to the benefit of the improvements, made on the land by the defendant ? This question must be answered in the negative. By the common law, in the case of an alienation by the husband, the widow takes her dower according to the value of the land at the time of the alienation, and not according to its subsequent increased or improved value. 4 Kent's Com. 65. The rule is well established in this country, that she is not dowable of improvements put upon the land subsequent to the alienation by her husband. The rule is founded in reasons of public policy. It tends to encourage the making of improve- ments and to advance the" growth and settlement of the country. It works no injustice to the dowress. She has no just claim to the enhanced value of the land, caused by the labor and expendi- ture of the purchaser. A sale of the land on execution against the husband, is equivalent to an alienation by him. There is no reason for making any distinction between the two classes of purchasers. In either case, the purchaser acquires the entire interest of the husband. Our statute does not define dower. It provides for the assignment, but leaves the interest to be determined at common law. The authorities all agree, that, in the assignment of dower, the widow is not to be permitted to participate in the value of im- provements made after the estate passed out of the husband. Thompson v. Morrow, 5 Serg. & Rawle, 289 ; Walker v. Schuyler, 10 Wend. 481; Catlin v. Ware, 9 Mass. 218; Tod v. Baylor, 4 Leigh, 498 ; Law ton v. Merton, 6 Dana, 471 ; Barney v. Fr owner, 9 Ala. 901 ; Russell v. Gee, 2 Mills, S. C. R. 254; Allen v. McCoy, 8 Ohio, 418; Wooldridge v. Wilkins, 3 How. Miss. R. 360; Mc- Clanahan v. Porter, 10 Missouri, 746 ; Wilson v. Oatman, 2 Blackf . 223 ; Lewis v. James, 8 Humph. 537 ; Green v. Tenant, 2 Harring- ton, 336. There is some diversity of opinion upon the question, whether the widow is entitled to the benefit of the increased value of the land, arising from other causes than the labor and expendi- ture of alienee. But the weight of authority, in the United States, is decidedly in favor of her right. On this question. Chancellor Kent remarks: "The better and the more reasonable American doctrine on this subject I apprehend to be, that the improved value of the land, from which the widow is to be excluded in the assign- ment of her dower, as against a purchaser from her husband, is that which hag arisen from the actual labor and money/ of the 352 LAW OP HUSBAND AND WIFE. owner, and not from that which has arisen from extrinsic or gen- eral causes." 4 Kent's Com. 68. In Powell v. Munson and Brim- Held Manufacturing Co., 3 Mason, 347, Justice Story, after a thor- ough examination of the question, arrives at the same conclusion. He says : "Upon the whole, my judgment is, that the dower must be adjudged according to the value of the land in controversy at the time of the assignment, excluding all the increased value from the improvements made upon the premises by the alienees ; leaving to the dowress the full benefit of any increase of value arising from circumstances unconnected with these improvements." The direction of the Circuit Court to the commissioners was right. The decree is affirmed, and the cause is remanded for fur- ther proceedings under the decree. STANWOOD V. DUNNING,'i4 ME. 290. {1837). This was an action of dower, and was submitted to the opin- ion of the court from an agreed statement of facts. From this it appeared, that David Stanwood, the husband of the demandant, was the son of William Stanwood, and they had both died before the demand of dower in this action. A deed of the premises in which dower is claimed was made from William to David, dated March i, 1824, and acknowledged, March 6, 1824. David Stan- wood conveyed the same premises to Charles Stanwood by deed dated March 6, 1824, and acknowledged the same day, both of which deeds were executed at the same time and place, although bearing different dates. The marriage before the time the deed was made to David, and demand of dower, were admitted. The fendants claim under conveyances from Charles Stanwood. It was agreed, that the object of the father was to divide the estate between the sons ; that Charles gave David his notes for the farm at the same time, and that David was notoriously insolvent, and that all appeared to be done according to previous arrangement " between the parties. If admissible, on objection made by defend- ants, the plaintiff can prove by parol that this arrangement was made merely to protect the property from David's creditors, so that it might be held for his benefit, and that of his family ; that the witness knew this fact from conversations with William, David and Charles ; that the farm was once in the hands of the witness, and that when he sold it he tried to obtain a release from the plaintiff of her right of dower, but could not, and in consequence RIGHTS OF SURVIVING WIFE. 353 thereof sold the premises for $1200 less than he otherwise should have had, and that he sold subject to her rjght. It was also agreed, if the paper is admissible in evidence, that, on the same 6th of March, 1824, Charles Stanwood gave a life lease in the same prem- ises to the said William Stanwood. The only question raised, was whether the plaintiff was entitled to dower in the premises. The case was argued in writing. The opinion of the court was drawn up by Emery, J. — The only question in this case is, whether on the facts legally and properly proved, David Stanwood had such sei- sin of the premises as could entitle the demandant to dower. Premising, that family settlements made without fraud, are just- ly entitled to the favorable consideration of courts, we proceed to suggest our ideas of the merits of the case, as disclosed in the agreed statements of facts. The claim of dower, it has long been said, is to be favored. Still, unless the husband were legally and beneficially seised of the estate during the coverture, the wife is not entitled to dower. But if the land vests in the husband but for a single moment beneficially for his own use, the wife shall be endowed. It is said, that the case cited by plaintiff from Cro. Eliz., 503, which is Broughton v. Randall, is differently reported in Noy, 64. In Cro. Eliz., it is said, the title of the feme to recover dower was, that the father and son were joint tenants to them and the heirs of the son; and they were both hanged in one cart; but because the son, as was deposed by witnesses, survived, as appeared by some tokens, viz., his shaking his legs, his feme thereupon de- manded dower, and upon this issue, nunques seizu dowers, this matter was found for the demandant. In Roper on Property, ist vol. 369, the case of Broughton v. Randall is thus stated. A father was tenant for life, remainder to his son in tail, remainder to the right heirs of the father. Both of them were attainted for felony and executed together. The son had no issue, and the father left a widow. Evidence was given of the father having moved or "struggled after the son, and the father's widow claimed dower of the estate, and it was adjudged to her. The principle appears to be this: that the instant the father survived the son, the estate for life of the father, united with the remainder in fee limited to him upon the determination of the vested estate tajl in the son, so that the less estate having merged in the greater, the father became seised of the freehold and hiheritance for a moment during the marriage to which dower attached itself. 354 LAW OF HUSBAND AND WIFE. But if the instantaneous seisin be merely transitory, that is, when the very same act by which the husband acquires the fee, takes it out of him, so that he is merely the conduit for passing it, and takes no interest, such a momentary seisin will not entitle his widow to dower. An illustration is given in the English books, that if lands be granted to the husband and his heirs by a fine, who immediately by the same fine, renders it back to the conusor, the husband's widow will not be entitled to dower of such an instantaneous sei- sin. Dixon V. Harrison, Vaughan, 41 ; Cro. Car., 191 ; Co. Lit. 31. In this case the marriage, death of the husband, and demand of dower are admitted, but his seisin is denied. Without going into an examination of the law relating to the four species of fines used in England, we may remark, that it is considered there as one of the most valuable of the common as- surances of that realm, being in fact a fictitious proceeding, to transfer or secure real property, by a mode more efficacious than ordinary conveyances, i Co. Lit., 121, a. But, to show how this mode of passing property bears on the seisin of the husband, so far as instantaneous in the case of a fine, compared with it in case of bargain and sale, the case of Nash v. Preston, Cro. Car., 191, is not inappropriate. It was a bill in chancery. "J- S., being seised in fee, by indenture enrolled, bar- gains and sells to the husband for £120, in consideration that he shall redemise it to him and his wife for their lives, rendering a pepper corn; and, with a condition that, if he paid the £120 at the end of 20 years, the bargain and sale shall be void. He re- demised it accordingly and dies; his wife brings dower. The question was whether the plaintiff shall be relieved against this title of dower. Jones, J., and Croke, to whom the bill was re- ferred, conceived it to be against equity and the agreement of the husband at the time of the purchase, that he should have it against the lessees, for it was intended that they should have it redemised immediately to them as soon as they parted with it; and it is but in nature of a mortgage; and upon a mortgage, if land be rede- mised, the wife of the mortgagee shall not have dower. And if a husband take a fine sur cognisance de droit comme ceo, and render arrear, although it was once the husband's, yet his wife shall not have dower, for it is in him and out of him, quasi tino iiatu, and by one and the same act. Yet, in this case, they conceived that by the law she is to have dower; for the bargain and sale, the land is vested in the husband, and thereby his wife entitled to have dowerj RIGHTS OF SURVIVING WIFE. 355 and when he redemises it upon the former agreement, yet the les- sees are to receive it subject to this title of dower; and it was his folly that he did not conjoin another with the bargainee, as is the ancient course in mortgages. And when she is dowable by act or rule in law, a court of equity shall not bar her to claim her dower, for it is against the rule of law, viz., "where no fraud or covin is, a court of equity will not relieve." And upon conference with the other Justices at Sergeant's Inn, upon this question, who were of the same judgment, Jones and Croke certified their opinion to the Court of Chancery, "that the wife of the bargainee was to have dower and that a court of equity ought not to preclude her there- of." The case of Holbrook v. Finney, 4 Mass., 566, recognizes that which we have just recited as sound law. In the case now under discussion, the deed from William Stanwood to David Stanwood bears date the ist of March, 1824, is acknowledged on the 6th of the same month, and. recorded March i6th, 1824. It is a deed of bargain and sale to said David, in fee for the consideration of love and affection with general war- ranty. The deed from David Stanwood to Charles Stanwood is dated the 6th of March, 1824, acknowledged the same day, and recorded March nth, 1824. But if requisite so to examine in order to help to a decision, it is manifest from inspecting the deed from William to Charles Stanwood, that in the order of time the deed to David from William was made first, and then it is apparent that David became rightfully seized in fee, and beneficially so, though for a short time. The fee was not rendered back by David to William, quasi uno iiatu, and therefore the demandant is entitled to dower. It is agreed that the object of the father was to divide his estate among his sons. Nothing could more strongly evince the pro- priety of leaving the law to raise the future benefit to the wife of David in dower after his decease, if his notorious insolvency might put at hazard the beneficial continuance of the property in him during his life. The questions about the admissibility of any other evidence of former or subsequent agreements and conversations, it is un- necessary to examine further than to say that those which pre- ceded the deed of William to David were rnerged in that convey- ance. And the subsequent agreements and conversations do not abridge the plaintiff's right; But we reject them. The purchas- 356 LAW OP HUSBAND AND WIPE. ers under Charles Stanwood are estopped to deny the seizin of David. Kimball v. Kimball, 2 Greenl., 226. Upon every view of which the case is legally susceptible, on the facts legally and properly proved, we are satisfied that David Stanwood had such seizin of the premises as would entitle the demandant to dower. The defendant must be defaulted. KING v. KING, 6i ALA. 479- (1878). Appeal from Mobile Chancery Court. Heard before Hon. H. Austill. The appellant, Susan W. King, filed this bill primarily to ob- tain dower in lands, which her husband once owned, and also to have his estate settled and distributed. Apellant's own children •and those of her husband by a former wife, are made defendants. The material allegations of the bill are substantially as fol- lows : John W. King and the appellant were married in Mobile, Alabama, on the first day of June, 1861, and they lived together as man and wife until his death, the 17th day of February, 1876. No administration has ever been had on his estate. Said King, before his second marriage, had accumulated property, but by reason of being surety on an official bond of one Chamberlain, as tax-collector of Mobile county for the year 1845, ^^^ of suits pending against him on said bond, he took title to the property acquired in the names of various persons ; sometimes in the name of his first wife, Mrs. Christine King, and sometimes in the names of one Hugh Monroe or William Brooks, as trustees for the use of his then living children. The bill describes each parcel of land purchased by King, makes the deeds to the exhibits, and alleges that immediately upon the purchase of each piece of property, John King took possession of the same as owner, making imprqve- ments and repairs thereon, with his own money, and receiving the income thereof, as his own ; that neither said Monroe or said Brooks ever had or held possession of said land, or in any man- ner exercised any acts of ownership over said property, either as trustees or otherwise ; that the said Monroe and Brooks received said deeds, made to them respectively, with full knowledge that John King bought and paid for said lands, with his own money, and that the titles were made to them to prevent the property being seized, or made liable for King's liability as surety on the official RIGHTS OF SURVIVING WIPE. 357 bond of Chamberlain on which he had been sued ; that said deeds were not made, or intended to be made, as an advancement to the beneficiaries named therein, to the exckision of King's after born children, or his widow, but that said conveyances were so made TO more securely protect and keep said property from being seized and subjected to the alleged liability on which he was sued, and for no other purpose. The prayer was, that the Chancery Court would take charge of and distribute the property to the parties entitled to it ; that the property, the titles to which were taken in the names of Monroe and Brooks, be decreed to the parts of the assets of said estate, and be distributed as such; that dower be assigned to complainant in said lands, and for general relief. The children of John King by his first wife demurred to the bill and assigned thirteen grounds of demurrer to the same, and among others ; i, "the bill shows that the purchase of said property by said King, in the name of and to the use of his wife and their living children was to prefer them to creditors, with fraudulent intent, and can not therefore, be impeached or set aside by said King, or any claiming under, by, or through him. 2. Because the complainant seeks to take advantage of John King's avowed wrong and turpitude, while showing her privity with, and claim under him." The chancellor sustained the demurrer and dismissed the bill, and his decree is now assigned as error. Brickei.i,, C. J. — Dower is defined by the statute as "an estate for the life of the widow, in a certain portion of the follow- ing real estate of her husband, to which she has not relinquished her right during the marriage: i. Of all dands of which the hus- band was seized in fee during the marriage; 2. Of all lands of which another was seized to his use ; 3. Of all lands to which at the time of his death, he had a perfect equity, having paid all the purchase-ftioney thereof." — Code of 1876, § 2232. Dower at com- mon law, existed only when the husband was seized of an estate of inheritance, and died in the life of the wife. Three things wer^ necessary to its consummation : marriage, seisin of the hus- band, and his death. The seisin must have been of a freehold in possession, and of an estate pf immediate inheritance in remainder or reversion. — 4 Kent. 34-39. The designation of dower at com- mon law is thus given by Mr. Bishop: "Dower is that freehold estate which is carved to the widow out of the real property where- of the husband was seized at any time during the coverture, of a 358 LAW OP HUSBAND AND WIPE. nature to be inherited by an issue, which she might have had, be- ing usually made to cover one-third of the same for her life, as her right in law growing out of the marriage, and his seisin and death." i Bish. Mar. Women, § 243. The right subsists in virtue of the estate of the husband, and is subject to any infirmity or inci- dent which the law attaches to that seisin, either at the time of the marriage, or at the time the husband becomes seized. The first subdivision of the statute refers to the estates of which the wife was dowable at common law — estates of which the husband had the actual beneficial legal seisin during the marriage. The second subdivision refers to estates of which he had not the legal seisin, but of which another was seized to his use — the technical seizure to use as known in English jurisprudence. — Harrison v. Boyd, 36 Ala. 203. The simplest form of which is, "where the legal estate of lands is in A., in trust, that B. shall take the profits, and that A. will make and execute estates according to the direc- _ tion of B." — 4 Kent. 316. The third subdivision refers to cases of purchase by the husband, fully completed at his death, by the pay- ment of the purchase-money, clothing him with an unconditional right to demand from the vendor a conveyance of the legal estate. — Lewis v. Moorman, 7 Port. 522; Crabb v. Pratt, 15 Ala. 483; Boyd V. Harrison, 36 Ala. 533. The use, or the equity of which a widow is dowable, is, as the legal estate of which she is dowable — a use, or equity, residing in the husband. The dower is carved from the use or equity, as it is carved from the legal estate, and with the remainder or reversion descending to the heirs, compre- hends the whole use or equity. If there is no legal estate, no use, or equity, residing in the husband — if before marriage, by any conveyance, the one or the other, is divested, and such conveyance is not intended as a fraud on the wife, — if its divestiture is by con- veyances intended to hinder, delay and defraud the creditors of the husband, the wife is not dowable. There is no estate — no use — no equity residing in the husband from which dower can be carved — no estate, use, or equity, which can descend to the issue of the marriage. — Whithed v. Mallory, 4 Cush. 138. Conveyances in fraud of creditors are not void — ^they are voidable only at the election of creditors, to the extent which is necessary to satisfy their demands, or if the fraud is actual, as to the subsequent pur- chasers. As to the debtor instrumental in their contrivance and execution, they are as operative, as if they were not infected bv fraud. He is estopped, as are his heirs, or those claiming merely in succession to him, from disputing their validity. RIGHTS OF SURVIVING WIFE. 359 The whole theory of the bill filed by the appellant, is, that the conveyances of the premises in which she claims dower, were fraudulent as to the creditors of her husband, and therefore void. They were voidable as to the creditors^ but not voidable as to the husband, nor as to strangers having no right or interest to be affected by them. At the instance of the husband, a court of equity could not enforce any trust or use for his benefit springing out of these conveyances. The maxim in pari delicto melior est conditio possidentis, applies in courts of equity, as well as in courts of law; and either court, leaves a debtor guilty of fraud on his creditors, to the consequences of that fraud. — Brantley v. JVest, 27 Ala. 542. As there can be no use or equity recognized in the husband in opposition to these conveyances — as such use could only be raised by permitting him to allege his own turpitude, there is no use or equity of which the appellant is dowable. The only question really presented is her right of dower, and that was prop- erly adjudged to be unfounded. Affirmed. GOODWIN v. GOODWIN, 33 CONN. 314. (1866). Amicable submission to the Superior Court upon the follow- ing agreed statement of facts. Horace Gioodwin of Hartford died, leaving a will executed in 1863, which was duly proved, and in which occurred the follow- ing provisions : "First. I give .and bequeath to my beloved wife, Phoebe C. Goodwin, all my household furniture, plate and jewelry, and all my personal property in my house. "Second. I give and bequeath to her the house and lot. No. 41 Pearl ?t. I hereby declare my purpose that the above bequest and devise to my wife shall not bar her claim of dower in my es- tate. " I furthermore direct that the house. No. 27 Market street, and the houses Nos. 30 and 32 Trumbull street, be sold, and the mortgage on house No. 41 Pearl street be paid. "I also direct all debts paid. All money ahd estate belonging to me at my decease, not disposed of in the foregoing will, I give and devise to my legal heirs, to be distrubted to them according to the laws relating to intestate estates." The property on Market street was conveyed or leased in 181 5 by the then owners, to one Eliakim Hitchcock, for the term 360 LAW OF HUSBAND AND WIFE. of nine hundred and ninety-nine years, at an annual rent of forty- six dollars, and said Hitchcock and his heirs and assigns to pay all the taxes and other legal charges upon it. By various inter- mediate conveyances, all made subject to an annual rent of forty- six dollars, and containing the usual covenants of warranty and seizin, and that the grantors were seized of the estate as a good indefeasible estate in fee-simple, the estate of Hitchcock in this property became vested in the testator. The latter during his life mortgaged the property to other parties by his warranty deed. All the real estate mentioned in the will was owned by the testator at the time of his decease. The case was submitted to the court by the widow, executor and heirs-at-law, to obtain a decision upon the following ques- tions : 1. Whether the widow is entitled to dower in the property on Market street. 2. "Whether she is entitled to dower in the property on Pearl street. 3. "Whether she is entitled to a share of the residue of the estate remaining after payment of all debts, legacies and other charges. The case was reserved for the advice of this court. Park, J. — Horace Goodwin, late of Hartford, deceased, after devising and bequeathing certain property to his wife, declared his purpose to be that the devise and bequest should not bar her right of dower in his estate. A part of the property that he died possessed of consisted of an estate for the term of nine hundred and ninety-nine years, with an annual rent of forty-six dollars ; and the first question submit- ted for our consideration is, whether the wife is entitled to dower in this part of his estate. If an estate for so long a term of years can be regarded as real estate, then dower should be allowed, otherwise not. Revision of 1866, p. 421. The general principle is, that an estate for years is less than a freehold, and is nothing more than a chattel real, and is classed as personal property, i Swift Dig., 87, 167. Does d long term of years stand upon dififerent ground in this respect from a short one ? Of course the value of the reversionary inter- est depends upon the length of time the estate for years is to con- tinue, and such value in the present case is exceedingly small,— too small for any substantial benefit ; but does the difference in the value of reversionary interests make any difference in principle ? RIGHTS OF SURVIVING WIFE. 361 If this estate had been created nine hundred and ninety years ago, it would be conceded that Horace Goodwin would have had only a chattel interest. If then at the commencement it is to be regarded as a fee simple, at what time will it change to a chattel real ? The claim of the plaintiff involves the necessity of fixing a time, and the absurdity of holding that immediately before the time shall arrive the estate will be a fee simple, and immediately after a chattel interest merely. We^re unable to discover any dif- ference in principle in this class of estates, whether they are to endure for a short or a long period of time, and we are satisfied that no distinction can be found in the common law. It is true that in the case of Brainard v. The Town of Colchester, 31 Conn., 407, Judge Button, in giving the opinion of the court, says in re- gard to an estate li^e the one under consideration, with the excep- tion that in that case a gross sum was paid as the consideration for the term: — "For all practical purposes it is a fee simple. The re- version becomes a mere imaginary estate." The learned judge used this language in reference to the extent of the estate, and the fact that it substantially contained all the property, which is obviously true. It is equally obvious that there is some value to the reversionary interest, for it will constantly increase, and at the end of the nine hundred and ninety-nine years will be equal in value to the entire property. The learned judge did not mean to declare that, in the administration of justice between party and party, the law regards such an estate as a fee simple, and that it should be treated as such, which is the question now before us. Judge Swift, in his Digest, Vol. i, page 87, says: "A lease for a thousand years is considered only as an estate for years, and the lessee has only a chattel interest, which by the common law goes into the hands of his executor or administrator at his decease." Washburn in his first volume on Real Property, page 153, says: — "If therefore the estate of the husband be a term of years, his wife cannot claim dower out of it at common law, no matter how long it is to continue, nor though it be renewable forever." The cases of Ware v. Washington, 6 Smedes & Marsh, 737, and Spangler v. Stanler, i Maryland Ch. Dec, 36, are to the same effect. See also 4 Kent Com., 35, 40, and Cruise's Digest, title Dower. We are referred to no case where the contrary doctrine has expressly been held, but a case in the second of Root's Reports, page 15, has been ' cited, where the levy of an execution upon an estate for the term of nine hundred and ninety-nine years as real estate, was held good. But this decision was made on the ground that the case came with- 362 LAW OF HUSBAND AND WIFE. in the spirit of the statute in regard to the levy of executions on real estate, and that without such construction the property would be exempt from execution. On the whole we are satisfied that the common law deprives the plaintiff of the right of dower in the Market street property, and so we advise the Superior Court. The next question is, whether in awarding dower to the plain- tiff under the provisions of tke will, the property devised to her shall be taken into consideration. This question depends upon the construction that is to be given to the will. The language is, "I hereby declare my purpose that the above bequest and devise to my wife shall not bar her claim of dower in my estate." The testator seems to have been laboring under the impression that the devise to his wife would deprive her of all dower in his estate un- less he declared his purpose to be otherwise. If he intended that she should have dower in his estate to the same extent to which she would have been entitled to it had he died intestate, it is rea- sonable to suppose that he would have so stated when his mind was upon the subject. The Pearl street property he devises to her. He knew it would be absolutely hers when the time should arrive for the assignment of dower. Could he have supposed the expression in his will was sufficient to make clear such intent and free the case of all ambiguity, when such intent rendered it neces- sary that the Pearl street property should contribute its share to the amount of dower, to be taken out of other property belonging to the testator, while it could in no event furnish itself any part of the actual dower? His silence upon the subject leads us to the con- clusion th^t he did not so intend. Again, where dower in one piece of property is assigned in another, there is a substitution of property, a quid pro quo, for the convenience of the parties, but the Pearl street property has noth- ing to give in exchange. It was all disposed of by the devise, and it seems absurd that dower should attach to property in which it can never be enjoyed. The testator could have devised other property to the plaintiff, equivalent to dower in the Pearl street property, if he had been so disposed ; but this has not been done, neither is there anything going to show any such intent. The testator declares that his wife shall not be barred of dower in his estate. Nothing was intended to be given by the declaration, and unless dower can attach to the Pearl street property no dower can be assigned in other property in consequence of it. RIGHTS OF SURVIVING WIFE. 363 We think therefore that in the assignment of dower under the will, the Pearl street property must be excluded from con- sideration, and so we advise the superior court. The third and last question is, whether the plaintiff is entitled to share in the residue of the estate after payment has been made of all the debts, legacies and charges upon the estate. The defendants have declinecr to discuss this question, on the ground that it is of no importance in the case, inasmuch as ail this class of property will be consumed in the payment of debts, legacies and expenses. The defendants must know in relation to it, for they are the parties interested in this class of property, and we therefore decline to answer the question. A question however has been made, growing out of this inquiry, that it may be important to decide, and that is, whether, if the plaintiff has an interest in the residue of the estate, such interest extends to the proceeds of the sale of the property on Trumbull street, which the testator directs in his will to be sold. That property the testator owned in fee simple, and unquestion- ably the plaintiff will be entitled to dower therein, and the ques- tion is, has she a right to share in the proceeds of the sale in another capacity? So far as we are able to discover any reason operating upon the mind of the testator in directing the sale of this property, it was to furnish the means for the payment of the mortgage on the property devised to the plaintiff. It would be a strange construction of the will to suppose that the testator in- tended that his wife should not only have dower in the property, but should likewise share in the proceeds of the sale, when the will is silent on the subject, and the only reason that can be given for such construction arises from the fact that the testator directs the property to be sold, and the mortgage to be paid on the prop- erty devised to his wife. We think she must be content with her dower in the property. 364 LAW OF HUSBAND AND ^IFE. SWAINE V. FERINE, 5 JOHNS. CHAN. 482. (1821). The plaintiff, Dorothy Swaine, on the first of October, 18 19, filed her bill, stating, that she is the widow of Simon Swaine, who died, seised and possessed of a dwelling house, farm, &c., on the 31st of March, 1816, intestate, leaving the defendant, Catherine Ferine, his only child and hfir at law. That being entitled, as. she was advised, to one-third part of the premises, of which her husband so died seised, situate in Southfield, in the county of Richmond, during her life, she, on the 13th of December, 1816, demanded of the defendant to assign to her, the plaintiff, her dower in the premises, which were particularly described in the bill. That the defendant, since the death of S. S., as his heir, has possessed herself of all the title deeds to his said property, and holds and occupies the premises, to the entire exclusion of the plaintiff, and refuses to assign to her her dower therein. The bill prayed that the defendant might be decreed to assign to the plaintiff, the one-third part of the premises, as for her dower, and for general relief. The defendant, in her answer, (filed December 23, 1819), admitted the marriage of the plaintiff, as stated, with S. S., and that he was in possession of the premises, but denied that she had any fitle deeds. That S. S. continued in possession of a part of the dwelling-house, until his death ; but that, as she is advised and believed, he was not, at the time of his marriage, nor at any time during the coverture, so seized as to entitle the plaintiff to dower. The defendant stated, that the plaintiff lived on the premises with S. S. at the time of his decease, and has ever since resided thereon ; but that a greater part of the premises were in the possession of the defendant's son, as her tenant, before, and at the time of the death of S. S., and which the defendant held in absolute right, by virtue of a conveyance to her by S. S., before his marriage with the plaintiff. That the plaintiff, at the time of her marriage with S. S., owned considerable real and personal property ; and before, and in contemplation of marriage, it was agreed between her and S. S. that she should enjoy her said estate during coverture, to her sole and separate use. That S. S. having so agreed with the plaintiff, by an instrument, executed the 12th of November, 1794, in consequence thereof, the defendant being his only child, in order to make provision for her, did,^on the 14th of November, 1794, execute a conveyance to her, her heirs and assigns, of the farm and premises, in which the plaintiff now demands dower,. RIGHTS OF SURVIVING WIFE. 365 with full covenants against incumbrances, &c., which deed was duly acknowledged and in full force, before the marriage of the plaintiff with S. S. ; and the defendant, by her son and tenant, was in the actual possession of the farm and premises (except a small part of the dwelling-house and a burial-place), before, and at the time of, the death of S. S. That S. S., in his lifetime, for the nominal consideration of 500 dollars, conveyed eleven acres of woodland to John Dunn, who executed a declaration in trust in favor of the plaintiff, and after the death of S. S., Dunn conveyed the eleven acres of land to the plaintiff, in execution of the trust. That S. S., and the plaintiff, his wife, executed a mortgage of the premises in which she now claims dower, to J. D., to secure the payment of 1,000 dollars, which mortgage was outstanding at the time of the death of S. S. That S. S., with the privity and con- sent of the plaintiff, on the 8th of August, 18 15, released the equity of redemption in the mortgaged premises to J. D., so that S. S. did not, in any manner, die seised of the premises. The defendant submitted, that if the plaintiff is entitled to dower, it can only be upon the payment of one-third of the principal, interest and costs ■due on the mortgage, which the defendant, by a decree of this court, on a bill filed by her and her son, was allowed to redeem. The defendant admitted, that she and her son were in possession of the premises, except part of the dwelling-house, occupied by the plaintiff; and she denied that she ever refused to assign dower to the plaintiff, who had never demanded an assignment of it. On the 4th of February, 1820, the defendant filed a cross bill for a discovery, and copies of the several deeds, and instruments in writing, alleged to be in the possession of the plaintiff. The plaintiff, in her answer to the cross bill, filed on the 20th of Octo- ber, 1820, denied that she had any real or personal estate, at the time of her marriage with the intestate, except as widow and ad- ministratrix of her first husband, Charles Garrison, being her dower in about twelve acres of land, and personal property, in her possession, as administratrix, specified in a schedule annexed to 1iie ante-nuptial agreement mentioned in the bill, copies of which were set forth. She alleged, that this agreement was not in lieu of dower, but merely as an inducement to the marriage. She admitted the deed from S. S. to the plaintiff, but alleged that it was kept secret until after the marriage; and, on a bill filed by the defendant and her son against Dunn, was decreed to be fraudu- lent. She admitted the conveyance of the eleven acres of land to Dunn, and the declaration of trust. She stated, that the con- 366 LAW OF HUSBAND AND WIFE. sideration, as respected Dunn, was nominal, but that the convey- ance was made to compensate her for advances made by her tO' S. S., during her coverture, which exceeded the sum of five hun- dred dollars, and that the eleven acres were not worth that sum. , She admitted that S. S. died in debt, that she administered on his. estate, and that the personal estate was not sufficient to pay his debts ; that the bond and mortgage given to D. was to raise money to defray the expenses of suits brought by the plaintiff and her husband, in his lifetime, and the mortgage is still outstanding. She admitted that S. S. executed a release of the equity of redemp- tion to D., in the execution of which she acquiesced, for the pur- pose of providing for the payment of debts ; but she alleged, that D. never, in fact, paid the consideration money, and that he after- wards delivered up the deed, as being of no effect. She admitted the payments, stated in the cross bill, on the mortgage, and prayed the benefit of the evidence taken in the suit, by the defendant P. and her son, against Dunn. She denied that the title deeds were in her possession, and any knowledge of them. John Dunn, who was examined as a witness, proved the de- mand of dower by the plaintiff, and the defendant's refusal. He stated, that the conveyance of the eleven acres to the plaintiff, was in consideration of advances made by her, from time to time, to S. S., out of the moneys belonging to her, as administratrix of C. G., her former husband; and that they were not the proper moneys of S. S. That the witness received the release of the equity of redemption from S. S., and it was a short time in his possession, when he put it into the hands of his attorney, in a suit against S. S., for the purpose of having it done away. That he never paid any consideration for the release, and never relied upon it as a valid instrument; but his attorney produced it to the defendant's solicitor, to induce him to agree to a settlement. His testimony was confirmed by that of his attorney. It was proved, that, after the death of S. S., Dunn proceeded to foreclose the mortgage. The Chancellor. This is a bill for dower; and the bill charges, that the defendant is the only child and heir at law of Simon Swaine, her late husband, and that she has possession of the title deeds, and refuses to assign her dower. The jurisdic- tion of the court is not questioned by the defendant ; and that juris- diction appears to be well established, in cases where no legal bar or impediment is raised to the title. The practice is to decree the dower to be set out by the master, as was done in the case of Good- enough V. Goodenough (Dickens, 795), or to grant a commission RIGHTS OF SURVIVING WIPE. 367 to assign dower, as was mentioned in Curtis v. Curtis, (2 Bro. 620). In the case last mentioned, the subject was very fully dis- cussed, and the cases touching the jurisdiction of the Court, re- viewed by the master of the rolls. He admitted, that the widow's remedy was, prima facie, at law, and the dower was a mere legal demand, but that, on the allegation of impediments thrown in the way of her proceeding at law, this Court can assume jurisdiction, and gave her relief for her dower. To say that the widow should have no damages when her dower was assigned to her in chancery, was a proposition not supported by Lord Coke, in Co. Litt. 33. a.; for he was there speaking of the writ de dote assignanda, and not of a decree of a Court of Equity. On that writ from chancery, there are no damages, because there is no deforcement of the widow. This Court has jurisdiction, and will relieve the widow as it relieves an infant. If she comes here for a discovery of the title 4eeds in the hands of the heir, she is to have her complete relief in this Court. If you deny her right to dower, the master of the rolls said, in the case cited, the question must be tried at law ; but when the fact is ascertained, she shall have her relief in equity. The course of the Court has been to assign her dower, and, uni- versally, to give her an account of the mesne profits, from the death of her husband. The same question of jurisdiction was examined, in Mundy V. Mundy (4 Bro. 295. 2 Vesey, jun. 122), and the authority and settled practice of the Court, and the utility and convenience of that practice, clearly asserted, and ably vindicated, by Lord Loughborough. That was the case of a bill for dower, and for an account of the mesne profits from the death of the husband. There was a demurrer put in, on the ground that the widow's rem- edy was at law. The chancellor asserted that a concurrent juris- diction, though there was no difficulty in the way at law, and that writs of dower had almost gone out of practice, for there was intricacy and difficulty, and no costs in the remedy by writ, at law. If the legal title to dower was controverted, it must be made oiit at law ; but where there was no dispute of that kind, there was no need of sending the party to law. , But the defendant has not interposed any demurrer in this case. She has submitted to this Court her objections to the right of the plaintiff, and they have been discussed by counsel, as prop- erly cognizable in this Court. I shall, therefore, proceed to the merits of the defence set up by the defendant, who is the heir at law. 368 LAW OF HUSBAND AND WIFE. The marriage, seisin, and death of the husband, are admitted ; but it is objected: 1. That there was an antenuptial agreement made, on the day of the marriage,. between the husband and wife, by which she was to enjoy exclusively, for her own benefit, some real and per- sonal estate. She says, that the real estate consisted only of her right of dower as the widow of a former husband, in twelve acres of land, and that the personal estate is about 950 dollars, which she held as administratrix of her former husband. There is nothing to gainsay her answer to the cross bill on this point ; and this agreement was not stated to be in lieu of dower in the lands of her second husband, S. Swaine ; and there is no color for the suggestion, that this agreement formed any impediment to her present claim. 2. The deed from Swaine to his daughter, the defendant, dated the 14th of November, 1794, and on the day of the marriage, is also set up to show that the husband was not seised of the prem- ises during the cov^ture. But by an order made during the progress of this cause, the testimony taken in the cause of Cath- erine and Simon Srvaine, jun. against John Dunn, in which the validity of that deed was put in issue, is admitted to be read in this cause ; and upon that testimony, it has been already decided {Ferine v. Dunn, 3 Johns. Ch. Rep. 508), that the deed was fraud- ulent and void, as against Dunn, a subsequent mortgagee. As it was fraudulent in fact, and kept concealed, and possession never went along with it, and as it was given without consideration, the deed is equally to be adjudged fraudulent as against the plaiiitiff. 3. The conveyance by the husband, during coverture, of eleven acres of woodland, to John Dunn, in trust for the plaintiff, and which trust was afterwards executed by Dunn, is also set up by the defendant, as an equitable bar to the plaintiff's right of dower. But it is sufficiently proved, that the deed to Dunn, in trust for the plaintiff', was given for advances made by her during ■coverture, to and for the use of her husband, and that those ad- vances were actually made by her out of moneys belonging to her, as administratrix of her first husband, to an extent much beyond the value of eleven acres. This objection to this claim is equally destitute of any foundation. The conveyance of the eleven acres, even if voluntary, would have been no bar of dower, for it was never intended to be made or accepted upon any such condition, but it appears to have been made upon a fair and valuable con- sideration. RIGHTS OF SURVIVING WIFE. 369 4. Another objection, which seemed to be much more rehed on, was the release by S. Swaine, the husband, of his equity of redemption in the premises to John Dunn, after having mortgaged the same to him for 1,000 dollars. But the answer to this objec- tion is, that the plaintiff was no party to that release, and her right of dower in the equity of redemption could not, therefore, be affected by it. In the next place, it may be observed, that the release itself was without consideration, and was never accepted by Dunn, though he had it, for a few weeks, in his possession. It was a voluntary act of Swaine, without any consultation or con- tract with Dunn; and the latter took it, not as an absolute and valid release, but rather as a trustee for Swaine, who was then languishing with disease. Dunn never acted under it, or treated it as a valid conveyance; but he proceeded, after the death of Swaine, to foreclose his mortgage under the power contained in it ; and in the bill filed by the defendant as heir, to redeem the mortgage, the release was not set up by Dunn, as a bar to the re- demption. The defendant was, by the decree of this Court in the cause already referred to, allowed to redeem, and she has actually redeemed, the land in which dower is now sought, from the incum- brance of that mortgage. In every view of the subject, this re- lease is no obstacle to the claim of dower. 5. The only part of the defense, that has solidity in it, is the claim by the defendant, upon the plaintiff, to contribute, propor- tionably, as dowress, to the redemption of the mortgage; and it appears to me that her pretension here is well founded. ,The plaintiff was a party to the mortgage to Dunn, and her claim to dower was only in the equity of redemption, or the inter- est which her husband had remaining in the land, after satisfaction of the mortgage. Her right of dower was subject to the mort- gage ; and if the heir has been obliged to redeem the land, by pay- ing that mortgage, to which the plaintiff was a party, she ought, in justice and equity, to contribute her ratable prbportion of the moneys paid towards redeeming the mortgage. The redemption was for her benefit, so far as respected her dower. To allow her the dower in the land without contribution, would be to give her the same right that she would have been entitled to if there had been no mortgage, or if she had not duly joined in it. It would be to give her. dower in the whole absolute interest and estate in the land, when she was entitled to dower only in a part of that interest and estate. In Palmer v. Danby (Prec. in Ch. 137), the lord keeper allowed a dowress to redeem a mortgage on land, which had 370 LAW OF HUSBAND AND WIFE. descended to an infant, subject to encumbrances, by paying her proportion of the mortgage money, and to hold over for the rest. By this case, I understand her proportion of the debt was to be borne by her dower interest, and that she was to hold the land in the character of an assignee of the mortgage, until she was reim- bursed as to the residue of the mortgage debt. In Banks v. Sutton (2 P. Wm. 700), Sir Joseph Jekyll gave to the widow her dower, in the equity of redemption, of a mort- gage in fee ; and though the case has since been overruled, in re- spect to her title in such a case, yet, if she be entitled, the terms of the decree were, no doubt, just, and ought to be regarded as authority. In that case, the master of the rolls decreed to her the arrears of her dower from the death of her husband ; and she was to allow, or keep down, the one-third of the interest of the mort- gage money, unsatisfied at that time. The bill in that case was, to redeem the mortgage, given by the person from whom her hus- band derived title ; and in her bill, she offered to pay, or keep down, the one third of the interest of the mortgage money, remaining unsatisfied. This case refers to the death of the husband, as the time from which the amount, to which the widow is to contribute, is to be deduced ; and, as far as the husband had reduced the mortgage debt in his lifetime, that was doubtless so far a redemption for the benefit of the wife, as well as himself. She is only to contribute, to relieve the land of the incumbrance, to the extent in which it existed when the husband died. I shall, therefore, decree, that the plaintiff is entitled to her dower in the ninety acres, and to an account of the mesne profits, from the death of the husband. The husband, in this case, is to be considered as having died seised of the equity of redemption, or of the real estate, subject to the mortgage ; and in such cases, it appears, by the cases already cited, and by that of Oliver v. Richardson (9 Vesey, 222), to be the settled course, to .compute the rents and profits from the husband's death. But as the plain- tiff has been, and still is, in possession of a proportionate part of the dwelling-house on the premises, the account of the mesne profits ought to be confined to the farm, exclusive of the dwelling- house, and which ought not to enter into the computation. She will be entitled to one-third part of these mesne profits, when ascer- tained, and to one-third part of the dwelling-house and land, after deducting her ratable contribution towards the redemption of the mortgage. BIGHTS OP SURVIVING WIFE. 371 The next question is, How is the plaintiff to contribute ratably to discharge the mortgage debt? If she was to pay one-third of the debt and interest (exclusively of costs) paid by the defendant, together with intei.-st on that one-third, from the time the defend- ant paid it, there could be no doubt that this would be to the de- fendant a satisfactory contribution. But the plaintiff has only a life interest in the dower, and payment of the entire one-third of that debt would be unjust. It would be making her pay for a life estate, equally as if it was an estate in fee. The more accurate rule would appear to be, that she should "keep down" one-third of the interest of the mortgage debt, by paying, during her life, to the defendant, the interest of one-third part of the aggregate amount of the principal and interest of the mortgage debt, paid by the defendant, to be computed from the date of such payment. But as it would be inconvenient and embarrassing to charge her with such an annuity, then let the value of such annuity from the plaintiff (her age and health considered), be ascertained by one of the masters of this Court, and be deducted from the amount of the rents and profits so coming to her ; and if that value should exceed the amount of the rents and profits so coming to her, that then, the residue of such value be deducted from the dower to be assigned to her, out of the house and land mentioned in the bill. The question is. If an estate in fee, in one equal third part of the premises, ought to pay the one equal third part of the mortgage debt and interest, paid by the defendant, then what proportion ought the plaintiff's life estate, in that one-third part, to pay? I apprehend the value of such an annuity would be that result. I shall not charge the defendant with costs in this suit. The plaintiff claimed her dower, without offering or consenting to con- tribute to the discharge of the mortgage. Both parties have set up pretensions that were not well founded, and it would be just, that each party should pay her own costs. At law, on a writ of right of dower, or an assignment of dower, no costs are given, unless there be a deforcement, when the statute, of Gloucester (which we have re-enacted) gave damages. But Lord Thurlow said, in Lucas v. Calcroft (i Bro. 134), that in cases where there was an apportionment of dower by commissioners, and not by writ, costs were not given, unless the party was vexatious. And in Curtis v. Curtis {uhi supra), the master of the rolls held, that the widow had no costs where the heir threw no difificulties in the way. The right to costs must rest here, as in almost all other cases in this Court, on sound discretion. 372 LAW OF HUSBAND AND WIPE. The following decree was entered: "It is declared, that the plaintifif is entitled to her dower in the messuage, dwelling-house and land, in the bill mentioned, being ninety and an half acres; and she is entitled, also, to one-third part of the mesne profits of the premises, accrued since the death of her husband ; and that her right is subject to ^ just and ratable contribution towards pay- ment of the mortgage debt, in the pleadings mentioned. It is thereupon ordered, &c., that it be referred to one of the masters of this Court, to take an account of the rents and profits (exclusive of the dwelling-house, of which a proportionate part has been occupied by the plaintiff) , accrued since the husband's death, down to the date of the report, and which have been received by the defendant, or by any other person by her order, or for her use, or which might have been received with ordinary care and dili- gence ; and one-third part of what shall be coming on said account of rents and profits, is to be paid by the defendant to the plaintiff, under the proviso and subject to the deduction of the value of the annuity hereinafter mentioned. That, for the better taking the said account, the defendant is to produce before the master, upon oath, all deeds, writings, papers and books of account in her cus- tody, or power, relating to the matters in question, and both parties are to be examined, as the master may direct ; and the master is to make to both parties all just allowances. And it is further ordered, &c., that the master ascertain the amount of principal and interest (exclusive of costs), due upon the mortgage, in the plead- ings mentioned, and paid by the defendant, upon the redemption thereof, and the time when paid, and the amount of a year's inter- est on the aggregate sum of one-third part of such principal and interest so paid by the defendant; and what would be the value, in a gross sum, upon the calculation of life annuities, and duly con- sidering the age and health of the plaintiff, of such yearly interest, payable yearly, from the time of such payment, during the life of the plaintiff; and that the amount of such value, in a gross sum, be deducted from the amount of the one-third part of the rents and profits to be ascertained, as belonging to the plaintiff as afore- said ; and if such value should equal the amount of the one-third part of said rents and profits, that in such case the one be set off against the other ; but if such value should exceed the one-third part of the rents and profits, then the excess be by the master deducted from the amount or value of the dower to be assigned; and that so much of the premises as such excess shall, in the judg- ment of the master, amount to (the land to be estimated accord- RIGHTS OF SURVIVING WIFE. 373 ing to its worth to the plaintiff, having a life estate therein), be deducted from the one-third part of the premises to be assigned to the plaintiff. And it is further ordered, that the master assign to the plaintiff, by metes and bounds, her dower in the messuage or dwelling-house, and ninety and one-half acres of land aforesaid, after having deducted as aforesaid, from the quantity of land so to be assigned, as much as shall, in his judgment, be sufficient to satisfy the defendant what may remain due to her upon the value of the said annuity, after the one-third of the rents and profits shall have been deducted as aforesaid. And it is further ordered, that no costs be recovered by either party, as against the other, and that the master be at liberty to apply for further directions, if necessary, upon the foot of this decree. And it is further ordered, that the defendant deliver possession to the plaintiff, of the lands and tenements, and of the part of the dwelling-house, and messuage, with its appurtenances, which shall be so, set out and assigned to the plaintiff for her dower ; and that the tenants, if any, on the premises so to be assigned, attorn to and .pay their rents to the plaintiff." f. Remainder and Reversion. DUNHAM V. OSBORN, i PAIGE'S CHAN. 634. (1829). A bill for partition was filed in this cause, and the only ques- tion between the parties was as to the extent of the dower right of the widow of D. Dunham in the premises. J. H. Maxwell was the former owner of the premises, and his right thereto was sold upon execution in his life time, and two-thirds thereof became vested in D. Dunham and the other third in Osborn. D. Dun- ham died in the lifetime of Maxwell. Upon Maxwell's death, his widow became entitled to dower in the premises ; but it was insisted that the widow of Dunham was not entitled to dower therein, as there could not be two rights of dower in the same premises by the seisin of two successive owners. The Chancellor. Maxwell having been the sole owner during coverture, there can be no doubt of the right of his widow to dower in the whole premises, in value as they were at the time of the sale on the execution against her husband. {Hale v. James, 6 John. Ch. Rep. 258.) But it is insisted there cannot be two rights of dower in the same premises, and that the widow of D. Dunham must be wholly excluded. Two widows cknnot be en- 374 LAW OF HUSBAND AND WIFE. dowed of the whole estate at the same time ; and if the widow of the person last seised is endowed, it must be of the remainder of the estate only, subject to the dower of the widow of the person first seised. To entitle the wife to dower, the husband must be seised either in fact or in law of a present freehold in the premises as well as of an estate of inheritance. His seisin of a vested re- mainder is not sufficient, if he dies or aliens his interest in the premises during the continuance of the particular estate. {Eld- ridge V. Forrestal & Wife, 7 Mass. R. 253. Shoemaker v. Walker, 2 Serg. & Rawl, 554.) Hence if the father die, and the land descends to his son and heir, subject to the dower of the mother, and dower is assigned to her in the premises, and the son dies during the continuance of hef estate, the widow of the son will be entitled to dower in the remaining two-thirds ; but will not be entitled to dower in the reversion of that part which was assigned to the mother as tenant in dower. As to that part, the moment the mother is endowed, her seisin relates back to the death of the husband, and is considered a continuance of his seisin, so that there never was any seisin in the son. But the case is different where the father conveys to his son. By the conveyance, the son becomes seised of the whole premises, subject to the dower right of his mother if she survives the grantor; and the wife of the grantee is entitled to dower in the whole, subject to the same right. The maxim dos de dote peti nan debet does not apply to such a case. (Perk. sec. 315. Coke's Litt. 31, a. b. Pari's case, 4 Coke's Rep. 122. Watkins, ch. i, sect. 3, p. 74.) In this case, the sale of Maxwell's estate, under the judgment and execution against him, gave a present seisin of an estate of inheritance to the purchasers, subject to the life estate of Mrs. Maxwell if she sur- vived her husband; and the widow of D. Dunham is entitled to dower in his share of the premises. The widow of Maxwell is entitled to have assigned for her dower one-third of the premises, and Mrs. Dunham will be entitled to dower in two-thirds of the reversion of that third if she survives Mrs. Maxwell. She is also entitled to dower in two-thirds of the other two-thirds of the prem- ises from the present time. If the property is sold under the decree in this cause, the interest of each in the purchase money must be estimated upon the same principles ; and if the value of Mrs. Dunham's life is worth the same, or less than that of Mrs. Maxwell, the dower right of Mrs. Dunham in the first third is worth nothing. RIGHTS OF SURVIVING WIFK. 375 g. Joint Tenancy. BABBITT V. DAY, 41 N. J. EQ. 392. (1886). The Chancellor. This is a suit for specific performance of a contract for sale of real estate by the complainants to the defend- ant. The objection made to the title is that the wives of the com- plainants' grantors, who held the title as joint tenants in fee, did not join in the conveyance to the complainants, and it is urged that the wives, who are living, may have a right of dower in the property. By the common law, no title of dower attaches where the husband is seized of the land jointly with another or others. This is owing to the nature of the estate of joint tenants. The possibility, so long as the joint ownership subsists, that the estate of each tenant may be wholly defeated by his dying in the lifetime of the other or others, prevents the attaching of the right of dower in the wives of any of the tenants, except the survivor. The estate which the husband must have to entitle his wife to dower is one in severalty or in common. The unity of interest in joint tenancies (each tenant is seized per my et per tout) prevents the admission of a right of dower or curtesy, except as to the estate of the sur- vivor. On the decease of one joint tenant the survivor holds the whole property under and by virtue of the original grant, and holds no part of it in anywise under the decedent. 2 Cruise's Dig. 444. We have not, in this state, changed the law in respect to dower in such estates either by statute or legal adjudication. The stat- ute, it is true, provides that the wife shall have dower in all the real estate of which her husband or any other to his use, was seized of an estate of inheritance at any time during the coverture, to which she shall not have relinquished her right of dower by deed duly executed and acknowledged (Rev. p. 320), and an estate in joint tenancy is, in terms, an estate of inheritance, but the right of survivorship in such estates has not been abolished. Such estates are recognized by statute (Rev. p. 167, § 78), and they retain their common law characteristics. By the term "estate of inheritance" in the statute is meant an estate of inheritance in severalty or in common. Estates in joint tenancy are not included. The demurrer will be overruled. 376 LAW OF HUSBAND AND WIFE. h. Estates in Common, HOLLEY V. GLOVER, 36 S. C. 404. (1891)- These were sixteen separate actions brought by the plaintiff, Elizabeth Holley, against Stella A. Glover, and separately against fifteen other defendants. The sixteen cases were all heard to- gether on the following agreed statement : It is agreed by counsel representing the parties in the sixteen actions above stated, that said actions be tried by the court in place of a jury upon the following statement of facts and the pleadings : 1. That previous to the year 1839, William H. Carey and Alfred Holley (who was the husband of the demandant in said actions) were the owners as tenants in common of all that tract of land now situate in the County of Aiken, but then in the Districts of Edgefield and Barnwell, containing five thousand acres, more or less, known as the Hollow Creek tract, and including the various tracts described in the respective complaints in the foregoing actions. 2. That said Wm. H. Carey having died, his son, John L. Carey, by his next friend, D. J. Walker, instituted a suit in the Court of Equity for the District of Edgefield against the other heirs at law of said Wm. H. Carey, deceased, and Alfred Holley and Wise Holley for the partition of the said Hollow Creek land. That in said suit a writ in partition was duly issued to commis- sioners pursuant to an order of the court and the statute in such case made and provided, who returned that it was best for the in- terest of all parties concerned that the land should be sold and the proceeds divided as justice could not be done by a division in kind. That upon said return one of the chancellors of the court, in term time, by regular decree in said action for partition, or- dered and directed that said tract of land should be sold by the commissioner of the court and the proceeds divided between the parties according to their respective rights, which was stated in said decree; that pursuant to said decree, the commissioner of the court, S. S. Tompkins, Esq., after due advertisement, at pub- lic outcry on salesday in January, 1849, sold said tract of land to John Holley for $4,175, and executed a deed of conveyance to him for the same ; that said commissioner, after receiving said purchase money, divided and paid out the same among the parties to said suit, pursuant to the provisions of said decree, and that said sale to said John Holley was duly confirmed by the court. \ RIGHTS OF SURVIVING WIPE. 377 3. That the defendants in the aforesaid actions for dower now hold the various tracts of land described in the complaints in said actions from parties who trace their titles back to John Holley, yho purchased from the commissioner as aforesaid. 4. That on the 5th day of March, 1841, Alfred Holley, by his deed of conveyance, conveyed to Wise Holley his undivided one-half interest in the Hollow Creek tract of land aforesaid, which said deed was duly executed and recorded at Barnwell Court House. 5. That on the 6th of March, 1842, the sheriff of Barnwell District, in the case of Elisha Carson against Alfred Holley, sold the said Hollow Creek tract of land under judgments obtained prior to 5th day of March, 1841, and the same was bid off bj Wise Holley for $30, but no deed to the same from the sheriff appears on the record. 6. That the demandant, Elizabeth Holley, was not a party to the proceedings in the partition heretofore mentioned, and re- ceived no portion or share of the proceeds of sale of said premises, noi was any provision whatever made by the court in said pro- ceedings for the assessment of the value or protection of the. in- choate right of dower of said Elizabeth Holley. 7. That said proceedings in partition mentioned in paia- graph two (2) hereof were instituted subsequently to the execn- iion of the conveyance from Alfred Holley to Wise Holley, hen-,- tofore mentioned, and subsequently to the sale of said Hc'low Creek tract of land by the sheriff of Barnwell District under the execution aforesaid in favor of Elisha Carson against Alfred Holley. 8. It is further agreed and admitted that Alfred Holley, the husband of the demandant herein, died on the fourteenth (14th) day of February, A. D. (1881) eighteen hundred and eighty-one. Note. — Carey and Holley became tenants in common, pur- chased jointly and by deed to them as tenants in common. The Circuit decree, omitting its repetition of the statement was as follows : Mr. Scribner, in his work on Dower, vol. i, page 328, savs The Statutes of most, if not all, the States provide for the sale of lands held in common, where, upon proceedings for partition, i* is ascertained that a division cannot be made without serious detri- ment to the estate. In such cases the money arising from the sale is brought into court and distributed to the several tenants in common in proportion to their respective interest in the com- 378 LAW OF HUSBAND AND WIFE. mon property. From these statute regulations has sprung a ques- tion of great interest and importance, namely, whether a sale made in conformity thereto operates to divest the contingent right of dower of the wife of a co-tenant, and to pass the entire estate absolutely to the purchaser, and if so, whether, for that reason, it is proper that the court, under whose direction the sale is made,, should require a portion of the husband's share of the proceeds of the sale to' be invested for her benefit in case she should survive him, and her right thus becomes absolute. This question of "great interest and importance" is the one presented in these cases and upon which we are now required to pass. It is contended that there was no statute authorizing the sale of lands, under the circumstances of this case, for partition; that the act of 1791 is only applicable to the settlement of intestate estates, and that the long established practice of the Court of Equity, derived from an assured jurisdiction in such cases, should not be allowed to override and defeat the rights of the parties. Pell V. Ball, I Rich. Eq., 387, is authority for the doctrine that the^jurisdiction of the Court of Equity to sell lands for the pur- pose of partition against the consent of a party is not confined to the case of intestate estates. The reason given by Chancellor Harper, in support of this doctrine, seems to us sufficient to sus- tain the conclusion reached. It does not seem to us to be an un- warranted extension of the provisions of the act of 1791, so as to- include other than intestates' estates held in common. At any rate, we consider the question settled. Again, it is contended that even if the Court of Equity has power to direct a sale for the purpose of partition, that only those persons who are parties to the proceedings are bound thereby. To support this proposition, section 2, of the act of 32 H. VIII., ch. 32, is relied on by the plaintiff herein. It is argued that the Court of Equity, in the exercise of its jurisdiction in directing sales of real estate for the purpose of partition among joint ten- ants and tenants in common, cannot prejudice the rights of those not parties to the proceedings. That it derives its authority to make compulsory partition alone from the statutes of 31 H. VIII., ch. I, and 32 H. VIIL, ch. 32, and that section 2 of the act of 32 H. VIIL, ch. 32 is applicable to all cases of partition among • joint tenants and tenants in common, whether made in kind or by sale under the extended jurisdiction of the Court of Equity by reason of the act of 1791. This section reads: "Provided, ahvays, That no partition or severance hereinafter to be made by- RIGHTS OF SURVIVING WIPE. 379 force of this act be prejudicial or hurtful to any person or persons, their heirs or successors, other than such which be parties unto said partition, their executors or assigns." Admitting the view contended for to be correct, we do not think this proviso applicable to the present case. The statute of 31 H. VIII., ch. I, relates to joint tenancies and tenants in com- mon (2 St., 471). This statute was extended by 32 H. VIII., ch. 32, to joint tenants for term of Ufe or years (2 St., 474). By reference to these statutes, it will be seen that the statute of 31 H. VIII., ch. I, did not contain the above proviso. It is annexed only to the other act. Let us notice the language of this proviso. It is "that no partition or severance hereinafter to be made by force of this act." What act? Certainly the act of 32 H. VIII., ch. 32, which, as we have seen, applies only to "joint tenants for terms of life or years." It will hardly be questioned that this is a wise provision in regard to tenancies of this nature. This brings us to the main question in the case. In the outset it is necessary to ascertain, if we can, what is the nature and quality of this right denominated the wife's inchoate right of dower. "It is difficult," says Mr. Scribner (2 Scrib. Dow., 5), "to state with precision the nature and quality of inchoate dower interest when considered as a right of property." It is "a right attaching by implication of law, which although it may possibly never be called into effect (as when the wife dies in the lifetime of the husband), yet from the moment that the fact of marriage and of seizin have occurred is so fixed on the land as to become a title paramount to that of any other person claiming under the husband by a subsequent act." Parke Dow., 237; Cunningham V. Shannon, 4 Rich. Eq., 140. It is a substantial right possessing in contemplation of law attributes of property, and to be esti- mated and valued as such." (2 Scrib. Dower, 5.) It is not a lien. Shell v. Duncan, 31 S. C, 565. "After this right has once attached, it is held by the wife entirely independent of the husband, and it cannot be affected by any act or omission on his part." Shell v. Duncan, supra, 566, and cases cited. Now, while Carey and Alfred Holley held these lands as ten- ants in common, what was the situation of the parties? Mrs. Alfred Holley had a contingent right of dower in the one undi- vided moiety thereof, subject to the paramount right of Carey to compel partition between her husband and himself. Had a vol- Wtary or involuntary partition of said lands in kind been made, then it is clear that the inchoate right of dower of Mrs. Alfred 380 LAW OF HUSBAND AND WIFE. Holley would have been transferred immediately to the portion allotted to her husband; and had he conveyed after partition his share to another, without the renunciation by his wife of her dower, according to the statute, his grantee would have taken the land subject to, and burdened with, the contingent right of dower of Mrs. Holley; and when this right became consummate by the death of her husband, she could have recovered her dower inter- est therein. So when Alfred Holley conveyed his undivided interest there- in to Wise Holley, he took it subject to and encumbered with the WW inchoate right of dower of Mrs. Alfred Holley, she not having renouncd this right according- to the statutory mode provided. The seizin of Alfred Holley in these lands was broken, and ceased when he conveyed his undivided interest therein to Wise Holley. This transfer created no priority of estate between Wise Holley and Elizabeth Holley, the wife of his grantor, respecting her right of dower in the lands conveyed. For, as we understand the rule, the wife is in privy of estate with her husband only until the right of dower attaches; her interest is not only independent of him, but against him. In all transactions subsequent to the occur- rence of marriage and seizin, there is no privity of the wife with her husband respecting her dower. If this be so, how can it be said that there is privity respecting her dower between the wife and the husband's grantee — a mere stranger? Wise Holley's seizin, however, while burdened with the con- tingent right of dower of Mrs. Elizabeth Holley, was also burdened with Carey's paramount right of compulsory partition. The ques- tion is, therefore, presented, was the inchoate right of dower of Elizabeth Holley in these lands divested and defeated by the com- pulsory sale for partition and division ordered by the Court of Equity in an action to which she was not a party, but in all other respects regular? This question has never been directly decided in this State, so far as we are informed or advised. Now, what is the nature and force of this paramount right to compel parti- tion? Does it involve anything more than that this right shall not be abridged or taken away by the contingent right of dower in the wife of a tenant in common? Or is it so potent as to de- stroy altogether the wife's contingent right of dower in case of its exercise ? There is no doubt that if actual partition is made, the wife's right of dower will attach to the share allotted in severalty to her husband. This result follows as a matter of course, without any RIGHTS OP SURVIVING WIPE. 381 decree or order of the court, and without the wife being a party to the proceeding in partition. Hence, when actual partition is made, the paramount right to compel it does not defeat the sub- ordinate right of dower, and the paramount right in such case, it would seem, involves nothing more than that its exercise should not be abridged or taken away by the subordinate right. Is the result different when the property is sold by order of the Court of Equity for partition and division of the proceeds? Here we en- ter upon debatable ground. It, therefore, becomes necessary to review at some length the cases bearing upon this difficult and important question, and to deduce therefrom a conclusion in con- sonance with the principles of law applicable to this highly favored right. [Here the learned judge cited, quoted at length, and reviewed the following authorities: Jackson v. Edwards, 7 Paige, 386; Mathews v. Mathews, i Edw. Ch. 565 ; Lee v. Lindell, 22 Mo., 202; s. c. 64 Am. Dec, 262; Weaver v. Gregg, 6 Ohio St., 547; s. c. 67 Am. Dec, 355; Freem. Cot. & Part, § 474; i Scrib. Dow., 328-341 ; Keckeley v. Moore, 2 Strob. Eq., 21 ; Polk V. Sumter, 2 Strob., 81 ; Jeter v. Glenn, 9 Rich., 380; Com- missioner V. Smith, Jbid., 515; Bolivar v. Zeigler, 9 S. C, 287; Rorer Jud. Sales, § 150.] It, therefore, seems to us that not only reason and public pol- icy, but the clear weight of authority, is on the side and in favor of the rule, that where lands are sold under a decree of the Court of Equity for partition, the realty is converted into personalty, and thereby the dower interests of the wives of the co-tenants are ex- tinguished and destroyed, and the purchaser at such sale takes a title free from any defect or encumbrance as to such dower rights. But in the present case it appears that Alfred HoUey conveyed his undivided interest in said premises to Wise Holley befor^ the sale for partition of said land was made, and that his wife, Eliza- beth, the present plaintiff, did not then, nor did she during the lifetime of her husband, renounce her right of dower in the prem- ises so sold to Wise Holley, as required by the statute in such case provided. This state of facts presents another question of equal importance and difficulty. The authorities above referred to arise out of cases in which the husband was still a co-tenant when the sale for partition was ordered. In these cases the hus- band, it may be claimed, represented his wife's inchoate right of dower;, for in such cases the practice has always been in the dis- tributing the proceeds of sale to pay to the husband, he being the 882 LAW OF HUSBAND AND WIFE. sole representative of the estate. But, in the present case, although Alfred Holley was a party, he did not represent the es- tate; he had no share in the proceeds of sale. When the pro- ceedings for partition were instituted, he was not the owner in fee of one undivided moiety of these lands, with a wife having a contingent right of dower, for he had voluntarily parted with his interest to another prior to such proceeding. In the cases above discussed, the seizin of the husband had been divested by the act of the law ; in the present case the husband's seizin had been di- vested solely by his own act. Mr. Freeman, in his work on Co-Tenancy and Partition, § 475, in discussing this question, says : "As it was clear that the act of the husband could not defeat the wife's right of dower, it was thought that the subsequent partition, to which she was not a party, and in which her estate had no representative, must be equally powerless to prejudice her interests." In support of the text, Mr. Freeman cites the case of Verry v. Robinson, 25 Ind., 19 ; s. c. 87 Am. Dec, 346. By the sale of Alfred to Wise, the title of Alfred, which, to use the language of Mr. Justice Elliott in Verry v. Robinson, supra, "was directly united with the con- tingent right of the wife growing out of the marriage relations under the law, became severed from it. The title was no longer a unit. The estate of the husband, out of which sprung the claim of the wife, became divested and passed into the hands of a stran- ger, not an absolute and unencumbered fee, but subject to the contingent claim of the wife, depending, however, upon the then uncertain contingency that she should survive her husband." Alfred was seized of an unconditional and unencumbered fee in one undivided moiety of the Hollow Creek tract of land. The contingent right of his wife was a mere incident under the law of that seizin, and though the entire fee was in the husband, he could not sell the interest of the wife unless she voluntarily joined in the conveyance. The wife of Alfred did not join in the convey- ance of Alfred to Wise, therefore Wise's purchase was subject to the contingent right of Mrs. Elizabeth Holley, the wife of Alfred. By this purchase Wise did not acquire a title to that right. Al- fred did not own it, consequently could not sell and convey it; therefore Wise's title was subject to it. As was said by Mr. Jus- tice Mclver in Shell v. Duncan, supra, in answering the question, what is the right, tile, and interest which a married man has in land of which he is seized during coverture? "It certainly is not such an absolute, unqualified interest as woulc^ enable him to alien- ate it, free from the claim of dower, either by deed or devise, but BIGHTS OP SURVIVING WIFE. 383 his alienation is always subject to the wife's right of dower, which can only be released or extinguished by her own act. Nothing that the husband may do can in any way affect it. From this it follows that when the right, title, and interest of the husband is sold, either directly by himself or through the medium of an offi- cer of the law, the purchaser takes no more than what was sold — the right, title, and interest of the husband, which does not include the dower interest, and hence the purchaser must take his title subject to the wife's right of dower." In the suit for partition instituted by John L. Carey, Wise Holley only represented the interest purchased by him, and no more, and no other, and the sale of the premises, so far as his interest was concerned, could not invest John Holley, the pur- chaser at said sale, with any better title or greater interest than was held by Wise, and which he represented in that suit. And, as we have already seen, Alfred, although a party, had no inter- est in the premises, and could not, under the circumstances, repre- sent his wife in said suit. It is apparent that there is a very material difference between the case at bar and the cases of Weaver v. Gregg and Lee v. Lindell. In the cases of Weaver v. Gregg and Lee v. Lindell, the seizin of the husband was divested by the act of the law at the time of the sale under the decree for partition, and the hus- band was a party to the proceeding and represented his own title, which was then directly united with the contingent right of the wife. In the present case the seizin of the husband was divested by his own voluntary act at a period long before the suit for par- tition was instituted, and the husband, although a party to the proceeding, had no title then directly united with the contingent right of the wife — the title and the contingent right having been previously severed by the voluntary sale of the husband. ■ We therefore conclude that Wise Holley's purchase of said premises was subject to the inchoate right of dower of Elizabeth Holley, which was not extinguished or destroyed by the sale for partition made under the decree of the Court of Equity in the suit instituted therein by John L. Carey, she not being a party to said proceedings ; that John Holley, the purchaser at said sale, also took his title to said premises subject to the inchoate right of dower of Elizabeth Holley; and that said inchoate right having' become consummate by the death of her husband, Alfred Holley, she is entitled to her dower in said premises. It is therefore ordered and adjudged, that Elizabeth Holley, 384 LAW OF HUSBAND AND WIFE. plaintiff, recover against the several defendants, in each of the above entitled actions, her dower in the several tracts or parcels of land mentioned and described in the respective complaints, and that a writ in dower in each of the said actions do issue out of and under the seal of this court in the usual form of words, and according to the rules and practice of this court, directed to fit and proper persons as commissioners, commanding them, or a majority of them, to admeasure and mete out to the plaintiff her dower in the lands described in the several and respective complaints, and that the costs of said actions and expenses of said admeasurement be paid by the defendants respectively. Defendants appealed. July 14, 1892. The opinion of the Court was delivered by Mr. Chief Justtce McIver. All the cases named in the title were actions for dower, and as they all grew out of the same state of facts, and rest upon the same principles of law, they were heard together both on the Circuit and in this court, and will therefore be considered together. By agreement the cases were heard upon the pleadings and an agreed statement of facts, set out in the "Case," by the court without a jury. The plaintiff, as the widow of Alfred Holley, claims dower out of the several parcels of land in the possession of the several defendants in the above stated cases, which several parcels originally constituted a single tract of land known as the Hollow Creek land. From the "agreed statement of facts," which should be incorporated in the report of this case, it appears that some time prior to the year 1839, the said Alfred Holley and one William H. Carey pur- chased jointly the Hollow Creek land, and the same was con- veyed to them as tenants in common, and on the 5th of March, 1841, Alfred Holley conveyed his undivided one-half interest to Wise Holley. Subsequently, W. H. Carey having died, his son, John L. Carey, instituted proceedings in the Court of Equity against the other heirs at law of W. H. Carey, together with Alfred Holley and Wise Holley, for the partition of said land, which resulted in a sale of said land under the orders of said court. At such sale one John Holley became the purchaser, and having paid the purchase money, received titles from the com- missioner in equity, and the defendants in the several cases above stated claim under the said John Holley. The purchase money was divided amongst the several parties to the proceedings in pursuance of the provisions of the decree of the court under which the sale was made, but the plaintiff herein was not a party RIGHTS OP SURVIVING WIFE. 385 t r. Dower Barred. ROBIE v. FLANDERS, 33 N. H. 524. (1856). Writ of Dower, dated March 31, 1854. The defendant was summoned to answer to Henry Robie and Sallie Robie his wife, who was the wife of Benjamin Baker, deceased, in a plea of dower, wherein they demand the third part of a messuage in Manchester, as the dower of Sally Robie of the endowment of the said Baker. The writ sets out the seizin of Baker during the coverture, the death of Baker, and demand, after his death, on the defendant, and more than one month before the date of the writ. The defendant moved the court of common pleas that one Robert Baker be ordered to give security for costs, on the ground that he was the party in interest, and that the plaintiffs on the record were poor. The plaintiffs not objecting nor disputing the facts, as alleged by the defendant, the motion was granted, and Robert Baker furnished security accordingly. No evidence was then introduced to show what his interest was. Upon trial the defendant moved the court to order a nonsuit, on the ground that the action could not be maintained in the name of Robie and wife. The plaintiffs then introduced a power-of- attorney from the plaintiffs to Robert Baker, empowering him, in the name of the plaintiffs, but for his own use and benefit, to de- mand and receive assignment of dower in , the -premises, and, in case dower should not be assigned on demand, to commence and 430 LAW OF HUSBAND AND WIPE. prosecute any action or actions which he might deem advisable, in the name of the plaintiffs, and to compromise and settle their claims, and give all necessary releases, and also to sell and assign the dower in the premises when received, and execute deeds, etc. The defendant renewed his motion for a nonsuit, which was refused, to which the defendant excepted. The defendant pleaded that "the said Sally Robie ought not to have her dower of the third part of the said premises, etc., be- cause he says the right of the said Sally Robie to dower in the said land, with the appurtenances, did not accrue at any time to her, if at all, within twenty years next before the said demandants or either of them made any claim or demand of dower in the prem- ises, or at any time within twenty years next before the commence- ment of this suit." To this plea there was a general demurrer, which the court allowed, and the defendant excepted. There were four other pleas on which issues were joined, and all found by the jury for the plaintiffs. The following facts were found by the jury, or admitted. 1. Benjamin Baker was duly seized of the premises during the coverture of the said Sally Robie with him, from March 19, 1825, to August 31, 1826. 2. Benjamin Baker died February i, 1831. 3. No demand for dower upon the tenant was made by the plaintiffs, or either of them, till October 12, 1853. PerleYj C. J. By the statute of June 19, 1805, it was pro- vided that no person or persons should make any entry into land, or should sue or maintain any action for recovery of lands or tene- ments, unless such person or persons, or those under whom they claimed, had been seized within twenty years. Moor v. Frost, 3 N. H. 126; Barnard v. Edwards, 4 N. H. 107. In the Revised Statutes the limitation of real actions is in the following terms : "No action for the recovery of any real estate shall be maintained unless such action is brought within twenty years after the right first accrued to the plaintiff, or to the person under whom he claims, to commence an action for the recovery thereof." The ground taken by the defendant is that this limitation ap- plies to the writ of dower, and begins to run from the time when the widow's right to dower accrues on the death of her husband, and not from the time when by our statute she is entitled to com- mence a suit after the expiration of one month from her demand of dower. But we think there was no intention on the general revision of the statutes to make such a change in the law, but RIGHTS OF SURVIVING WIFE. 431 merely to reenact the former limitation in briefer and simpler terms. The former statute required the demandant to show that he had been seized within twenty years next before the commence- ment of his action. But where an action was brought to recover land of which the plaintiff had been wrongfully dispossessed, his seizin would, in contemplation of law, continue down to the time of the wrong which he complained of, and which gave him his cause of action. His seizin would end at the same time when his action accrued, and under the former statute the plaintiff was re- quired to bring his action within twenty years after it accrued. The substance therefore of the two statutes is in reality exactly the same, although the phraseology is somewhat changed. By both limitations the plaintiff is required to bring his suit within twenty years next after his right of action accrues, and by both his action is barred if for twenty years he acquiesces in a wrong- ful dispossession of his land. Besides, by the Revised Statutes the suit is to be brought within twenty years after the right accrues to commence an action, and not within twenty years after the right or title in the land accrues. No right of commencing an action has accrued to the widow, and she has suffered no wrong until the tenant has neg- lected to assign dower for one month after she has demanded it. This plaintiff's right to commence an action did not accrue on the death of her husband, but upon the expiration of one month from her demand of dower. We think, therefore, that the plea stated in the case is bad, and that the demurrer to it was properly allowed. Before assignment the widow's right to dower is not regarded as an article which she can convey. The writ of dower must be in her name, and cannot be maintained in the name of an assignee or purchaser. There is no ground to hold that her right of dower would be forfeited by an attempt to sell and convey. The party who takes a conveyance of the right of dower would have an equitable interest, and in this case Jae Jaas an express authority from the widow to prosecute the suit in her name. It could not be prosecuted in any other, and we think the suit might be carried on by the assignee in the name of the widow, thoug-h according to his contract with her the recovery might be for his benefit. Pozvell v. Powell, lo Ala. 900. The motion to dismiss the suit was therefore properly denied. Judgment for the plaintiffs. 432 LAW OP HUSBAND AND WIFE. s. Dower Assigned. FRENCH V. PETERS, 33 ME. 396. (1851). On facts agreed. Dower, nnde nihil habet, brought by the widow of Zadoc French, who, at one period during her coverture with him, owned the land upon which the Penobscot Exchange House stands, and also many other tracts of valuable land in the city of Bangor. This suit is brought to recover dower in the Exchange House lot. On January 19, 1829, the husband, in order to raise money for his own use, mortgaged that lot to Eben. French, alleging the con- sideration to be $12,000. The demandant did not join with her husband in executing the deed. But, on the 4th of February, 1829, she executed upon the back of that deed, an instrument under her hand and seal, relinquishing to the mortgagee her right of dower, reciting therein that the relinquishment was done by the consent of her husband as testified by his being a party thereunto. The husband however did not join with her in that instrument. The consideration of her said relinquishment was stated to be "the within named sum of $12,000." The mortgagee, on the next day (5th February, 1829), as- signed the mortgage to this defendant, Peters. In July, 1 83 1, after her husband's death, she applied to the Probate Court for an assignment of her dower, and thereupon several entire parcels of land, including the Exchange House and its lot. were assigned to her in dower, instead of one-third in each of the parcels, of which her husband was seized at his death. To this assignment she and the heirs assented, and she entered into the possession of the parcels so assigned. In 1842, the mortgage was fully foreclosed, and the demand- ant was thereupon evicted of the most valuable of the parcels assigned to her in dower. Zadoc French's administrator sold lands belonging to the estate, having been duly licensed, on giving to the Judge of Pro- bate a bond (upon which this demandant was a surety), to ac- count for the avails. He, however, misappropriated a large amount of the proceeds of the sale. The grounds taken in defence were : — I. That the demandant's right of dower was barred by the relinquishment which she had executed and indorsed upon the mortgage deed; — RIGHTS OF SURVIVING WIPE. 433 2d, That the assignment of dower made by the Probate Court is a bar to this suit ; — 3d. That the mortgage debt due to the tenant, Peters, ought to have been paid from the avails of the land sold by the admin- istrator, upon whose bond the demandant, as a surety, will be liable to repay to the tenant the balance of that debt. And that debt will be made the larger by her recovery in this suit, and to the very amount of such recovery, because it lessens to that extent the value of the property upon which the mortgage was fore- closed. Wherefore, to avoid circuity, the demandant must be estopped to recover in this suit. Shepley, C. J. The tenant derives his title to the premises by virtue of a conveyance in mortgage made by the husband of the demandant to Ebenezer French on January 19, 1829. The demandant did not join with her husband in that conveyance, but by a separate deed written upon the back of it, and executed by her alone on February 4, 1829, she relinquished to the mortgagee her right of dower. She recites in that deed, that this is "done by the consent of my said husband, testified by his being a party hereto," but the deed contains no other language suited to indi- cate, that her husband was to be a party to it. As the considera- tion is stated to be "the within named sum of twelve thousand dol- lars paid to him, the words first named, may have reference to the husband's being a party to the within deed. Whether the deed executed by the demandant operated as a valid relinquishment of her right of dower, is the question first arising for decision. It has become part of the history of this branch of the law, that Parsons, C. J., in the case of Fowler v. Shearer, represented the authority of a wife to bar herself of dower by deed, to have been derived from an ordinance of the province of Massachusetts Bay and from an act of the provincial legislature, and that he states it to have been "sometimes done by her separate deed sub- sequent to her husband's sale, in which the sale is recited as a con- sideration, on which she relinquishes her claim to dower." He refers to it also as a usage and as New England common law. What the usage was, as it respects the mode of execution by the wife, there was no means of ascertaining except from the remarks of the chief justice, and those have not been regarded as free from ambiguity. When the same question came under consideration in the case of Rowe v. Hamilton, 3, Greenl. 63, the ordinance and usage 434 LAW OF HUSBAND AND WIFE. were not regarded as of practical importance as it respected deeds executed after the passage of the provincial act of 1697, for the court considered, that all previous statutes and provisions were thereby superseded. The act last named could have no effect upon such conveyances made after the passage of the act of March 10, 1784, directing the mode of transferring real estate: and this act was superseded in this State, by the acts of February 19, 1821, chap. 40, and of February 20, 1821, chap. 36. The former Ordinance, Acts, usages, and decisions, can have no further effect than to aid one in arriving at a correct construc- tion of the acts last named. The construction of the Ordinance, Acts and usages of Mas- sachusetts was considered in the case of Rozve v. Hamilton, and of Powell V. Monson and Brimiield Manf. Co., 3 Mason, 347, and of Shaw V. Russ, 14 Maine, 432. In the latter case the court con- cluded, that a release executed by the wife alone on January 9, 18 1 7, for a consideration paid to the husband, was unauthorized by the statute then in force, and that it was void. It having been stated in the case of Fowler v. Shearer that the sale by the husband should be recited as the consideration for the separate deed of the wife, it has been considered in some of the subsequent- cases to have been an essential ingredient to a valid relinquishment of dower by the wife. Whatever foundation there may have been in the usage re- ferred to for such a position, there will be found none in the lan- guage of the act of 1784, or in any of the preceding or subsequent enactments. Whether an intention ever did exist or could have existed and have been so frequently carried into effect in the exe- cution of such deeds as to become a usage so as to make the valid- ity of a deed depend upon such a recital may well be doubted. The provisions of the act of February 20, 1821, in force, when the deed of the demandant was executed, declared that a widow should not thereby be deprived of her dower "who did not join with her husband in such sale or mortgage, or otherwise lawfully bar or exclude herself from such dower or right." The latter clause, as stated in the case of Pozvell v. Monson and Brimiield Manf. Co., has never been construed to let in any usage or prac- tice not consonant to the principles of the common law. It doubt- less had reference to modes recognized by that law as effectual for such a purpose, such as jointures, marriage settlements, and ac- cepted devises. If this be the true construction of that clause the only mode provided by that statute for a relinquishment of dower PIGHTS OF SURVIVING WIFE. 435 by the conveyance of a wife, was by her joining with her husband. By. the provisions of the other statute, chap. 40, § 6, a widow is entitled to dower, except when by her 'own consent she has been provided for by a jointure "or where she may have relinquished her right of dower by deed, under her hand and seal." It was not the purpose of that statute to prescribe the kind of deed, which should have that effect, but to declare, that when she executed a deed under her hand and seal, that would have the effect to relinquish her dower, it should operate as a bar. A deed executed by her with her husband is a deed under her hand and seal. One executed by her alone, the law does not recognize as her deed. The words of the statute, by deed under her hand and seal, are fully satisfied by a reference to the law, to ascertain what would be her deed ; and they do not call for a construction, that would make any instrument signed and sealed by her a valid deed. If a construction should be given to these words, which would confer powers not known to the law, that clause of the statute would be in conflict with the provisions of the statute, chap. 36, § 2 ; and by the provisions of one statute she could only bar herself of dower by joining with her husband, and by another she could do it alone withouj the aid or consent, and even against the will of her husband. It is worthy of notice, that the Revised Statute, chap. 95, § 9, provision is made that a wife may be deprived of her dower by joining with her husband or with his legally authorized guardian in a deed releasing it. In a note appended by the commissioners of revision to that chapter and section as presented by them it is said, "there have been different opinions on the subject of a mar- ried woman's release of her right of dower as to the mode. The better and the received opinion now is, that the law on the subject is correctly stated in this section." The legislature enacted the section, to which this note was appended, withsome verbal but not substantial alterations, thereby presenting, as it were, a legislative sanction to such a construction. In the cases of Wilkins v. French and of French v. Pratt, the opinions state, that the demandant had relinquished her right of dower in the premises, but it is so stated historically only in a recital of the facts, and not as a matter considered and decided by the Court. The deed of the demandant must therefore be regarded as inoperative and ineffectual to release her right of dower in the premises. 436 LAW OF HUSBAND AND WIFE. The next question presented is, whether the assignment of dower made by the Probate Court is a bar to this action. Although dower may be assigned to a widow in an estate conveyed by her husband during coverture in mortgage, that assignment cannot be valid against the title of the mortgagee, with- out an extinguishment of his mortgage. When the mortgage is foreclosed, his title commences from its date, and the widow can have dower only in that estate as in one conveyed by the hus- band, and can receive only one-third part of the rents and income ; and an assignment by the heirs or by the Probate Court of the whole estate as dower, is avoided by a foreclosure of the mort- gage. It is insisted, that an acceptance of that assignment by the widow is a bar to an action at law to recover her dower, and that it was so decided in the case of French v. Pratt. That case and the case of Jones v. Brewer, decide only that an assignment of dower against common right and an acceptance of it, deprive a widow of her right to dower in lands, in which dower was not assigned, not in lands in which dower was assigned. Ijlor are the principles or authorities on which those decisions were based, applicable to a case like the present. The rule as stated by Lord Coke is, that if the heir endow the widow of certain lands, of which the husband died seized, in satisfaction of all dower, as well in the lands of his feofees as in his own lands, the several feofees shall take advantage of it, whether she be deprived of the benefit of such dower or not. This rule does not affect the relation existing between the widow and the owner of lands, in which dower has been assigned. If a widow be endowed against common right in several tracts of land, one of which had been conveyed in mortgage, by the foreclosure of which she is deprived of her dower in that tract, the owner of it cannot plead to an action of dower commenced by her, that dower was assigned to her in other lands, in satisfaction of all dower. When thus deprived of a part of her dower by the act of the mortgagee or his assignee, no injustice is done to him by considering the assignment of dower so far void as to enable her to recover her dower in the premises, as she might have done, if her dower had been assigned according to common right. His estate is not subjected to any greater burdens on account of dower, than it might have been, had no such assignment been made. While no injustice is done to either by considering the parties after such avoidance of the assignment of dower, as remitted to their original RIGHTS OF SURVIVING WIFE. 437 rights, it appears to be the only mode, in which the rights of the widow can be protected. If a husband should die seized of one tract of land only con- veyed by him in mortgage, the widow, according to the case of Wilkins V. FreAch, should have her dower assigned by the Pro- bate Court; and if she had no other property, she might be de- prived of her whole dower by a foreclosure of the mortgage, unless such assignment were held to be good as against him as well as against the owner of the equity of redemption. She might thus lose her whole dower without fault on her part, or on the part of the mortgagee ; and if the assignment made by the Probate Court were to be regarded as an effectual bar to an action to recover her dower in the same land, the owner would be relieved from her claim to dower in land clearly subject to it, by presenting an as- signment made by the Probate Court, as ineffectual to give her dower as against him, and yet as effectual to bar her action at law to recover it. Such an assignment cannot be considered as effect- ual for one purpose and as void for another purpose, so far as it relates to the same estate. Nor is there any sufficient reason to distinguish such a case from one like the present, in which the assignment has been avoided in part only, so faf as it respects the land, in which the assignment has been avoided. The strength of tbe position presented in defence may be tested by considering it, as it would be presented by a special plea setting forth an assignment of dower made to the demandant by the Probate Court and an acceptance of it by her, to which a repli- cation had been made setting forth the execution of the convey- ance in mortgage, its assignment to the tenant, and its foreclosure by which the assignment of dower had been avoided so far as it respects the premises, and that to this replication there had been a demurrer. Judgment could not be rendered for the tenant with- out deciding, that proceedings which had been avoided so far as it respects the premises, were still operative to bar an action to recover dower in them. The conclusion is, when dower has been assigned against com- mon right, and such assignment has been avoided in certain por- tions of the land by the acts of the owner, both parties are restored to their original rights in such portions. . . A third ground of defence presented is, that the demandant was surety on the bond of the administrator on her husband's estate, who has misapplied a sufficient amount of that estate to have paid the mortgage held by the tenant, who would thereby 438 LAW OP HUSBAND AND WIPE. have been exempted from any loss occasioned by a recovery of dower. This assumes, that the premises after the recovery of dower will be insufficient to pay the whole of the debt secured by the mortgage, and that a suit upon the bond of the administrator could be maintained to recover for any loss occasioned by the recovery of dower. Neither this, nor some further grqunds of defence presented, can be regarded as sufficient to prevent a recov- ery, by the demandant. Tenant defaulted. 3. HOMESTEAD. THOMAS v. THOMAS, 73 IOWA, 657. (1887). Action brought to partition certain real estate. A decree was entered confirming the interests of the parties in the action to the lands, and declaring that partition should be made, and fur- ther ordering that Isabelle Thomas, widow of the pterson who died seized of the lands, should, within a time specified, elect whether she would take her distributive share of the lands, or her homs- stead right therein, and that, when such election should be made, partition of the lands should be decreed ; and the case was con- tinued for such election and the appointment of a referee. The widow appealed from this decree and order, and plaintiff appealed from a decision of the court in refusing to make a subsequent order requiring the widow, after her appeal, to make the election. V. Wainwright, for plaintiff. Wooden & Jackson, for Isabelle Thomas. Beck, J. — ^I. The petition alleges that plaintiff and certain of the defendants are heirs at law of Charles Thomas, who died intestate October 22, 1886, seized of lands therein described, and that defendant Isabelle Thomag is his widow. These allegations are not denied in the widow's answer. An amended petition avers that the personal estate of Charles Thomas is amply sufficient to pay all debts and claims against the estate, and that the widow has given notice that she will, upon a day named, present a peti- tion to the proper court, asking for the admeasurement of her dower. The original petition prays for the partition of the lands, and the amendment prays that the widow be restrained from insti- tuting proceedings for the admeasurement of her dower. The widow answered the petition and amendment thereto. BIGHTS OF SURVIVING WIFP. 439 alleging, among oth^r things, that letters of administration had^ been issued on the estate October 30, 1866, and that the adAiinis- trator duly qualified on that day; that her dower had not been admeasured, and she had made no election whether she would take the homestead or her distributive share; that sufficient time had not elapsed since the death of her husband in which she could be fully advised of her rights, so that she could make the election ; and that her interests and rights will be materially prejudiced if the action of partition be maintained. To this ans>wer plaintiff filed a demurrer, which was submitted for determination with the decision of the case, after trial. The court decided upon the plead- ings and evidence that plaintiff was entitled to have partition of the huidSr and entered a decree settling the interests of the parties therein ; but, finding that the widow's dower had not been admeas- ured, and that she had not elected whether she would take her dower or her homestead rights in the land, it was ordered that she be required to elect at or before the next term of the court whether she would take dower or her htMnestgad rights, and that the cause be continued for her election, and for the appointment of the ref- erees to make partition. This decree was rendered by the Hon. J. H, Henderson, one of the judges of the district court. At the next term, the widow having failed to make her election, the plaintiff asked that a decree be entered against her, to the effect that she had, by the possession and occupancy of the homestead, and other acts shown by the evidence, elected to hold under her homestead right. But, though the court found she had failed to make the election, yet as it was found she had appealed from a prior decision, and superseded it by bond, the request of plaintiff was refused. This decision was made by the Hon. O. B. Ayres, another judge of the district court. From the decree the widow appeals ; and from the decision last mentioned plaintiff appeals. II. First The widow cannot take both dower and home- stead, but must elect which she will take. (Butterfield v. Wicks, 44 Iowa, 310; Holbrook v. Perry, 66 Id., 286.) Second. The dower of the widow is not subject to the debts of her dteceased husband, and is to be set apart without reference thereto. (Mock V. Watson, 41 Iowa, 241.) Third. The continued occupancy of the homestead, in the absence of an election to take dower, will be deenied an election, in effect, to take under the homestead rights. (Holbrook V. Perry, supra.) III. Courts of equity have concurrent jurisdiction with courts of law in the assignment of dower. (Starry v. Starry, 21 440 LAW OF HUSBAND AND WIFE. Iowa, 254 ; Phares v. IValters, 6 Id., 106 ; McCraney v. McCraney, 5 Id., 232; Gano v. Gilrath, 4 G. Greene, 453.) It therefore fol- lows that the proceedings authorized by Code, §§ 2444-2451, for the admeasurement of dower, are not exclusive; but it may be assigned and set off in a proceeding in chancery, — the forum in which proceedings for partition are had under our statute. ( Code, § 32770 This cause was rightly commenced in chancery, and a partition of the lands may be made therein, if the plaintiff has shown that the right to partition now exists. We proceed to inquire whether partition may be enforced in this action. IV. The heirs take lands subject to the debts of their ances- tor, which are enforced by proceedings in the Probate Court, wherein claims, except those entitled to preference under the laws of the United States and those for public taxes, are barred, if not filed and proved within one year after the giving of the notice of the appointment of the administrator. It is plain that the inter- ests of the heirs in tlie lands of the estate cannot be determined until the extent of the indebtedness of the estate be known, or rather, it cannot be determined just what land or what interest therein is subject to partition among the heirs until that time. The lands, or such part thereof as is necessary, may be sold by the administrator to pay debts. He would sell, not an interest in all the lands, if it is not necessary to sell all, but all interest in such parts as may be necessary to realize a sum sufficient to pay debts. It is plain that the lands cannot be partitioned subject to the claims of creditors of the estate, for it cannot be determined just what lands, after the payment of debts, will be owned by the estate, or will descend to the heirs. The creditors cannot be sub- jected to delays, or impeded in the enforcement of their claims against the lands of the estate. So the law will not permit the vain thing to be done of partitioning lands when it cannot be deter- mined what interest the heirs have in them, nor just what lands are subject to partition. V. And justice to the widow demands that the partition of land be not made until after the extent of the indebtedness of the estate is determined. It is true that her dower is not subject to the debts of her deceased husband ; but, as we have seen, she is entitled to take under her homestead rights, or, rejecting the home- stead, she may take her distributive interest, — her dower — in lands of the estate generally. She may exercise an election as to whether she will take under her homestead rights, or her dower interest in the lands. It is plain that the condition and value of RIGHTS OF SURVIVING WIFE. 441 the homestead and of the other lands of the estate may be such that the widow cannot determine whether it would be better for her to take in one way or the other, until the extent of the indebt- edness of the estate is determined. If the occupancy of the home- stead for hfe be of more value than one-third of the real estate in fee simple, to which she is entitled as dower, she would take the homestead. But, if the values are different, she would make a different election. She ought not, therefore, to be compelled to make the election until the extent of the indebtedness of the estate is determined. We reach the conclusion that, when this action was instituted and tlie decision of the court was rhade, the time hod not come for partition of the lands, or to require the widow to make her election as between her homestead and dower rights. VI. There was evidence tending to show that the personal • estate of the intestate, worth $io,ood to $12,000, was sufficient to ■pay all debts, which amounted to $2,500. But these figures are mere estimates based upon present knowledge of the debts and the present condition of the property. There may be other debts not known now. The personalty may be destroyed. There are many contingencies impairing confidence in the evidence upon which plaintiff bases his claim that the personalty will pay the debts, and that, therefore, the lands may be partitioned among the heirs. It cannot now be adjudicated that this claim is based upon facts, and surely chancery will not decree relief when it is uncertain that the parties asking it are entitled thereto, and when it may work injustice to some of the parties. VII. We do not hold that proceedings to admeasure dower can be delayed longer than is necessary to determine the extent of the indebtedness and the quantity of land required to be sold in order to pay debts. The condition of proceedings to settle the estate must be such that these matters may be adjudicated so that all concerned will be bound thereby, and the heirs may take the lands free from the claims of creditors of the estate, and the cred- itors may in no measure be delayed or impeded in en- forcing their claims, and the widow may make her election upon full knowledge of proceedings and adjudications which affect the quantity, and of course the value, of the real estate out of which the dower may be carved. This surely can- not be done before the time has expired which operates as a bar to filing claim.s, and no equitable reasons exist to permit any claims to be filed thereafter, and before the claims filed are paid. Indeed, we think proceedings for partition, and to require the 442 LAW OF HUSBAND AND WIFE. widow to elect whether she will take dower or the homestead, should be delayed until the estate, as to the debts against it and legacies, may be found, upon adjudication, to be fully settled. Of course, there should be no unnecessary delay in settling the estate, and the heirs must be permitted to urge and enforce such speed in the proceedings to settle the estate as will not prejudice the rights of creditors and the widqw. VIII. We think the district court rightly held that the widow's appeal and supersedeas arrested proceedings in the case so far as to forbid the court to require the widow to make the elec- tion of dower or the homestead. We have shown in our discus- sion of the case that this could not have been done at that time for other reasons. We reach the conclusion that plaintiff's petition ought to be dismissed. The decree and order of the district court is reversed on defendant's appeal and affirmed on plaintiff's appeal. XI. DIYORCE. 1. JURISDICTION. HOOD V. THE STATE, 56 IND. 263. (1877). r From the Dearborn Circuit Court. C. S. Jelley, Gregg & Parks, and A. C. Downey & Sons, for appellant. H. D. McMullen, G. R. Brumblay, Prosecuting Attorney, and C. A. Buskirk, Attorney General, for the State. Perkins, C. J. Indictment against Nelson F. Hood, for liv- ing in open and notorious fornication with one Jane Chaney. A motion to quash the indictment was overruled. Plea, not guilty. Trial by jury; conviction. New trial denied, and the defendant sentenced, over a motion in arrest of judgment, to pay a fine of one hundred dollars, be imprisoned in the county jail six months, and pay the costs of the prosecution, etc. A bill of exceptions contains the evidence. The State proved that the appellant, Hood, was married in Clark county, Indiana, to Maggie Horton, in July, 1869, and that said Maggie is still living. The State proved further, that, in June, 1876, the appellant. Hood, married Miss Jane Chaney, of the State of Kentucky, and that soon after the marriage the two took up their residence in Aurora, Dearborn county, Indiana, where they continued to reside, living together openly and notori- ously as man and wife, till the finding of this indictment. The appellant then gave in evidence parts of the statutes of Utah on the subject of divorce. The first section of that statute confers jurisdiction upon the Probate Court to grant divorces. The second section provides, that ''The petition for a bill of divorce must be made in writing, upon oath or affirmation, and must state clearly and specifically the causes on account of which the plaintiff seeks relief. If the court is satisfied that the person so applying is a resident of the territory, or wishes to become one, and that the application is made in sincerity, and of her own free- will and choice, and for the purpose set forth in the petition, the 444 LAW OF HUSBAND AND WIFE. court may decree a divorce from the bonds of matrimony, against the husband, for any of the following causes, to wit." Here fol- lows a specification of causes. Section 3 is this : "The husband may, in all cases, obtain a divorce from his wife for like causes, and in the same manner, as the wife may obtain a divorce from her husband." The statute provides, further, for the service of process on persons found within the territory, and for publication of notice to those made defendants who can not be found within the territory. The appellant then gave in evidence the record of a suit for divorce, prosecuted in Utah Territory. The commencement of the complaint in the suit is as follows : "Nelson P. Hood v. Maggie H. Hood, in the Probate Court of Beaver County, Territory of Utah. "The plaintiff complains, and alleges, that plaintiff and de- fendant are husband and wife; that ithey intermarried at Jeffer- sonville, State of Indiana, on the 3d day of July, 1869, and ever since have been, and now are, husband and wife; that plaintiff wishes to become a resident of Beaver county, Utah, but is so situated that he can not, at present, carry his desires into effect." The complaint then proceeds to state grounds on which a divorce is prayed. It is signed ; "Nelson F. Hood. "A. Goodrich, Plaintiff's Attorney." The complaint was sworn to in Cook county, Illinois, before "A. Goodrich, Commissioner of Deeds for Utah Territory," on the 14th day of August. 1876, and filed in the plerk's office of Beaver county, in said Territory, on the 24th day of the same month, acGonipanied by an affidavit of the non-residence of the defendant. This affidavit was sworn to on the 14th day of August, 1876, the day on which the complaint was verified, before "A. Goodrich, Commissioner of Deeds for Utah Territory," appar- ently the same person who administered the oath of the appellant to the complaint. After entries of further interlocutory proceedings, the calling of the defendant, the entering of her default, the hearing of proof of the allegations in the complaint, etc., the record continues thus: "On the 4th day of October, A. D. 1876, the same being one of the days of the September term of the Probate Court of Beaver county, Utah Territory, and the said plaintiff appearing by his counsel, A. Goodrich and Daniel Tyler, and the said defendant not appearing by herself or counsel, and having been duly served with DIVORCE. 445 the process of this court as required by the .statute, summons hav- ing been duly served upon her by publication of the san^e for, forty days, in said Territory, as required by the statute of Utah, and having been three times solemnly called to plead, answer or demur to plaintiff's said complaint, and coming not, but making default herein, the complaint of said plaintifi' was thereupon taken pro confesso. And now again on this the 4th day of October, 1876, it being at the September term, A. D. 1876, of court, the said cause came on for hearing before the court. "And the court having heard the testimony in said action, from which it appears that all the material allegations in plaintiff's petition are true, and sustained by the testimony, free from all legal exceptions, as to the competency, admissibility, and sufficiency, that the plaintiff and defendant were lawfully married at Jeffer- sonville. State of Indiana, on the 3d day of July, 1869, and that said parties can not live in peace and union together, and that their welfare requires a separation, and that the plaintiff wishes to be- come a resident of the county of Beaver, and Territory of Utah, that said matters and things so alleged and proved in behalf of the plaintiff are sufficient in law to entitle the plaintiff to the relief prayed for. "Therefore, it is ordered, adjudged, and decreed, that the court, by virtue of the power and authority therein vested, and in pursuance of the statute in such case made and provided, does order, adjudge, and decree, that the marriage between the said plaintiff. Nelson F. Hood, and the said defendant, Maggie H. Hood, be dissolved, and the same is hereby dissolved accordingly, and the said parties are, and each of them is, freed and absolutely released from, the bonds of matrimony, and all the obligations thereof; and that all and every duty, rights, rights of dower and courtesy, claims, and claims for alimony, accruing to either of said parties by reason of said marriage, shall henceforth cease and determine, and that the said parties be severally at liberty to marry again in like manner as if they had never been married. [Signed] "William James Cox, "Probate Judge of Beaver County." There was evidence tending to prove that appellant, Hood, was not within the Territory of Utah during the year the above decree of divorce was granted, and had not been for years pre- vious. The indictment in this case was predicated upon section 21 of the act touching misdemeanors (2 R. S. 1876, p. 466), which reads thus : 446 LAW OF HUSBAND AND WIFE. "Every person wha shall live in open, and notorious adultery or fornication shall be fined in any sum not exceeding one thou- sand dollars, and imprisoned not exceeding twelve mosths." The point is made that an indictment will not lie upon this section of the misdemeanor act, because it does not define the offences, or either of them, named in it. Such was formerly held to be the law in this State, but latterly the law has been held other- wise. The statute (our misdemeanor act), upon a section of which the indictment in this case is based, was approved June 14th, 1852. Another statute had been enacted on the 31st of May, 1852, i G. & H. 415, which declared, that "Crimes and misdemeanors shall be defined, and the punishment therefor fixed, by stattites of this State, and not otherwise." In IVall v. The State, 23 Ind. 150, this court, in construing the act of June loth, 1852, touching felonies, and the act of May 31st, 1852, supra, held, that these statutes can not be construed together, but fall within the rule that a later stat- ute repeals a prior inconsistent one, and that whenever, after the 31st of May, 1852, the legislature does create a crime by name, without defining it, such statute, being in conflict with the act of the 31st of May, supra, repeals that act, and the act creating a crime. Without defining it, stands. This decision was followed in The State v. Craig, 23 Ind. 185, and in The State v. Oskins, 28 Ind. 364, and the earliest cases holding the contrary doctrine, viz. : Hackney v. The State, 8 Ind. 494 ; Jennings v. The State, 16 Ind, 335 ; The State v. Huey, 16 Ind. 338, and Marvin v. The State; 19 Ind. r8i, are overruled in IV all v. The State, supra. We adhere to the later decisions, in the interest of legal stability. The next question arising in the cause is this, is the divorce granted in Utah valid ? It is valid, if the court granting it had full jurisdiction. Had it? It appears by the record that the divorce was granted in a suit between two persons, neither of whom was, at the time of the proceeding, a resident of Utah, or within the boundaries of the Territory, nor had previously been, but both of whom were resi- dents and citizens of a state in the Union. Neither of the parties ■ had placed himself or herself under the jurisdiction of Utah. Such being the case, it is well established that the court in Utah bad, and could have, no jurisdiction to grant the divorce in ques- tion, and that the same is inoperative and utterly void. This is a question to be decided by the jus gentium, the law of nations, the first principles of which are, that all nations, in respect to rights. DIVORCE. 447 are equal, and that each is sovereign within its own territory, with jurisdiction over the persons and property therein, i Kent Com. 21. Hood, when the divorce in question was granted, was under a jurisdiction other than that of Utah. 'It is further settled, that the states of the Union, as between themselves, are sovereignties. In determining this question of jurisdiction, therefore, we have only to enquire what jurisdiction the State of Indiana has over the people and property within the Territory of Utah ; for, on this point, the states and territories are severally equal. What juris- diction Illinois can exercise over residents and property in Indiana, Indiana can exercise over residents and property in Illinois. To place this matter in another light, a state may authorize divorces to be granted by legislative act. Suppose, then, that the legislature of Utah had granted this divorce (neither of the par- ties being citizens or inhabitants of the territory), severing a do- mestic relation between two citizens of, and residents in, Indiana, would any one claim that the divorce would be valid? If it would be, then it follows that the State of Indiana can confer upon her legislature power to divorce, by statutory enactment, husbands and wives, citizens and residents of Utah, or of Illinois or of Ohio. And if so, what becomes of the doctrine of the sovereignty of states and hati6ns within their own respective territories? And if the legislature of Utah cannot grant divorces to residents and citizens of foreign states, it cannot confer sUch power upon the j'udiciary of the state. Certainly, as a general proposition, states and nations cannot exercise such extra-territorial jurisdiction. But we need not enlarge upon these established elementary principles. The case before us is too plain to admit of argument. It is shortly this : Hood desired to obtain a divorce from his wife. Neither of the parties was under the jurisdiction of Utah. The petition of Hood and the decree of divorce expressly state this fact. If he was not a citizen and resident of Utah, he was of some other state or nation. Still the court of Utah grants a divorce to a man who informs it, in his application, that he is under a jurisdiction other than that of the Territory of Utah, and that he is not sub- ject to hers. The divorce manifestly was granted in violation of the sovereignty and jurisdiction of another state, and in violation of the plainest principles of international and constitutional law. The provision in the statute of Utah,, authorizing her courts to grant divorces to citizens of foreign states and nations, who were not, but desired to become, residents of Utah, was ultra vires, and void. No plainer or more palpable case of the exercise of extra- 448 LAW OP HUSBAND AND WIFE. territorial jurisdiction could exist. Hood was not only not a citi- zen or resident of the territory, but he did not personally enter the territory, so as to give it jurisdiction over him for temporary police purposes. We cite on the question of jurisdiction the fol- lowing cases in our own State and the cases referred to in them : Sturgis V. Fay, i6 Ind. 429; The Eaton, etc., R. R. Co. v. Hunt, 20 Ind. 457; Beard v. Beard, 21 Ind. 321 ; Constitution of Indiana, article 14. Nor is the decree of divorce, in this case, within the opera- tion of that clause of the Constitution of the United States which declares, that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." Const. U. S., art. 4, § i. That clause does not include judgments and decrees which severally show upon their face, that the courts rendering them had no jurisdiction in the premises. Waltz v. Borrozvay, 25 Ind. 380; Cooley Const. Lim., 2d ed., p. 17. To avoid misconstruction, we wish it to be borne in mind, that the record of the suit in the Territory of Utah, in question in this case, was not one upon an ordinary, simple contract between parties, who could make and rescind such contract at pleasure, but it was a suit to sever the bonds of matrimony between the par- ties in that suit ; to dissolve a relation into which the parties could enter only in accordance with the law of the state, and which could not be dissolved by act of the parties, but only by permission of the state having, at the time, jurisdiction over both or one of them. As is well said by Stuart, J., in Noel v. Ewing, 9 Ind. 37 : "Mar- riage is more than a contract. It is not a mere matter of pecuniary consideratioH. It is a great public institution, giving character to our whole civil polity." It is a status ; a domestic relation re- sulting from a consummated contract to marry. Ditson v. Ditson, 4 R. I. 87 ; The People v. Dawell, 25 Mich. 247. It is to a pro- ceeding to dissolve such a relation, that what is said in .this case applies. To give jurisdiction in a divorce suit, the plaintiff, the peti- tioning party, must be a resident of the state or territory where the divorce is obtained. This fact gives jurisdiction of such per- son, and renders the divorce (notice by publication or otherwise having been given to the defendant) valid as to the plaintiff. And, being valid as to one, public policy demands that it should be held valid as to both parties. Tolen v. Tolen, 2 Blackf . 407 ; Jenness V, Jenness, 24 Ind. 355; Ewing v. Eiinng, 24 Ind. 468; Ditson v. DIVORCE. 449 Ditson, supra. Having arrived at the conclusion that the Utah divorce was void, and that appellant is still the husband of the woman whose maiden name was Maggie Horton, and that he is not the husband of Jane Chaney, we proceed to enquire whether he is shown to be guilty of the offence for which he was indicted. He was indicted for fornication. Our statute does not define for- nication or adultery; but crimes, as we have seen, need not be defined by the statute, and, consequently, the court must judi- cially declare the definition. Fornication is sexual intercourse between a man, married or single, and an unmarried woman. Adultery is sexual connection between a married woman and an unmarried man, or a married man other than her own husband. These definitions are not in accordance with some authorities, but they are with others, and, we think, the better; and they, appear to us to be in harmony with the reason of things^We will limit the discussion of this topic to the question of adultery; as when we show what that is, we necessarily show what fornication is, as unlawful sexual intercourse that is not adultery is fornication. "By the civil law adultery could only be committed by the unlawful sexual intercourse of a man with a married woman. Thus, as is stated in Wood's Institute, 272, adultery is a carnal knowledge of another man's wife, and the connection of a married man with a single woman does not make him guilty of the crime of adultery." Dewey, J., in Commonwealth v. Call, 21 Pick. 509. Bicknell, in his Criminal Practice, p. 446, thus states what he understands to be the law in Indiana on this point : "Strictly, adultery consists in carnal connection with another man's wife : such an act is adultery and not fornication, 2 Blackf . 318 ; and the sexual intercourse of any man with a married woman, is adultery in both, and the intercourse of a married man with an unmarried woman, is fornication in both." In The State v. Wallace, 9 N. H. 515, it is held, that "an unmarried man, who has unlawful intercourse with a married woman, from which spurious issue may arise, is guilty of adul- tery." But the case in which the question has been more fully and learnedly examined than in any other which has fallen under our notice is The State v. Lash, i Harrison, 380, from which we make copious extracts : "There never was an action for adultery known to be main- tained at the common law by any but a husband ; shewing that the offence can not possibly be committed with any other than a mar- 450 LAW OF HUSBAND AND WIFE. ried woman. The heinousness of it consists in exposing an inno- cent husband to maintain another man's children, and having them succeed to his inheritance. This is the common law doctrine of adultery, transmitted to us from the earliest times, by those vener- able sages, who gathered it from existing precedents, records and decisions, at tlie times they respectively wrote. I shall cite only a few of them, because the records and decisions referred to by them, have been so faithfully consulted, and the testimony of- those sages examined and condensed with such admirable precision, in the imperishable commentaries of Blackstone, that it is almost vanity to look behind his work. "More definite language can not be selected for confining adultery to ilicit intercourse with a married woman, than his fol- lowing definition of the offence. 'Adultery, or criminal conver- sation with a man's wife.' The woman must not be single; she must be another man's wife ; and whoever, married or single, has illicit intercourse with her, becomes guilty of adultery. The text is in 3 Bl. Com. 139, and is so clear of ambiguity as to challenge 'any attempts to evade it. "Let us next see how Buller in Book i,. ch. 6 of his introduc- tion, coincides with the commentaries ; he says : 'The action of adultery liesior the injury done to the husband, in alienating his wife's affections, destroying the comfort he had from her com- pany, and raising children for him to support and provide for.' Bui. N. P. 26. He represents adultery to be an injury to a hus- band, exposing him to have childreia of another man, raised, for him to support, while he lives, and to provide for, at his death. This injury to a husband is made the very gist of adultery. No one will suppose him to mean that the alienation of the wife's affec- tions, and loss of comfort in her company, constitute the offence ; the alienation of her affections might accrue from the malignancy of his own temper, and the loss of comfort in her company, from lunacy ; he does not mean that any malignancy of temper, or that lunacy or any other sickness amounts to adultery; they are only aggravations that may or may not attend the offence; therefore the essence of adultery at the common la\v without which the action 'can not be maintained, is that criminal intercourse with a married woman, which exposes her husband tu support and provide for another man's issue. * * =:= "Let us take up Bacon's Abridgi; i, that famous repository of the common law, wherein he draws ' distinction between for- nication and adultery so clearly as t Imit of no equivocation. DIVORCE. _ . 451 He says : 'Fornication is unlawful, because children are begotten without any care for their education; but adultery goes further, it entails a spurious race on a party for whom he is under no obli- gation to provide.' Bac. Ab. Marriage and Divorce, 569. "This is the circumstance on which adultery depends at the common law ; its tendency to adulterate the issue of an innocent husband, and to turn the inheritance away from his own blood, to that of a stranger. If the woman be single, her incontinence pro- duces none of this evil ; her issue takes away no man's inheritance ; it can be heir to nobody, and the burden of its support is cast by law upon herself and the partner of her guilt. * * * I ^f|{\\ barely add that adultery at the common law, is limited to criminal intercourse with a married woman, both by Swift and Reeve who are among our most eminent American Commentators, and that I am acquainted with no treatise on the common law, English or American, to the contrary. Whether its regulation on this point, was borrowed at some early age, from the Levitical law, which the early dispersion of the Jews carried into various parts of Europe, I am not able to say; but certain it is, that this wide distinction between criminal intercourse with a married woman, and a single woman, is emphatically settled in the Levitical law ; the former being punished with death, while the latter was only a fine. See Levit. eh. 20, verse 10, and Deut. ch. 22, verse 22 to 28." The opinion from which we have extracted was pronounced by Justice Ford. Chief Justice Hornblower added : "I have pre- pared an opinion, which it is unnecessary to read, according with that of Justice Ford. "This question has never before been determined in this State, I believe: although the law has ever since the year 1704, provided a punishment for the offence." Having in the progress of this investigation arrived at the conclusion, as we have before stated, that the Utah divorce was a nullity, it follows that the appellant is still the husband of Maggie Horton Hood ; that his pretended marriage with Jane Chancy was also a nullity, and that his living and cohabiting with her was the living aiid cohabiting of a married man with an unmarried woman, which, as we liave seen, constitutes the offence of fornication, the offence for which appellant is indicted and prosecuted in the cause now before us. We have looked through the proceedings on the trial, and they appear to us to have been conducted with fairness and legal- ity. The instructions of the court stated the law with accuracy, to the jury. 452 LAW OF HUSBAND AND WIFE. It is claimed in the brief of appellant's counsel, that it was not proved that the wife of appellant, whose maiden name was Maggie Horton, was still living. The record discloses that the fact was proved. It shows hat she was present in court, during the trial, and was pointed out to the jury by a witness who knew her as the wife of appellant. It is claimed that the court erred in permitting evidence of a conversation at the clerk's office, in Kentucky, where Hood ob- tained his license to marrry Miss Chaney. The evidence given touching the conversation is not in the record, and it may have been harmless. " It is urged that appellant did not intend to commit a crime. He intended to perform the acts he did perform. He is chargeable with notice of legal consequences. We discover no error in the record. The judgment is affirmed, with costs. 2. CAUSES, a. Adultery. NICHOLS V. NICHOLS, 31 VT. 328. (1858). Libel for divorce from the bonds of matrimony. The cause for divorce was the alleged adultery of the libellee. The libellee, by her guardian ad litem, resisted the libel on the ground that she was insane at the time of the commission of the adulterous acts charged. Redfield, Ch. J. This is libel for divorce a vinculo, for the adultery of the wife. The defence was that she was insane at the time. The court are satisfied of the facts alleged, both ini support and defence of the libel, and are not satisfied that the act com- plained of was done in a lucid interval. The court held that general insanity is a full defence for all acts which by the statute are grounds of granting divorce. In regard to severity and desertion, there could be no question. There is wanting the consenting will, which is indispensable to give the acts the quality, either of severity or desertion. The case is the same in regard to acts of sexual intercourse with one not the hus- band. If done by force, or fraud, no one could pretend that it formed any ground of dissolving the bonds of matrimony. And insanity is even more an excuse, if possible, than either force or DIVORCE. 453 fraud. It not only is not the act of a responsible agent, but in some sense it might fairly be regarded as superinduced by the con- sent or connivance of the husband, since he has the right, and is bound in duty, to restrain the wife, when bereft of reason and the power of self control, from the commission of all unlawful acts, both to herself and others. If the husband, knowing the wife's propensity to self destruc- tion, suffered her to take her own life, he could be regarded as scarcely less than a murderer himself. Sp, too, in regard to the act complained of. It was in the power of the husband always to guard against such consequences. And if he failed in this duty, he surely could not ask the court to visit the consequence of his own misconduct upon the unfortunate being, whom having sworn to love, comfort, honor and keep, in sickness and in health, till death, he had chosen to abandon to the short charity of a pro- verbially heartless world, in the hour of her utmost necessity. And if the case were shown, of those to whose care the hus- band had prudently entrusted his wife, for care or for cure (as he might lawfully do), having betrayed or abused this confidence to purposes of crime on their part, as might possibly occur with- out his fault, he surely could not blame his insane wife for the treachery of his own agents, or their assistants. In insanity it is well known that the subject is liable to such illusions as to mistake utter strangers for the nearest relatives. If, too, they retain only the ordinary stimulus of propensity, at such a time, with no power of self control, they are, of course, at the mercy of every base man. But in many cases sexual propensity is more or less excited during insanity, and the liability to such contin- gencies proportionally increased. In such cases, for the husband to seek for a dissolution of the marriage relation, must argue great weakness or great depravity. We have read the case of Matchin v. Matchin, 6 Barr. 332, and the opinion of the late Chief Justice Gibson, where he attempts to maintain that the adultery of the wife, although insane, is sufficient ground of divorce, for the reason that it tends to impose a spurious offspring upon the husband. The reason is one which will have no application to similar acts committed by the husband, and as applied to the wife, seems truly revolting to all just sense of propriety and decency. We are surprised that such an opinion should ever have found admission into the reports, and, should be shocked at the prospect that it could ever gain gen- eral countenance in the American Republic. 454 LAW OF HUSBAND AND WIFE. A majority of the court are of opinion that the libel must be dismissed. b. Cruelty and Desertion. WARNER V. WARNER, 54 MICH. 492 (1884). Appeal from Van Buren. (Mills, J.) Divorce bill. Complainant appeals. Sherwood, J. The parties in this cause were married in February, 1878. Th^y resided in Van Buren county, and had for many years priof thereto. The complainant was sixty-four years old, a widower, and lived upon his farm near the village of Lawton, with his daughter and an aged mother. The defendant was a widow, fifty-eight years of age, owned a house and several lots in Lawton, but resided in Paw Paw, and kept house there with a minor son nearly of age. The mother of complainant was about ninety years old, could scarcely get about upon crutches, was very gross and insulting in her language and conduct, and in conse- quence of a dislocated hip and other weaknesses and her restless disposition, required much attention and great patience and for- bearance in caring for her. After their marriage the complainant took the defendant to her home upon his farm, he having taken her son into his service there several weeks before. The parties continued to reside together upon complainant's farm until about the 5th or 6th day of March, 1880, when they separated, the de- fendant leaving the complainant, who, on the 28th day of August, 1882, filed his bill against the defendant for divorce, alleging as the ground thereof that defendant had deserted him. The defendant filed her answer to the complainant's bill, denying the desertion, or that she left the complainant without rea- sonable cause. She avers that the complainant is and was, when married, the owner of two good farms, one in the state of New York and the other in this State ; that he represented his property to be worth $10,000; that he was amply able to support them in a respectable manner ; that he would do so ; and that her son should live with them until he chose to go for himself. And defendant further avers that, when she went to live with complainant, she took with her all her beds, bedding, table linen, and furniture, put the same into immediate use in the family of complainant, and con- tinued so to use the same until much of it was worn out, which he refused to replace. She further claims, and the testimony tends DIVORCE. 455 strongly to show, that the complainant promised defendant that he would make repairs upon her house in Lawton, and after the first year would go and live there with her, which he subsetfuently refused to do. The answer further avers that the complainant refused to furnish defendant with suitable clothing and Other necessaries; that during the four years of their marriage he let her have less than eleven dollars for that purpose ; that very soon after their marriage complainant and his mother commenced to ill-treat the defendant and her son ; drove the son away from their house; was in the habit of cursing and swearing at defendant, calling her vile and wicked names, and so cruelly treated her that he threatened her with personal injuries even to the taking of her life; that his abusive conduct was frequently exhibited towards her in the presence of her son and other persons ; that she endured his cruelties and neglects for over two years, and until she found that they were greatly impairing her health, making her life a bur- den, and that there was no hope of reform, and then left the com- plainant ; that, as she left him, with an oath he called her a bitch and told her to go. She further avers that while she lived with him she treated him kindly and in a manner becoming a good wife ; that he never had any cause for his ill-treatment ; that it was solely for the protection of her life and health that she left him ; and that he has never since expressed a wish or desire that she should return and live with him. The testimony was taken in open court, and is voluminous, both parties being sworn in the case. After a patient hearing and careful examination of the testimony. Judge Mills refused to grant a decree of divorce, and dismissed complainant's bill. We think he decided correctly. Separation is not necessarily desertion. The latter may not arise until long after the former has occurred. Reed v. Reed, Wright 224; Ahrenfeldt v. Ahren- feldt, I Hoif. Ch. 47; Clement v. Mattison, 3 Rich. (S. C.) 93; Fellows V. Fellozvs, 31 Me. 342. And when separation and deser- tion occur at the same time, the guilty party is not always the one who leaves the matrimonial home. St. John v. St. John, Wright 211 ; Cossan v. Cossan, Id. 147; 2 Dane's Abr. 308; Bish. Mar. & Div. § 514. Desertion, under the statute, is the wilful abandon- ment of one party by the other without cause, and against the will of the party abandoned, for the period of two years. If the hus- band's conduct is so cruel towards his wife that she cannot live and cohabit with him with safety to her health or without peril to her life, or if she has good reason to believe she cannot, and for 456 LAW OF HUSBAND AND WIFE. such reason she leaves him and abandons his home, she does not' thereby commit the crime of desertion. In such case she does not Ifeave her husband or her home in consequence of any willfulness on her part, but is compelled by the cruelty of her husband, and against her will, so to do. The desertion in such case is upon his part, and not upon hers. He as completely commits the crime of desertion when, by his cruel conversation and conduct, he com- pels her for safety to leave him and his home, as when he willfully and without cause leaves and abandons her. In all such cases the husband is guilty of the crime or misconduct he charges against the wife, and of course cannot have a decree. How. Stat. § 6232.' We have examined the testimony in this case with care, and find very many of the averments contained in the answer sustained by the proofs, particularly those relating to the cruel language and conduct of complainant towards his wife. His parsimoniousness is also quite apparent. The language used by complainant to de- fendant, so far as the record shows, appears to have been without cause or provocation — intolerable among decent people — and clearly, under the decisions of this Court, constituting extreme cruelty. Whitmore v. Whitinore, 49 Mich. 417 ; Palmer v. Palmer, 45 Mich. 150; Briggs v. Briggs, 20 Mich. 34; Bennett v. Bennett, 24 Mich. 482; Goodman v. Goodman, 26 Mich. 417. The defendant, as shown by the testimony, is a sensitive woman of good taste, culture and refinement. To her such lan- guage and treatnient is the worst kind of cruelty. She endured it until it not only destroyed the comfort and happiness of her home, but threatened her health, and there was no hope of change. No rule of law or equity would compel her to remain longer with the complainant, and by leaving him she did not incur the penalty of giving her guilty husband cause for divorce. The circuit court evidently took this view of the case, and I fully agree with Chief Justice Graves in his remarks in the case of Nicholas v. Nicholas, 50 Mich. 162, when he says the appellate tribunal ought to be fully persuaded that it must have reached a different conclusion had it occupied };he position of the court appealed from and been favored with all the advantages of that court for judging rightly, before overruling the decree made. We shall not attempt to give a synopsis of the testimony, nor is it necessary to comment further upon it in disposing of the case. We will say, however, that a review of the evidence and arguments of counsel has only confirmed our conviction of the justice of the decree rendered by the circuit judge, which must be affirmed, with DIVORCE. 457 costs, and in addition thereto the complainant must pay to the defendant the sum of $500, within ninety days after the entry of the order therefor, as alimony pendente lite. The other Justices concurred. 3. EFFECTS. WHEELER V. HOTCHKISS, 10 CONN. 225. (1834). This was an action of trespass qtiare clausum fregit. Mary Wheeler, the plaintiff, was married to William Wheeler, in the year 1800 : and continued to be his lawful wife until August, 1832, when she was, by a decree of the superior court, divorced' from him, for his wilful absence for more than three years. In 1808, the land mentioned in the declaration was conveyed to her, and she became the lawful owner thereof in fee simple. Her hus- band, in her right, immediately entered into possession of the premises, and continued in the occupancy thereof, until the year 1816, when all his right therein was appraised and set off on an execution in favor of Judah Ransom. Soon after the levy, Ran- som entered into the possession and occupancy of the premises, and continued therein, until the isth of June, 1832, when he sold and conveyed, by deed, duly executed, all his right in the prem- ises of the defendant, who immediately entered into the possession thereof. During the coverture, before and after the land was conveyed to the plaintiff, she had issue, by her husband, born alive, who could lawfully inherit the land as her heirs. In August, 1832, after the divorce was granted, and while the defendant was in actual occupancy of the land, the plaintiff entered thereupon, and de- manded of the defendant possession thereof, claiming it as her own; but the defendant refused to quit the land, and continued, to retain the possession thereof, and to occupy it until after the commencement of this suit. A case embracing these facts, was agreed to by the parties, and reserved for the advice of this court, on the question, whether the plaintiff or the defendant was entitled to judgment. Daggett, Ch. J. Two questions have been discussed in this case, which will now be considered. I. Has the plaintiff a title to the land on which the supposed trespass was committed? It was conveyed to her, in 1808, while 458 LAW OP HUSBAND AND WIFE. she was the lawful wife of WilHam Wheeler, by whom she had issue, born alive, before and since the conveyance. His interest in this l?ind by virtue of the coverture, was taken by execution, in favor of one Judah Ransom, who entered into possession and occupied until the 15th of June, 1832; when he sold it to the de- fendant, who has possessed it ever since. Subsequent to all these events, in August, 1832, she obtained, by a decree of the superior court, a divorce a vinculo matrimonii from her husband Williani Wheeler. What is the operation of this decree of divorce upon the rights of thS wife, and of the defendant, who holds by purchase from the execution creditor ? It was decided, by the unanimous opinion of this court, in Starr z: Pease &• al., 8 Conn. Rep. 541, that the right of the hus- band in the land of his wife, being an estate during coverture, is terminated, by a divorce a vinculo matrimonii; and that the rights of creditors to the land dependent on coverture, were thereby afifected and destroyed. On further reflection, I am satisfied with that decision. It must, then, control this case, unless a distinction can be sustained. The counsel for the plaintiff insist on this fact, that in the case of Starr v. Pease & al. it appeared that Lewis, the husband, had no issue by the wife; and in this. case, Wheeler, the husband, had issue, born alive, before and after she became seised of the land ; and hence, they say, that he was tenant by the curtesy initiate. It has its origin, they insist, not simply in the marriage, but in the birth of issue. He may then charge the estate ; make a feoffment; hold against the heir of the wife, after her death; against the remainder-man or reversioner; and even against the king, in the case of attainder. And again his estate is not termi- nated, by abandoning the wife and living with another woman. For these several positions they cite Co. Litt. 30 ; 2 Bla. Com. 127 ; I Rop. on H. & W. 15, 45, 48; I Swift's Dig. 84; Sidney v. Sidney, 3 P. Wms. 276, 7. Be it so, that by these authorities, these positions are sus- tained; still all the authorities concur, that until the death of the wife, he is only tenant by the curtesy initiate, and not consummate. The death of the wife is one of the four essential requisites to con- stitute a tenancy by the curtesy. Now, the wife, Mary Wheeler, is still living, and the founda- tion of the husband's estate is removed, by the dissolution of the marriage. The coverture is dissolved, by the wrong act of the husband. By the authority of adjudged cases, as well as for the soundest reasons, his estate could continvte only during the cover- DIVORCE. 459 ture. 8 Conn. Rep. 545. I am, therefore, satisfied that the right of the wife, which was suspended, during the marriage, is restored, b.y the divorce; and of course, the title to the land is now vested in "her. 2. Can she maintain an action of trespass? That she had no actual pnassession is very apparent. It is a part of the state- ment agreed to by the parties, that the defendant was in posses- sion under the levy of an execution of Judah Ransom, and a pur- chase from him. It is said, she entered and demanded possession ; and it was refused; and that the defendant continued to occupy and possess in opposition to the plaintiff, until after the com- mencement of the suit. Here, then, is an adverse holding of the plaintiff out of possession; and yet an action of trespass is to be sustained, by the person thus ousted and disseised. This cannot be the law relating to trespass. All our elementary treatises in- form us, that possession is essential to maintain the action, even in case of personal property, though ownership generally draws after it the possession. Furniture is leased. The lessee may maintain trespass for an injury to his possession ; but the lessor cannot. His remedy is case for an injury to his reversionary interest. So in case of injury to land, the tenant recovers for irtjury to his possession ; the landlord for damage by waste, in an action on the case, if the freehold is injured. But it is not true, that in every instance of ownership in land, the owner can maintain trespass. He must have the possession, i Chitt. Plead. 175; Lambert v. Stroother, Willes 218, 221 ; Mather v. The Ministers of Trinity Church & al., 3 Serg. & Rawle, 509, 512; 3, 514, & seq. ; Toby v. Reed, 9 Conn. Rep. 217, 223, 4. Wild lands stand on different principles. It is said, however, that the right of property in real estate, in Connecticut, draws to it the possession. Can this be true ? Can 4 creditor, who has levied on the land of his debtor, maintain tres- pass, until he has got into possession? Clearly not. Nor cati a bargainee, although the statute of uses transfers the possession. Com. Dig. tit. Trespass, B. 3. I am, therefore, well satisfied, that this action cannot be sus- tained, though the plaintiff has the right to the land in question. Consequently, judgment must be entered for the defendant. 460 L,AW_OF HOSBAND AND WIPE. •1 HUNT V. THOMPSON, 6i Mo. 148. (1875). WagneRj Judge, delivered the opinion of the court .. Plaintiff brought his action of ejectment in the Jasper Cir- cuit Court to recover the possession of certain lands situated in that county. The cause was taken by change of venue to Pettis county, where a trial was had and judgment was rendered in plaintiflf's favor. The action was originally instituted against John D. Thompson, Lucretia E. Thompson (the appellant here) his wife, and Hugh L. and William A., his sons. John D. Thomp- son made no defense, and the sons answered that they were not in possession, and disclaimed having any interest therein. Lucretia E. admitted that she was in possession of the prem- ises as the wife of John D. Thompson, but denied any unlawful entry, and denied the right of the plaintiff to recover. As a fur- ther defense she set up in her answer that plaintiff claimed title to the premises through a trust deed and sale thereunder, made by her husband, John D., and herself, to one Maxey, as trustee for the plaintiff ; that the deed was fraudulent and void as to lier ; that she was compelled to sign said deed of trust by the coercion and undue influence of her husband, John D., and the plaintiff, and that she never acknowledged the same to have been voluntar- ily executed by her. She further alleged that the officer before whom the acknowledgment purported to have been taken, never examined her separate and apart from her husband, and that his certificate was false, and fraudulently procured by her husband, . John D., and the plaintiff. She then averred that since the com- mencement of this action she had obtained a decree of divorce from her husband, and that the court granting the decree found that she was the innocent and injured party, and that in that suit no alimony was prayed for or allowed, and that her dower in her husband's lands had never been relinquished by nor assigned to her, and she therefore prayed to be discharged. The court, on mot! m, strud out all the new matter set up in the answer as con- stituting no defense. At the trial the plaintiff dismissed as tc the husband, John D., and one of the sons, William A., and a judg- ment of ouster, with damages and monthly rents, was then ren- dered against the other defendants, Lucretia E. and Hugh L., who prosecute this appeal. It is entirely unnecessary to examine the minor points that have been pressed upon our attention in the argument, and but two leading questions which run through the case will be noticed. DIVORCE. 461 The first is the action of the court in striking out that part of Lucretia E.'s answer which claimed dower in the land, on the ground that she had been divorced, notwithstanding that her hus- band still survived; and the second is whether the action was in any event maintainable against her. It is assumed in the argument for the appellant, that the granting of the decree of divorce for the fault of the husband was equivalent to his civil death, and immediately thereafter entitled the wife to an assignment of dower out of his lands, and that the right of possession continued in her till dower was duly set apart. The case of Wood v. Simmons, 20 Mo., 363, is cited as decisive authority upon this point. In that case it was held that upon a sentence of divorce, a wife becomes entitled to all choses in action not previously reduced into possession by the husband, as by survivorship upon the death of the husband. The husband and wife during marriage had conveyed the wife's reversionary interest in certain slaves, and after procuring a divorce, the wife enjoined the assignee from taking possession of them, on the ground that, by survivorship, they, belonged to her for the sup- port of herself and children. Mr. Justice Ryland, in delivering the opinion of the court said : "Here the divorce obtained by the wife from the husband must, in law, be considered the same as the death of the husband ; and the wife must be looked upon as his widow." In the case of Browning v. Headly, 2 Rob. Va., 340, the divorce obtained by the wife from the husband by the legislature of Kentucky, was considered as operating as the civil death- of the husband. Judge Stanard said: "I concur in the opinion of Judge Allen, that the effect of the act of divorce upon the rights of the wife, is to place her in the same position as if her husband had then died. I dismiss therefore, this question, by stating that there is no doubt of the correctness of the judgment below, so far as it considers the divorce of the wife from the husband oper- ating so as to place the wife in the situation she would have occu- pied had her husband then died." The case of Brozvning v. Headly, cited by Judge Ryland, was analogous in its facts to Woods y. Simmons, but it was decided differently, for the reason that the wife's choses in action had been reduced to possession, and it was therefore held that her right of survivorship had been extinguished. These cases, it is evident, were decided without any reference to the statute concerning dower. Where there is' no statutory provision limiting the subject, marriage is by law a 462 LAW OP HUSBAND AND WIFE. gift to the husband of all personal estate of the wife in her pos- session at the time it takes place. But as toi choses in action or mere rights to receive money or property from another, the law only gives the husband a qualified right to them, that is, if he re- duces them to possession dtu-ing coverture, and if he fails to do this, if the wife survives, she will be entitled to them. Where the coverture ceases before death, on account of the guilt of the husband, there is manifest propriety in allowing the wife to sue for and recover the choses. The husband by his act has forfeited them ; they no longer belong to him, and he is dead civilly, so far as the right of action in the wife is concerned. A wife divorced from hur husband can only have' dower in his estate, where it is given by the statute. Three things, viz: marriage, seizin and death of the husband, are requisite to con- summate the right of dower. By the common law no woman can have dower in her husband's lands, unless the coverture con- tinues up to the time of his death. According to the elementary treatises on the subject, the marriage must continue until the husband's death, and the claimant must then be his actual wife, this being essential to constitute her his widow, and it was only the widow that could be endowed. But an absolute decree of divorce annuls and destroys the marriage relation, and hence the maxim ubi nullum matrimonium, ibi nulla dos. In several of the American States a decree of divorce, founded on the misconduct of the husband, is sufficient to entitle the wife to demand her dower in his life-time. By an early statute passed in Massachu- setts, it is provided that where there shall be a divorce for the cause of adultery committed by the husband, the wife shall have dower in his lands in the same manner as if he were dead. By the Maine statute any woman divorced from her husband for his fault, may recover her dower against him or any tenant of the freehold. In Indiana, by the stattite of 1843, 3- divorce granted for the misconduct of the husband entitles the wife to dower in his lands in like manner as if he were dead. In Michigan and Wisconsin, when the marriage is dissolved by the husband being sentenced to imprisonment for life, or when a divorce is decreed for the cause of adultery committed by him, or for his miscon- duct, or on account of his being sentenced to imprisonment for a term of three years or more, the wife is rendered dowable of his lands in the same manner as if he were dead. And in Minnesota and Oregon, when the marriage is dissolved by the husband beirig sentenced to imprisonment, and when a divorce is ordered for the DIVORCE. 463 cause of adultery committed by the husband, the wife is entitled to her dower in like manner as if he Were dead. In all these States dower is allowed to the wife whilst the husband is living, on account of express provisions of their statutes. But the enact- ment in our statute is entirely different. It provides that if any woman be divorced from her husband for the fault or "miscon- duct of the husband, she shall not thereby lose her dower ; but if the husband be divorced from the wife for her fault or miscon- duct she shall not be endowed. Wagn. Stat., 541, § 14. This section changes the common law only so far as to give the wife dower when the marriage relation is disrupted by a decree of divorce for the husband's fault or misconduct. Previously the divorce destroyed her widowhood and de- feated the right of dower. The statute interposed and saved the right, but did not fix any earlier period for its consummation than formerly existed, viz, the death of the husband. Had the legisla- ture when they modified the law so as to save the wife her dower, intended that she should enjoy it sooner than the husband's death, they would certainly have said so, but as they made no such provision we are not authorized in interpolating it into the statute. The necessary result follows, that the defendant, Lu- cretia E., was not entitled to dower whilst her divorced husband still survived. To guard against any hardship in cases of this kind, there should always be a provision for alimony when the wife institutes proceedings for divorce. The next question is, was ejectment maintainable against the defendant, Lucretia E. Thompson. Her answer alleged that she was in possession of the premises as the wife of her husband, John D., who was also a defendant, and the case does not show that she was possessed in any other capacity. It is not shown that any act was done by the wife, except that she, in conjunc- tion with her husband, withheld the possession from the plain- tiff. The common, and ordinary case is exhibited of a husband and wife residing together upon property claimed by another, who, when he brings his action to recover the possession, brings it against both. Under such circumstances we are very clear that the action cannot be maintained against the wife, and no per- sonal judgment can be rendered against her. Her possession is simply the possession of the husband. The case of Meegan v. Gunsollis, 19 Mo., 417, is decisive authority on this question. In that case the plaintifif commenced his action of ejectment against .464 LAW OF HUSBAND AND WIPE. James Gunsollis and Sophia, his wife, to recover possession of land claimed under a deed of trust executed b ythem. The peti- tion alleged that the plaintiff on a certain day was lawfully en- titled to the possession of the land, and that the defendants un- lawfully withheld the possession from him. Process was served upon both defendants, and they demurred to the petition. The demurrer being overruled, an answer was filed in the name of the wife, and although the action was continued in the name of the husband up to trial, no answer was filed by him or in his name, and it appeared that he died after the commencement of the suit, but before trial. The action proceeded against the wife after the death of the husband, and resulted in a judgment against her for the possession of the property, damages and monthly value. On error prosecuted to this court, the judgment was re- versed, and it was held that the wife was not properly made a defendant. When the action in this case was commenced, the wife did not hold the possession in any manner or in any capacity which would authorize the plaintiff to make her a defendant, and for this reason the judgment must be reversed and the cause re- manded. The other judges concur. HOPSON V. FOWLKES, 92 TENN. 697. (1893). McAlister, J. — This is an ejectment bill. Complainants seek to recover a tract of land, consisting of eight hundred acres, situated in Dyer county. Complainant Mary E. Hopson was formerly the wife of one James Wilson, to whom she was mar- ried in 1854, and during said marriage, to wit, on, September 8, 1856, one William M. Shipp, the father of Mary E., conveyed to her and her then husband, James Wilson, jointly, the tract of land in controversy.' The said James Wilson died in November, 1886, and complainants claim that the Iega4 title to said land is vested in the said Mary E. by right of survivorship, the la^d having been owned by her and her then husband, James Wilson, by entireties. It should be stated, in this connection, the said Mary E. was divorced from the said James Wilson on the thir- tieth of October, i860, and on the eighteenth of March, 1861, she intermarried with W. H. Hopson, her present husband. It further appears that, on January 4, i860, the land in con- troversy was attached by creditors of the said James Wilson, and, under proper decrees of the Chancery Court of Dyer county, it DIVORCE. 465 was sold to the defendants, Fpwlkes and Led singer. The ,d«:f end- ants, therefore, claim title to said land as purchasers at that jiidj- cial sale under the decree of the Chancery Court vesting title in them, and by continuous adve;;se possession. Respondents say they ^re, and all the time have been since the date of the confirmation of sale, the owners in fee of .s^id tract of land, holdmg and claiming the same openly against all persons. Respondents plead the statute of limitation of seven years, and they rely on said adverse claim, title, and possession of more than seven years as a complete defense to said action. The Chancellor pronounced a decree in favor of defendants, and complainants have appealed. It appears from the record that the defendant, H. L. Fowlkes, and P. C. Ledsinger, the ancestor of defendant, Gilbert Led- singer, purchased this land at the sale in the case of Ingram and Allen Walker against James Wilson, and that on the twenty- foutrh of January, 1861, a deicree was rendered confirming tlj^e sale, divesting title, and vesting; the same in the purchasers. It further appears that said purchasers went into immediate possession of the land, inclosed it with fences, erected ipiprove- ments thereon, and have remained in continuous and adverse possession of tlie same up to the institution of the present suit, which was commenced on the twelfth of November, 1888 — ^about twenty-six years after the defendants purchased and took pos- session of said land. Under the operation of the first section of the Act of 18 19, Ch. 38, M. & v., § 3459, an adverse possession of seven years under a deed, grant, or other title purporting to convey the fee, not only bars the remedy of the party out of possession, but vests the purchaser with a good and indefeasible title in fee to the land described in his assurance of title. Under the second clause of the first section of said Act, M. & V., § 3460, it is provided, viz. : "And, on the other hand, any person, and those claiming under him, neglecting for the said term of seven years to avail them- selves of the benefit of any title, legal or equitable, by action at law or in equity effectually prosecuted against the person in pos- session, as in the foregoing section, are forever barred." The second section of said Act of 1819, Code, M. & V., § 3461, pro- vides, viz.: "No person, or any one claiming under him, shall have any action, either at law or iij equity, 'for, any lands, tene- ments, or hereditaments, but within seven years after the right of action has accrued." Under the proof in this case, the defend- 466 LAW OF HUSBAND AND WIFE. ants are protected by each and all of the provisions of the statute, unless it appears that the complainant was laboring under some disability that exempted her from its operation. It is insisted on behalf of complainant, Mary E., that the defendants, by virtue of their purchase, only acquired such iii- terest as her former husband, Jame^ Wilson, had in this land, and that the said James Wilson, having died on the eighth of November, 1886, the said Mary E. then became entitled to the whole estate by right of survivorship. It has already been mentioned that the said Mary E. was divorced from her former husband, the said James Wilson, on the thirtieth of October, i860, but her counsel insist that this divorce did not change the nature of her estate in this land, which she still continued to hold by the entirety with the said James Wilson, with the contingent 'right to the whole estate in the event she survived him. It is insisted that her right of pos- session and the devolution of the title did not accrue until the death of the said James Wilson, and that she is not aflEected by the lapse of time, and the statute of limitations. It will be remembered that the decree of divorce was pro- nounced on the thirtieth of October, i860, which was prior to the purchase by the defendants at the chancery sale, which oc- curred on the twenty- fourth of January, 1861. What, then, was the effect of the divorce upon the tenure of complainant's title to this land? . In the case of Harrer v. Wallner, 80 Illinois, 197, the Su- preme Court of Illinois had occasion to consider the question now before us. Judge Walker, in delivering the opinion of the court, said : "Now, this estate by the entireties is peculiar. The posses- sion of one is the possession of both. The estate is joint for life, and descends to or vests in the survivor absolutely, and in fee, and by the destruction of the estate of one it inures to the other. Neither can have partiticii, nor can either sell the estate so as to affect the rights of tiie 01^ er; and when their rights to the prop- erty are invaded, a ^uit f a recovery for the injury or for the property must be joint .because the property and the right to its enjoyment are joint iuni i, coverture." Then, appellee could not sue for and recover any in ^rest in the land, without joining her husband in the action, uiiiil the coverture ceased. It is unlike tenants in common, where either may sue and recover for an m- jury to the property, and may use the names of his co-tenants." What effect, then, d' ' the granting of the divorce have on DIVORCE. 467 I this estate, or the rights of the parties therein? The relation of husband and wife was thereby terminated, and with it all marital duties. Their interest and duties from thenceforth, as related to each other, were as though they never existed. The estate by the entireties is essentially a joint estate, although it differs in one or two particulars therefrom. The power to hold jointly arose from the fact that they were married when the conveyance was made. Had the marriage not existed, the parties would have taken as tenants in common. It was that circumstance, and that alone, which gave to them the joint life estate and the right to joint possession. When the very thing which, by operation of law, gave them a joint estate was destroyed, by operation of the same law the joint estate ceased, and they then became vested with an estate per my as tenants in common. They, by that act, and operation of law flow- ing from it, are not jointly entitled to possession, but, the unity of title and the imity of estate no longer existing with the incidental right of joint possession, it inevitably follows that they then be- came tenants in common. The termination of the marriage rela- tion having wrought a change in the rights of the parties in the estate, the courts should rather hold that the change is broad enough to convert it into an estate in common, than to hold that, whatever change was made, it left the right of survivorship. But, on principle, we are satisfied that the decree of divorce had the effect to make them tenants in common, and that appel- lee thereby becomes entitled to partition. See also Bishop on Marriage and Divorce, Sec. 716;' Free- man on Co-tenancy and Partition, Sec. 76. We are not without authority on the question in this State. In the case of Ames v. Norman, 4 Sneed, 682, it appeared that Ames and wife were seized of an estate in the land by en- tireties. Said land was sold at execution sale, in satisfaction of judgment against the husband, and the defendant, Norman, as a creditor of Ames, afterwards redeemed the land from the pur- chaser at said sale. After Norman's rights had become vested, the wife of Ames, the original judgment debtor, procured a di- vorce, and the question was whether the interest or title of the purchaser at execution sale was subject to be divested, or in any way affected, by a subsequent divorce a vinculo matrimonii to the wife. It was held that the subsequent divorce had no effect what- ever upon the rights of such purchaser. It was held that the defendant, by his purchase, became invested with the right of the 468 LAW OF HUSBAND AND WIFE. husband as it existed at the time of the sale — ^that is, a right to occupy and fen joy the profits of the land, as owner, during the joint lives of the husband and wife, subject to the contingency that if the complainant survives her former husband his estate will then terminate, but, if the husband survives, he will become ab- solute owner of the whole estate." The case at bar is to be differentiated from the case of Ames V. Norman in this important particular, that in the pres- ent case it appears that the wife was divorced prior to the date of defendant's purchase and possession. At that date the wife's status was that of a feme sole, and her estate in this land had, by operation of law, been changed from one by the entirety to a tenancy in common. That Judge McKinney, who delivered the opinion of the court in Ames v. Norman, recognized this distinc- tion is apparent from the following language. We quote from his opinioln, viz. : "As one of the necessary results of the unity of person in husband and wife, it has always been held that where on estate is conveyed or devised to them jointly, they do not take in joint tenancy. Constituting one legal person, they cannot be vested with separate or separable interests. They are said, therefore, to take by entireties ; that is, each of them is seized of the whole estate, and neither of a part. If the rights of husband and wife in relation to an estate held by entireties are not altered by the decree declaring the divorce, what becomes of the joint estate? What are their respective rights in the future in regard to it? They (are no longer one legal person; the law itself has made them twain. They are no longer capable of holdirig by ehtireties ; the relation upon which that tenancy depends has been destroyed. The one legal person has been resolved, by judgment of law, into two distinct individual persons, having in the future no relation to each other ; and with this change of their relation must neces- sarily follow a corresponding change of the tenancy dependent upon the previous relation. As they cannot longer hold by a joint seizin, they must hold by moieties. The law, in destroying the unity of person between them, has, by necessary consequence, destroyed the unity of seizin in respect to their joint estate, for, independent of the matrimonial union, this tenancy cannot exist." We think these principles are conclusive of this case. The decree of divorce, while it severed the unity of person of James and Mary E. Wilson, also severed their unity of estate in this land, making them tenants in common. That decree also re- DIYORCE. 469 moved the disability of Mary E. as a married woman, and left her free to institute proceedings for a partition of this land, or other- wise to assert her rights therein. She neglected to take any steps, and the bar of the statute was complete when the present suit was instituted. It may be remarked, in conclusion, that the whole groundwork of complainant's bill is based upon the assumption that complainant, Mary E., was not a party to the original at- tachment suit, and had no notice of those proceedings. This assumption is earnestly controverted by the defendants. We do not .however, decide that question, as. it is wholly immaterial, the title of Mrs. Hopson having been extinguished and her remedy barred by operation of the statute. The decree of the Chancellor is affirmed. 4. DEFENSES, a. Connivance. ROBBINS V. ROBBINS, 140 MASS. 528. (1886). Libel for divorce, on the ground of adultery. Hearing be- fore Holmes, J., who found that the libellee committed adultery on September 19, 1883, and on the question of the libellant's con- nivance thereat reported the case for the consideration of the full court, as follows : "On the day before the adultery was committed, the libellant, having begun to suspect his wife in connection with a man then lodging in- his house, requested his son in Boston to telegraph for him to come to Boston the next day, if he did not come to town in the morning. The next day the telegram arrived; the libellant informed the libellee of its arrival, that he must go to Boston, and that he should probably not return that night, and that, if he did, he should not return till late ; but, in pursuance of an interview with counsel, he secretly made arrangements to be driven to his house about half-past eight o'clock that evening. By reason of the libellant's necessary visits to Boston, and otherwise, frequent opportunities for adultery existed, but this particular one would not have existed except for the scheme as stated herein. The usual h®ur of going to bed was about nine. Between half-past eight and nine, the libellant drove with a witness to his house, as he had arranged. He arrived before the lights down stairs were put out, and stopped for a moment, and then drove round a square, 470 LAW OF HUSBAND AND WIFE. taking about five or six minutes, and then came back. At about nine the Hghts down stairs were put out ; shortly after, that in the libelee's room was extinguished ; and, from what was seen in the lodger's room, the libellant was led to suppose that the libellee had entered it. He then at once entered the house, secretly, with the witness, went up stairs, and found the libellee and the above-men- tioned lodger in bed. "The foregoing conduct of the libellant constituted a scheme to detect the libellee if she was guilty, but there was no corrupt intent that adultery should be committed, or any assent to or con- nivance at it, unless the foregoing conduct amounted to conni- vance, as matter of law, which I ruled it did not, and ordered a decree of divorce to be entered." The decree was to stand, or the libel to be dismissed, accord- ing to the decision of the court upon this point. C. Cowley, for the libellee. /. N. Marshall, for the libellant. Field, J. The justice who heard the case found as a fact that the conduct of the libellant, described in the report, constituted a scheme to detect the libellee, if she was guilty, but that there was no corrupt intent that adultery should be committed, or any assent to or connivance at it, unless the conduct of the libellant amounted .to connivance as matter of law, which he ruled it did not. It is not found by whom the man who lodged in the house was invited to lodge there, or that he was of bad reputation, or was introduced by the husband to the wife, or that lodging there under the cir- cumstances made him a member of the family, or what the con- duct of the wife with him was which excited the suspicions of the husband ; and it is impossible to hold that, on the facts found, it was so far the duty of the husband to expel the lodger, that, by not doing this, he must be held, as matter of law, to have connived at the adultery. This court has assumed that the legislature, in conferring upon it jurisdiction to grant divorces from the bond of matrimony, although the statutes make no provision respecting connivance, collusion, condonation, or recrimination, intended to adopt the general principles which had governed the ecclesiastical courts of England in granting divorces from bed and board, so far as these principles are applicable, and are found to be reasonable. Although the procedure may be "according to the course of proceeding in ecclesiastical courts," Pub. Sts. c. ^146, § 33, yet it is not clear that the decisions of those courts upon questions of substantive law are DIVORCE. 471 of the same weight here as are the decisions of the EngHsh courts of law and chancery. One reason is, that the ecclesiastical courts proceeded according to the canon law, as allowed ind adopted in England, but the canon law was never adopted by the colonists of Massachusetts ; it was not suited to their opinions or condition. Marriage and divorce here have always been regulated wholly by statute. Commonwealth v. Munson,- 127 Mass. 459; Sparhawk V. Sparhawk, 116 Mass. 315. By the St. of 20 & 21 Vict.,c. 85, a court for divorce and matrimonial causes was established in England, and jurisdiction given it to decree a dissolution of marriage ; and it was expressly provided that, if the court should find that the petitioner had, during the marriage, heen accessory to, or conniving at, the adul- tery, or had condoned the adultery complained of, or that the peti- tion was presented or prosecuted in collusion with either of the respondents, the petition should be dismissed. § 30. By § 31, it was also provided that, if the court found that the case of the petitioner was proved, and did not find either connivance, collu- sion, or condonation, the court should not be bound to pronounce a decree, if it should find certain other facts concerning the libel- lant, of which one was "such wilful neglect or misconduct as has conduced to the adultery." It is obvious that decisions under this statute may turn upon its provisions, and not upon general prin- ciples applicable to the law of divorce. It was, partially at least, upon the construction of this statute that Gipps v. Gipps, 11 H. L. Cas. 1, was decided. It is not easy to reconcile all the decisions of the ecclesiastical courts upon connivance; the law and facts are not always sepa- rated ; and those courts have considered questions of morals some- what more freely than we, under our statutes, feel at liberty to do. Many of the cases are collected in Phillips v. Phillips, i Rob. Eccl. 144; 3 Notes of Cases, 444; 4 Notes of Cases, 523; 5 Notes of Cases, 435 ; and it is there held that a corrupt intention is neces- sary to constitute connivance. The reasonable foundation of the rule, that connivance prevents the libellant from maintaining his libel for adultery, is that he has consented to the adultery, although it may be by a consent unexpressed and unknown to the libellee. This consent must necessarily often be inferred from circum- stances, but the fact must be found that the libellant either desired and intended, or at least was willing, that the libellee should com- mit adultery, before the libellant can be said to have connived at it. There is a manifest distinction between the desice and intent of 472 LAW OF HUSBAND AND WIFE. i husband that his wife, whom he believes to be chaste, shottid commit adultery, and his desire and intent to obtain evidence £lg;ainst his wife, whom he believes already to have cornmitted adultery, and to persist in her adulterous practices whenever she has opportunity. It was argued that it was the duty of the husband to protect his wife, arid to control her conduct if it excited suspicions; and undoubtedly husband and wife ought naturally to aid each other ih doing right, and to guard each other from doing wrong. But the legal duty of the husband to control the conduct of his wife cdhnot be greater than his legal right; arid, by modern law and usage, the fight of a husband to control the conduct of his wife has largely, if not Whblly, disappeared. A husband cannot impris- on his wife in of der to protect her against seduction, nor is he com- pelled alwSys to attend her, or to remain at home with her. A chaste husband ought, if he desires it, to have a wife who will ferhain ehdste when exposed to the temptations which are incident to the ordinary conditions of modern social life ; and, if she cortl- riiits adultery against his wishes, and without his procurement, he ought to be permitted to obtain evidence of it; Mdrrisoii v. Morrison, 136 Mass. 310, was decided upon the ground that the justice who heard the cause found, as a fact, that the husband, from the time that his suspicions were first excited, was in his mind willing that his wife should commit adultery, pro- vided that he could thereby obtain a divorce, and that this finding, together with the evidence of his conduct towards his wife and suspected parathoiir, was sufficient to warrant the finding of con- nivance. The Only cases there cited are those which hold that a corrupt intent is riecessary to constitute connivance. Decree affirmed. b Collusion. HOPKINS V. HOPKINS, 39 WIS. 167. (1875). Appeal from the Circuit Court for Dodge County. This was an action for divorce brought by the wife against the husband, in which judgment was had by. default. Defendant made two several motions to set aside or modify the judgment as to the custody of the children, and on the ground of excessive ali- mony. The facts are stated in the opinion. Both motions were denied ; and the present appeal is from the second motion, dated April 23, 1875. DIVORCE. 473 Cole, J. The moving papers used in support of the second rule to show cause why the judgment of divorce should not be vacated, or modified in certain particulars, present, as it seems to us, no case for setting aside the judgment. It is claimed that the affidavits show that the judgment was obtained in pursuance of a collusive agreement, or by fraud and imposition practiced upon the defendant. But this position is clearly not sustained by any- thing found in the record. It is true, the defendant states in sub- stance, in his affidavit, that at the time the action was commenced, he was sick and unable to attend to business ; that he put in no an- swer and entered no appearance in the cause ; that he saw the attor- ney of the plaintiff by the appointment of such attorney, and entered into an agreement with him concerning the suit and the amount of alimony which was to be paid the plaintiff upon the divorce being granted, and also in respect to what articles of personal property or household furniture the plaintiff should receive; and that he then agreed not to oppose the granting of a divorce. But all this it flatly contradicted by the plaintiff in her affidavit, who positively denies that she ever made any agreement or had any understanding with the defendant of any kind- in reference to the suit, or in respect to the amount of alimony which she was to receive, or in regard to the custody of the children ; and she ex- pressly denies that she ever authorized her attorney or any other person to make any agreement or to have any understanding con- cerning the action, except as stated by her in a subsequent part of her affidavit, which is not material on this point. The burden of proving the fraud or collusive agreement was upon the defendant ; and it is certainly impossible to say that he has established the fact that he was in any wise imposed upon, or that any collusive agreement was entered into in respect to the divorce. We are therefore relieved from considering the question whether an agree- ment not to oppose the granting of a divorce, and to pay a stipu- lated sum for alimony, would amount to a fraud upon the law, and constitute a sufficient ground for setting aside the divorce. It is sufficient to say that no such case has been established by the evidence; nor have any circumstances been shown from which fraud in respect to the divorce can be inferred. As a matter of course, a collusive agreement between the parties to procure a divorce when no breach of matrimonial duty had been committed, would be a fraud upon the court and could not be sanctioned. But that is not the case before us ; and therefore the application to set aside th;e judgment may be dismissed with the remark that no reason whatever was shown for granting that relief. 474 LAW OF HUSBAND AND WIFE. The original judgment of divorce was, however, modified in some of its provisions. The court ordered that the custody of the boy, Emery E. Hopkins, which was awarded the plaintiff, should be given to the defendant. No complaint is made of this modification of the judgment. The court further ordered that the custody of the daughter, Rosa Ann Hopkins, which had been originally given to the plaintiff, should be taken from both parents and awarded to Andrew Willard, who was appointed her guardian for a year, and was entrusted with the care and control of her person, and with her education and support, under the direction of the court ; and the defendant was ordered to pay the guardian $250 a year for the support and education of the daughter. It seems to us the court had no authority, in this action for divorce, thus to take the custody and control of a child from both parents and give it to a stranger. The statute provides that the court, upon adjudging a divorce, may make such further judgment as it shall deem just and proper concerning the care, custody and mainten- ance of the minor children of the parties, and may determine with which of the parties the children, or any of them, shall remain, having due regard to the age and sex of such children. Sec. 19, ch. Ill, R. S. The court is authorized, on the petition of either of the parties, to revise and alter such judgment concerning the care, custody and maintenance of the children, or any of them, and make a new judgment concerning the same, as the circum- stances of the parents and the benefit of the children shall require. Sec. 20. The statute evidently contemplates that the care and custody of the children shall be awarded to one or both of the parents, due regard being had to the age and sex of the children, and to the character, occupation and circumstances of the parent or parents. Welch v. Welch, 33 Wis. 534. It is a general prin- ciple of the law of divorce in this country, that the courts, either of law or equity, possess no powers except such as are conferred by statute ; and therefore authority for the action of the court in that class of cases must be found in the statute, and cannot be looked for elsewhere. Barker v. Dayton, 28 Wis. 367. In a pro- ceeding for the appointment of a chancery or probate guardian, where the statutory or general jurisdiction of the court is invoked, it may be competent for the court to take the care and custody of an infant from either or both of the parents, and award it to a third person ; and this is sometimes done when the welfare of the child will thereby be subserved. But that is a different proceed- ing, calling into exercise larger power and discretion than the DIVORCE. 475 proceeding before us. Here the power and discretion of the court to award the care and custody of the children are limited to the parents ; and to one or the other should the custody of Rosa Ann Hopkins have been given. We are unable to say, upon the evi- dehce before us, that either parent is unfit to be entrusted with that charge ; but this matter will be remitted to the circuit court for the exercise of its discretion in view of all the circumstances. If the care and custody of the daughter shall be awarded to the mother, then the defendant should be ordered to pay the plaintiff 'such a sum for her support as may seem just and proper. The court likewise modified the judgment in respect to the household furniture and other articles awarded the plamtiff. No serious complaint is made of the judgment as it now stands in that regard, and we are inclined to think it is right. The court awarded the plaintiff $3,000 alimony, which we consider an undue proportion of the husband's estate. The defendant has made a statement of the property which he owned when the suit was com- menced and the judgment entered, and has affixed to it a valuation which amounts in the aggregate to the sum of $7,575. The de- cided weight of testimony tends to shaw that this is a fair valua- tion of his property, and the income or profits of his business seems to be small and rather uncertain. In view of these facts we think the sum of $2,000 is all the defendant should be required to pay for alimony. This is about the proportion of the husband's estate which this court has awarded, so far as any rule can be deduced from the cases decided. Cole v. Cole, 27 Wis. 531 ; Moul v. Moul, 30 Id. 203 ; Williams v. Williams, 36 Id. 362. The defendant will be required to pay the costs of these appeals in this court, and also the costs in the court below. The payment of the $2,000 alimony can be ordered and arranged by the court so as not to be unduly burdensome upon the defendant. The counsel for the plaintiff lays stress upon the fact that the defendant had offered to pay $3,000 as alimony, and insists that he should be held to his offer. But under the circumstances we do not feel inclined to attach much importance to the proposi- tion. The evidence shows what the defendant is worth, and his ability to earn money, and upon that evidence alimony is awarded. It follows from these views that the order of April 23, 1875, must be reversed, and the cause must be remanded to the circuit court, with directions to modify the original judgment of divorce so as to conform to this opinion. 476 LAW OF HUSBAND AND WIFE, c. Condonation. SULLIVAN V. SULLIVAN, 34 IND. 368. (1870). Appeal from the Madison Common Pleas. Downey, J. — This was a petition for a divorce on the grounds of cruel treatment and failure to provide, filed by the appellee against the appellant. It alleges, that after their mar- riage the parties lived together unpleasantly and disagreeably un- til May, 1867, when she, left him and remained away for a period of six months, at the end of which time, in consequence of his solemn promises to treat her well and kindly, she returned ; that he kept his pledge, "by the greatest effort," for about one month. The acts of cruel treatment are alleged to have taken place after this time, as also the failure to provide. After several steps in the case, concerning which there is no complaint, the defendant moved the court for a change of venue, upon an affidavit stating that he believed that he could not have a fair and impartial trial of said cause on account of an undue influence which the plaintiff had over the defendant in the cause, and he asks, &c. The court refused to grant a change of the venue. This was right. The affidavit showed no reason known to the statute for a change of venue, There was a trial by the court, and finding and judgment for the plaintiff, for a divorce, three hundred dollars of alimony, and the custody of one of the children, the custody of the other one being given to him. Motion for a new trial overruled, and the evidence put in the record by a bilLof exceptions. The appellee contends that this court will not, in any case, reverse a judgment granting a divorce, and refers to 2 G. & H. 349, sec. 7 ; McFunkin v. McFunkin, 3 Ind. 30 ; Ewing v. Eiving, 24 Ind. 468. But counsel are mistaken in supposing that the authorities referred to have any application to cases on appeal to this court from a judgment granting a divorce. This court has repeatedly reversed cases on appeal where a divorce had been granted. The defendant contends that the court committed an error in admitting evidence, over his objection, of acts of cruel treat- ment which took place prior to the reconciliation mentioned in the petition. He contends that there was a condonation as to all of such acts, and that the court should not have received evidence of them. DIVOEM3B. 477 The petitioner, thereupon, insists that the doctrine of condon- ation applies exclusively to the offense of adultery, and does not apply to cruel treatment. We have examined some of the authorities on the question, and are Siatisfied that the doctrine applies to cruel treatment as well as to adultery. 2 Bishop Marriage and Divorce, § 50. Condonation is defined to be the forgiveness, either express or implied, by a husband of his wife, or by a wife of her hus- band, for a breach of marital duty, as adultery, with an implied conditioa that the offense shall not be repeated. Webster's Dic- tionary. With reference to the condition, Bouvier, in his Law Dictionary, says : "Every implied condonation is :upGn the implied condition that the party forgiven will abstain from the commis- sion of the like offense thereafter, and also treat the forgiving party, in all respects, with conjugal kindness. Such, at least, is the better opinion; though the latter branch of the proposition has given rise to much discussion. It is not necessary, there- fore, that the subsequent injury be of the same kind, or proved with the same clearness, or .sufficient of itself, when proved, to warrant a divorce or separation." While the condition remains unbroken, condonation, on whatever motive it proceeded, is an absolute bar to the remedy for the particular injury condoned. 2 Bishop on Marriage and Divorce, § 33. ' It wUl ;be seen that an important element in the definition is the condition on which the remission or forgiveness is granted. It is upon the condition subsequent that the offense shall not be repeated, and that the forgiven party will treat the other with kindness. If the condition had been violated in this case, as alleged in the petition, then, it seems to us, that it was proper to allow the wife to give evidence of the acts of cruel treatment be- fore as well as after the condonation, for, as we have seen, it was not necessary that the acts occurring afterwards should, of them- selves, independent of those occurring before, constitute a cause for a divorce. Had the case proceeded in a different, and perhaps a more usual and natural way, the petition would have alleged the cruel treatment, &c., the defendant would have pleaded the condonation in defense, and the petitioner would have replied the subsequent acts as a violation of the implied condition on which the condon- ation took place. It is decided by this court, in Lewis v. Lewis, 9 Ind. 105, that condonation must be specially pleaded. But that 478 LAW OP HUSBAND AND WIFE. rule cannot apply to a case like this where the petitioner sets up the condonation, and then also alleges the violation of its condi- tion. As will be seen by referring to the petition, she alleges the living together after their marriage, their separation, their recon- ciliation and living together again, and then the subsequent acts of misconduct on his part. In such a case, it is not necessary for the defendant to plead the condonation in order to have the ben- efit of it. As the pleadings stood, the court committed no error in hearing the evidence to which objection was made. Again, the defendant complains of the admission of certain evidence of statements made by his wife, in his absence, tending to show a failure on his part to provide for his family. But we need not decide this point, for the reason that all the evidence fails to show that the defendant did fail to provide for his fam- ily. If there were no other cause alleged for a divorce than his failure to provide, the case, on the evidence, would be clearly with the defendant. " Upon the question of cruel treatment, we think the evidence was sufficient to justify the finding of the court. It is true that most of the acts of cruel treatment took place prior to the con- donation, but there were acts occurring afterwards sufficient to revive the right to sue for those which occurred befor*. Among other facts, one witness swore that he "saw her come out of the back door of his house, and his foot was after her." The court may have inferred from this that she was forcibly expelled from the house. Judgment is affirmed with costs. d. Recrimination. PEASE V. PEASE, 72 WIS. 136. (1888). Cole, C. J. The plaintiff and appellant brought this action for a divorce from the bonds of matrimony on the ground of adul- tery committed by the defendant. The wife denied the charge of adultery in her answer, and by way of recrimination, defense, or bar to plaintiff's action, asked for a limited divorce from the husband on the ground of cruel and inhuman treatment on his part. On the trial of the issue of adultery the jury found against the defendant; and the court found the plaintiff guilty of cruel and inhuman treatment of the defendant, and held that neither party was entitled to a decree of divorce. The sole question before us on this appeal is the correctness of this decision. DCVCECE. 479 Our statute makes adultery and cruel and inhuman treatment of the wife by the husband equally grounds of divorce. Sec. 2356, R. S. The statute places them upon the same ground, attended by the same legal consequences. The cruelty complained of and proven consisted of acts of personal violence on the part of-iifhe husband ; his striking her in one instance a severe blow in the face with his fist while she was lying in bed, which blow caused a wound that bled freely, and left a bruise for several days upon the face. The circuit court also found other instances proven of vio- lent conduct on the plaintiff's part towards his wife, which in some cases were mitigated to some extent by her improper and exas- perating behavior. The evidence is not before us, but we must presume it fully sustained the finding of the court on the facts. So, the simple question presented is, Where it is shown that each party has been guilty of an oiifense which the statute has made a ground for divorce in favor of the other, will the court interfere and grant relief to either offending party? We do not perceive upon what logical principle the court could grant redress to the husband for the adultery of the wife when he himself has been guilty of an offense which would give her a right to an absolute divorce were she without fault. Both parties have violated the marriage contract, and can the court look with more favor upon the breach of one than the other? It is an unquestioned prin- ciple that where one party is shown to have been guilty of adul- tery such party cannot have a divorce for the adultery committed by the other. Smith v. Smith, 19 Wis. 522. Mr. Bishop says there is an entire concurrence of judicial opinion upon that point both in England and in this country, and that it makes no differ- ence which was the earlier offense ; nor even that the plaintiff's act followed a separation which took place on the discovery of the adultery of the defendant. 2 Bish. Mar. & Div. § 80. In the forum of conscience, adultery by the wife may be regarded as a more heinous violation of social duty than cruelty by the husband. But the statute treats them as of the same nature and same grade of delinquency. It is true, the cruelty of the husband does not justify the adultery of the wife ; neither would his own adultery,— but still the latter has ever been held a bar. And where both adul- tery and cruelty are made equal offenses, attended with the same legal consequences, how can the court, in the mutual controversy, discriminate between the two, and give one the preference over the other? It seems to us that, as the law has given the same effect to the one offense as the other, the court should not attempt to 480 LAW OF HUSBAND AND WIFE. distinguish between them, but treat them alike and hold one a bar to the other. The following authorities enforce this view of the law where the divorce law is like our own: Hall v. Hall,. 4 Allen.- 39; Handy v. Handy, 124 Mass. 394; Nagel v. Nagel, 12 Mo. 53; Sha^fitt V. Shackett, 49 Vt. 195 ; Conant v. Conant, 10 Cal. 249; 2 Ris^. Mar. & Div. §§ 78-87. See, also, Adams v. 'Adams, 17 N. 5^Eq. 325 ; Ycatman v. Yeatman, L. R. i Prob. & Div. 489 ; Lemprierc v. Lempriere, Id. 569. We therefore think the circuit court was right in holding upon the facts that neither party was entitled to a divorce, because each was guilty of an offense to which the law attached the same legal consequences. But the plaintiff's counsel contends that under sec. 2360, R. S., which provides that m an action for divorce on the ground of adultery, although the fact of adultery be established, the court may deny a divorce ( i ) when the offense shall appear to have been committed by the procurement or with the connivance of the plaintiff; (2) where the adultery charged shall have been forgiven by the injured party, and such forgiveness be proved by express proof or by the voluntary cohabitation of the parties with knowl- edge of the offense; (3) When there shall have been no express forgiveness and voluntary cohabitation of the parties, but the action shall not have been brought within three years after the discovery by the plaintiff of the offense charged. The adultery, he says, was found in this case, but none of the facts set forth in the above three subdivisions were found to exist, therefore the divorce should have been granted. This provision is declaratory of the common law, and gives the trial court discretion to refuse a divorce for adultery where certain things were proven or shown to exist. It might bb claimed, in view of the statutory provisions, that the court had no discretion in the matter where the adultery was established, but was absoltitely bound to grant the divorce, though there had been connivance of the parties, or condonation, or the injured party had unduly delayed bringing the action after a discovery of the offense. To remove all doubt upon that point the provision was enacted. It was not intended to do away with the general principle that one cannot have redress for a breach of the marriage contract which he has violated by committing a like offense as that of which he complains, but must come into court with clean hands. This principle still pervades our law, and must be recognized. From these views it follows that the judgment of the circuit court must be affirmed. INDEX, ACTION : personal property of wife in, 199-205. ADMINISTRATION : husband's rigfit of, 301-306. ADMINISTRATOR: (See Administration.) ADULTERY: as a ground for divorce. 452-454. AFFINITY ■ as afifecting marriage, 28-31. AGENCY : as created by marriage, 163-191. AGENT : wife as husband's, 163-191. ALIMONY : power of court to grant,. 49-55. ANTENUPTIAL DEBTS : liability of husband for, 163-191 ANTENUPTIAL SETTLEMENTS : force of, 292-297. BASTARD : status of, 31, 32, 33, 34. CELEBRATION : of marriage,g2-io8. CHATTELS REAL: wife's, 216-221. CHILD: marriage of, 59-62. CHOSES: effect of marriage upon, 123-138 48S INDEX. CIVIL CONDITION : effect on marriage, 30-36. COLLUSION : as a defense to divorce, 472-475. CONDONATION: as a defense to divorce, 476-478. CONFLICT OF LAWS : as affecting marriage, 35, 36, 103, 104. CONNIVANCE: as defense to divorce, 469-472. CONSANGUINITY: as affecting marriage, 28-31. CONSENT : as an essential of marriage, 92-108. kinds of, 93-108. CONTRACT : marriage as, 22. 23. 24. of marriage, effect of, 33, 34, iii, 112. wife's, 163-191. dower in, 419-423. COURT: power of appellate, to grant alimony, 49-55. COVERTURE : effect of, on crimes, 156-163. CRIMES : of married women, 156-163. CRUELTY : as a ground for divorce, 454-457. CURTESY: right of husband toy ,301-306. DEATH : effect of, on wife's debts, 186-191. DEBTS : wife's, 163-191. husband's liability for wife's, 163-191. effect of death on wife's, 186-191. INDEX. 483 DEFENSES: to divorce, 469-480. DESERTION : as a ground for divorce, 454-457. DISABILITIES : civil, 28-31. canonical, 28, 29. ,-51. phj'sical, 55-59- mental, 36-55. DIVORCE : power of legislature to grant, 13-22. jurisdiction, to grant, 443-452. causes of. 452-457. cruelty, and desertion, as grounds of, 454-457. adultery, as a ground of, 452-454. effects of, 457-464 et seq. DOMICIL: matrimonial. 138-145. DOWER : defined, 310-315. requisites of, 315-320, et seq. barrment of, by statute of limitations, 322. seizin in, 323, 324, .325-330. death of husband, as affecting, 327-330. nature of the estate, in, 331-343. what law governs, 343-349- to what estates, attaches, 349-373. in remainder and reversion, 373, 374. in joint tenancy, 375. in estates in common, 376 et seq. in mines, 390-397. in lands taken by eminent doma'n, 398-400. in exchange. 400-402. in wild lands. 402-408. in mortgage, 408-411. in partnership, 411-419. ' in contracts, 419-423. in preemption claims, 423-425. in trust estates, 426-429. how barred. 429-431. how assigned. 432 et seq. in homestead, 4.38-442. defenses to, 469-480. DRUNKENNESS : • effect on marriage, 46-55. EARNINGS : of wife, 287-291. 484 INDEX. ECCLESIASTICAL COURTS: jurisdiction of, over divorce, ig. EMINENT DOMAIN : dower in lands talcen by, 398-400. ENTIRETY : estate of, 130, 131, 132-138. EQUITY : wife's, 205-216. marriage modiiied by, 228-252. separate estate of wife in, 283-286. ERROR : effect of, on marriage, 69-91. ESSENTIALS: of marriage, 28-108. ESTATE : wife's separate, 283-286. to what, dower attaches, 349-373. ESTATE IN COMMON :. dower in, 376 et seq. EXCHANGE: dower in, 400-402. FORCE : effect of, on marriage, 69-91. FRAUD : effect of, on marriage, 69-91. of wife, 191-197. HOMESTEAD: dower in,' 438-442. HUSBAND : rights of, under theoretic unity, 123-138. right of, to sue third persons, 145-151. rights and liabilities of surviving, 301-306 right of, to administration, 301-306. death of, as affecting dower, 327-330. HUSBAND AND WIFE: ^ nature of the relation, 13-27. right of society of, 145-151, 156. INDEX. 485 IMPOTENCE : as affecting marriage, 55-59. IMPOTENCY : effect of, on marriage, 55-59. INDIANS: marriage between, 34-36. INFANCY : as affecting marriage, 59-62. INJURIES : of wife, 191-197. INSANE PERSONS: marriage of, 36-48. INSANITY : effect on marriage, 36-48. JOINT TENANCY: dower in, 375. JURISDICTION : to grant divorce, 443-452. MARRIAGE : as a contract, 23-27, 37. as a status, 25. essentials of, 28-108. relationship as affecting, 28-31. of a slave, 30-34. contract of, effect of, 33, 34. between Indians, 34-36. validity of, 35, 36. mental capacity required for, 36-48. effect of drunkenness on, 46-55. physical capacity required in, 55-59. between infants, 59-62. effect of prior, 62-69. consent as an element of, 67, 68, 92-108. effect of force, fraud, or error upon, 69-^1. celebration of, 92-108. kinds of consent. 92-108. polygamous, 105, 106. promise of, 109-121. conduct, as a promise of, 117. effect of, on person of spouse, 122-138. theoretic unity under, 123-138. effect of, on crimes, 156-163. modified by equity, 228-252. modified by married women's acts, 252-282. 486 INDEX. MARRIED WOMEN'S ACTS : marriage modified by, 252-282. MENTAL CAPACITY : wliat required in marriage, 36-48. MINES : dower in, 390-397. MORTGAGE: dower in, 408-411. NECESSARIES : power of wife to pledge husband's credit for, 163-191. PARAPHERNALIA : of wife, 307-309. PARTNERSHIP : dower in, 411-419. PERSONAL PROPERTY: (See Property.) of wife under theoretic unity, 123-138. , of wife in possession and in action, 197-205. PHYSICAL CAPACITY: what required in marriage, 55-59. POSSESSION: personal property of wife in, 197-198. POSTNUPTIAL SETTLEMENTS : effect of, 298-300. PRE-EMPTION CLAIMS: dower in, 423-425. PROMISES: of marriage, 109-121. conduct as, "117. PROPERTY : of wife, 197-227. personal, of wife in possession, 197-198. personal, of wife in action, 199-205. wife's equity in, 205-216. chattels real of wife, 216-221. real estate of wife, 221-227. rights of, modified by married women's acts, 252-282. REAL ESTATE: of wife, 221-227. INDEX. 487 RECRIMINATION : as defense to divorce, 478-480. RELATIONSHIP : as affecting marriage, 28-31. REMAINDER : dower in estate of, 373; 374. REVERSION : dower in estate of, 373, 374. SEPARATE ESTATE: wife's, in equity, 283-286. SEPARATE PROPERTY: wife.s 283-286. SETTLEMENT : ante-nuptial, 292-297. post-nuptial, 298-300. SLAVE: marriage of, 30-34. STATUS : marriage as a, 23, 24, 25. TORTS : committed by wife, 191-195. committed upon wife, I95-I97- TRADE : power of wife to, 287-291. TRUST ESTATES : dower in, 426-429. THEORETIC UNITY: effect of, at common law, 122-138. effect of legislation upon, 123-138. WIDOW: rights and liaibilities of, 3o7-309- 488 IISTDEX. WIFE: right of, to sue third persons, 152-156. as a criminal, 156-163. debts and contracts of, 163-191. effect of death on debts' of, 186-igi. injuries and frauds of, 191-197. torts comrfiitted by, 191-195. torts committed upon, 19S-197, property of, 197-227. ' personal property of, in possessions, 197-198. personal property of, in action, 199-205. equity of, 205-216. chattels real of, 216-221. real estate of, 221-227. separate estate of, in equity, 283-286. separate earnings of, at common law, 287-288. power of, to trade, at common law, 287-288. separate earnings and power to trade of, by statute, 289-291. rights and liabilities of surviving, 307-309. paraphernalia of, 307-309. WILD LANDS: dower in, 402-408. Any Book in this List will be sent, carriage free, to any address in the -world on receipt of price named. A LIST OF BOOKS PUBLISHED BY GEORGE WAHR, PUBLISHER AND BOOKSELLER TO THE UNIVERSITY OF MICHIGAN. ANN ARBOR, MICH. 1900. f\ LIST OF BOOKS PUBLISHED BY Publisher and Bookseller to the University of Michigan, Ann Arbor. Any book in this list will be sent, carriage free, to any address in the world on receipt of price named. ANATOMY. — Outlines of Anatomy, A Guide to the Dissection of the Hu?nan Body. Based on a Text-Book of Anatomy. By American Authors, 54 pages. Leatherette, 50 cents. The object of this ■outline are to inform the student what structure are found in each region and where the description of each structure is found in American Text- Book of Anatomy. BOWEN, — A Teachers'* Course in Physical Training. By Wilbur P. Bowen, Director of PhysicarXraining, Michigan State Normal Col- lege. A brief study of the fundamental principles of gymnastic training, designed for Teachers of the Public Schools. 183 pages. 43 illustrations. Cloth, $1.00. CHEHVER. — Select Methods in Inorganic Quantitative Analysis. By Byron W. Cheever, A.M., M.D., late Acting Professor of Metal- lurgy in the University of Michigan. Revised and enlarged by Frank Clemes Smith, Professor of Geology, Mining and Metallurgy in the State School of Mines, Rapid City, S. D. Parts I. and 11. Third edition. lamo. $1.75. The first part of this book, as indicated by the title, consists of Laboratory Notes for a Beginner's Course in Quantitative Analysis. It considers the subjects of Gravimetric and Volumetric Analysis, for beginners, by means of the chemical analysis of a set of substances, properly numbered, in each case giving the methods to be followed in such analysis; also the methods for calculatme: and preparing volumetric standard solutions, generally following the course offered by Professor Cheever to bis students. It also considers the methods for the determination of the specific gravities of various liquids and solids. Although a number of the analyses contained in Part I. may be of only approxi- mate accuracy, and of small commercial value, such are yet included with a special purpose, to wit :— that they may supply the student with a wider range of work and a greater diversity of chemical manipulation. This was Professor Cheever's idea, and it is certainly a good one, especially since, in most cases, the work of the begin- ner simply serves to emphasize the necessity of careful scrutiny of details and methods for practical work in the future. Part I. is offered, then, for the use of schools and colleges, and it is intended to ■supply a source of elementary information upon the subject of puantitative Chemi- cal Analysis rarely offered in such form in works upon that subject. — Preface. The author was for many years Professor of Metallurgy in the University of Michigan, and the methods here presented are those mostly offered by him to his students. As a beginner's book in quantitative analysis, it will be found eminently practical, and it can be honestly recommended to the student who desires a source of elementary information upon this hranch of applied science. The book is divided into two parts, the first consisting of laboratory notes for beginners. The subjects of gravimetric and volumetric analysis are considered by means of the chemical analysis of a set of substances, properly numbered, in each case giving the methods to be followed in such analysis, and also the methods of calculating and preparing volumetric standard solutions, etc. Methods for the determination of specific gravities of various liquids and solids are also considered. Part II. contains a number of select methods in inorganic quantitative analysis, such as the analysis of limestone, iron ores, manganese ores, steel, the_ analysis of coal, water, mineral phosphates, smelting ores, lead slags, copper, arsenic, bisniuth, etc. A chapter on reagents concludes the work. — Pharmaceutical Era. DEWEY.— 7%^ Siudy of Rthics. A Syllabus. By Jonn Dewey, Pro- fessor of Philosophy in the University of Chicago. Octavo. 144 pages. Cloth, $1.25. D*OOGE, — Helps to the Study of Classical Mythology ; for the Loiver Grades and Secondary Schools. By B. L. D*Ooge, Professor in the Michigan State Normal College. i2mo. iSopages. Cloth. 45cents. A bibliography based on practical experience. The author is a professor in the Michigan State Normal College. As the myths of all nations manifest themselves first in religion, secondly in art, and third in literature, these reading references are grouped in the above classes. One section is devoted to the study of mythology in the grades, and an introductory chapter gives hints for teaching the subject in the lower grades. The books suggested in the body of the work are given in one alpha- bet at the end, with publishers and prices ; there are also blank pages for additional references, and a good general index. — PiiJbtis/iers JVeeMy, DOW. — Brief Outlines in European History. A Syllabus for the Use of Students in History ^ Course /., in the University 0/ Michigan. By Earl Wilbur Dow. 41 pages. Pamphlet, 35 cents. DOW. — Brief Outlines in European History. A Syllabus for the Use of Students in History, Course II., in the University of Michigan. By Earl Wilbur Dow. 47 pages. Pamphlet, 35 cents. DWYER, — Cases on Private International Law. By John W. Dwyer, University of Michigan. 8vo. 509 pages. Buckram, $2.50. This is a very excellent coUectioB of cases on private international law made by Mr. Dwyer, covering a variety of subjects, and is intended especially for the use of students, though certain to prove interesting and valuable to all practitioners.— ^Z- bany Law Journal, The cases are not new, many of them are quite old, but are well chosen with the view of illustrating international law where the contests arise between parties, one of whom is domiciled in this country, and the other in a foreign country, or between parties residing in different states in this country. These cases, which have been selected by the author with much good judgment, illustrate with great fullness under the conditions above stated the law pertaining to marriage, divorce, legitimacy, guardians, administration, judgments, corporations, unmovables, movables, attach- ment, contracts, statute of frauds, torts, procedure. Also domicil of students, sailors, apprentices, insane persons, infants, married women, commercial domicil, reverter, domicil in uncivilized countries, domicil of origin and choice. These cases may well be called leading cases, and will afford much aid to the seeker of information analogous to the subjects in these cases discussed.— Cfiw^ra/ Law Journal. I have examined with care the copy of Prof. Dwyer's selected cases on Private International Law, which you sent me some weeks since, and I have no hesitation in saying that it is the best selection I have yet seen of cases upon this subject. It is especially satisfactory on the subject of "Domicile", "Administration" and ' "Guardianship". Had I not already made a selection of cases for the use of my classes in the Law School Gf the University of Maryland, I should unhesitatingly select this book as a text-book for that subject. As it is I find that I am using several of the cases selected by Mr. Dwyer, and have been for some time. HENRY STOCKBRIDGE, Baltimore, Md. I have received and examined witli much fullness and interest the volume of "Cases on Private International Law", by Dwyer. I am much pleased with the selection of cases, and think the topics covered by the cases are those of most interest and importance in connection with the subject of Private International Law. I have taught Private International Law by means of lectures for several years, and feel quite competent to judge of the sagacity in the selection of the cases, and of the admirable arrangement of them m their sequential order by Mr. Dwyer in his volume of cases. I can most cordially commend the volume, and shall myself hereafter use it in the Iowa College of Law. C. C. COLE, Iowa College of Law. I have examined with care Dwyer's " Cases on Private International Law ", and find them judiciously selected and edited. The author has succeeded in presenting in a small compass many importantdecisions in which the leading doctrines of this branch of the law are exhibited and applied in a manner ro make the book useful alike to the student and to the practitioner. I trust the work will meet with the favorable reception it deserves. GEO. B YOUNG, St. Paul, Minn. DZIOBEK. — Mathematical Theories of Planetary Motions, By Dr. Otto Dziobek, Privatdocent in the Royal Technical High School of Berlin, Charlottenburg. Translated by Mark W. Harriiigton, for- merly Chief of the United States Weather Bureau, and Professor of Astronomy and Director of the Observatory at the the University of Michigan, President of the University of Washington, and Wm. J. . Hussey, Assistant Professor of Astronomy in the Leland Stanford, Jr. University. 8vo. 294 pages. $3.50. The determination of the motions of the heavenly bodies is an important problem in and for itself, and also on account of the influence it has exerted on the develop- ment of mathematics. It has engaged the attention of the greatest mathematicians, and, in the course of their not altogether successful attempts to solve it, they have displayed unsurpassed ingenuity. The methods devised by them have proved use- ful, not only in this problem, but have also largely determined the course of advance in other branches of mathematics. Analytical mechanics, beginning with Newton, and receiving a finished clearness from Lagi'ange, is especially indebted to this problem, and in turn, analytical mechanics-has been so suggestive in method as to determine largely both the direction and rapidity of the advancement of mathemat- ical scienoe. Hence, when it is desired to illustrate the abstract theories of analytical mechan- ics, the profundity of the mathematics of the problem of the motions of the heavenly bodies, its powerful influence on the historical development of this science and finally the dignity of its object, all point to it as most suitable for this purpose. This work is intended not merely as an introduction to the special study of astronomy, but rather for the student of mathematics who desires an insight into the creations of his masters in this field. The lack of a text-book, giving, within mode- rate limits and in a strictly scientific manner, the principles of mathematical astron- omy in their present remarkably simple and lucid form, Is undoubtedly the reason why so many mathematicians extend their knowledge of the solar system but little beyond Kepler's law. The author has endeavored to meet this need, and at the same time to produce a book which shall be so near the present state of the science as to include recent investigations and to indicate unsettled questions. FARRAH-DWYER. — Cases on the Law of Husband and Wife. In press. FLORER. — Biblical Selections for Beginners in German. With ques- tions for drill in speaking, writing and grammar. By Warren Wash- burn Florer, University of Michigan. Board Covers. 42 pages. 30 cents. FLORER.—^ Guide for the Study of Heyse's VArrabbiate. With Questions for Grammar Review. By Warren W. Florer, University of Michigan. Pamphlet. 35 pages. 20 cents. FORD. — The Cranial Nerves. 12 pairs. By C. L. Ford, M.D., late Professor of Anatomy and Physiology in University of Michigan. Chart, 25 cents. / 'PO'S.'O .—Classification of the Most Important Muscles of the Humcin Body, With Qrigin Insertion, Nervous Supply and Principal Action of Each. By C. L. Ford, M.D., late Professor- of Anatomy and Physiology in the University of Michigan. Chart, 50 cents. FRANCOIS. — Les Aventures Du Dernier Abencerage Par Chateaubri- and, Edited with Notes and Vocabulary. By Victor E. Francois, Instructor in French in the University of Michigan. Pamphlet, 35 cents. GRAY.— Outline of Anatomy. A Guide to the Dissection of the Human Body, Based on Gray's Anatomy. 54 pages. Leatherette, 60 cents. ■The objects of the outline are to inform the students what structures are found in each region and where the description of each structure is found in Gray's Ana- tomy. — Thirteenth edition, dated 1897. GREENE. — 7%^ Action of Materials Under Stress, or Structural Me- chanics. With examples and problems. By Charles E. Greene, A.M., M.E., Professor of Civil Engineering in the University of Michigan. Consulting Engineer. Octavo. Cloth, $3.00. Contents. — Action of a Piece under Direct Force. Materials. Beams. Tor- sion. Moments of Inertia. Flexure and Deflection of Simple Beams. Restrained Beams: Continuous Beams. Pieces under Tension. Compression Pieces:— Col- umns, Posts and Struts. Safe Working Stresses. Internal Stress: Change of Form. Rivets; Pins. Envelopes: Boilers, Pipes, Dome. Plate Girder. Earth Pressure ; Retaining Wall : Springs : Plates. Details in Wood and Iron. HERDMAN-NAGLER. — A Laboratory Manual of Electrotherapeutics. By William James Herdman, Ph.B., M.D., Professor of Diseases of the Nervous System and Electrotherapeutics, University of Michigan, and Frank W. Nagler, B.S., Instructor in Electrotherapeutics, Uni- versity of Michigan. Octavo. Cloth. 163 pages. 55 illustrations. $1. so- il has been our experience that the knowledge required by the student of medi cine concerning electricity and its relation to animal economy is best acquired by the laboratory method. By that method of instruction each principle is impressed upon the mind through several separate paths of the sense perception and a manual dexterity is acquired which is essential to success in the therapeutic applications. This has been the plan adopted for teaching electrotherapeutics at the Univer- sity^ of Michigan. Every form of electric modality that has any distinctive physio- logical or therapeutical effect is studied in the laboratory as to its methods of gen- eration, control and application to the pattent. We believe this to be the only practicable way for imparting the kind of instruction required for the practice of electrotherapeutics, but in our attempt to develop a naturally progressive and at the same time complete and consistent course of laboratory instruction we have found it a thing of slow growth. This laboratory manual is the final result of our various trials and experiences, and while we do not claim for it either perfection in the arrangement of matter or completeness in detail, we feel that the time has come for putting our plans in a form that will permit for it a wider usefulness as well as gain for it in the intelligent criticism of the experienced workers to the field which it seeks to cultivate.— From Pre/ace. HILDNER-DICKOFF. — Anleitung Zum Verstandnis von Storm's Immensee fur Schuler und Studenten Amerikanischer Lehran stalten. Von Hildner und Dickoff, University of Michigan. Pamphlet. 16 pages. 15 cents. HOwELL. — Directions for Laboratory Work in Physiology for the Use of Medical Classes. By W. H. Howell, Ph.D., M.D., Professor of Physiology and Histology. Pamphlet. 62 pages. 65 cents. aUBKR.—DirecHons/or Work in the Histological Laboratory. By G. Carl Huber, M.D., Assistant Professor of Histology and Embry- ology, University of Michigan. Second edition, revised and eblarged. Octavo, igi pages. Cloth, $1.50. It is adapted for classes in medical schools and elsewhere where it is desired to furnish the class with material already prepared for the demonstration of structure rather than to give instruction in the techmque of the laboratory. Provision for the latter Is made, however, by the addition or a section of about 60 pages on the meth- ods for laboratory work . This section includes methods of macerating, hardening and fixing, decalcifying, impregnation, injecting, embedding, ciaining, and methods for preparing and staining blood preparations. The last is accompanied by an ex- cellent plate of blood elements. The selection of methods has in the main been judicious. The expositions are both clear and concise.— Journal Of Compa/rative Neurology. In this little book Dr. Huber has given us a model manual of microscopical tech- nique in the laboratory study of histology. The subject matter is divided into con- venient chapters, commencing with the cell and cell division (karyokinesis) in plant and animal life, and gradually developing, by easy stages, the most complex tissues of the animal and vegeatble organism. Between each lesson blank pages are inter- leaved, to be used by the student for drawing the objects seen by him with a pencil or crayon— a most excellent plan as nothing fixes the appearance and characteristics of objects more firmly on the mind than drawing them, either free-hand or with a camraa lucida (the former being preferable, as it educates the hand and eye). With each subject is given the source and origin, the best methods for obtaining and pre- paring it, and attention is called to the most noteworthy or characteristic points for examination. The second part of the book is devoted to methods for laboratory work: soften ing, hardening, decalcification, etc., of the matter in gross; emBedding, sectioning, staining and mounting, etc. The best stains, with methods of preparing the same, and, in short, a general formulary for the various reagents, etc., concludes the work, which is intended, as stated, as an aide memoire supplementary to a course of lec- tures on histology. We congratulate Dr. Huber on the skill with which he has developed the idea, and the didactic methods which he has employed. Such a book cannot but prove a great help to both student and teacher, and it should be more widely known —St. Louis Medical and Surgeon's Journal. JOHNSON. — Elements of the Law of Negotiable Contracts. By E. F. Johnson, B.S., LL.M., Professor of Law in the Department of Law of the University of Michigan. 8vo., 735 pages. Full law sheep binding. $3.75. Several yeais of experience as an instructor has taught the author that the best method of impressing a principle upon the mind of the student sto show him a prac- tical application of it. To remember abstract propositions, without knowing their application, is indeed difficult for the average student. But when the primarypriu- ciple is once associated in his mind' with particular facts illustrating its applica- tion, it is more easily retained and more rapidly applied to analogous cases. It is deemed advisable that the student in the law should be required, during his . course, to master in connection with each general branch of the law, a few well-se- lected cases which are illustrative of the philosophy of that subject. To require each student to do this in the larger law schools has been found to be impracticable, ow- ing to a lack of a sufficient number of copies of individual cases. The only solution of this difficulty seems to be to place in the hands of each student a volume contain- ing the desired .cases. In the table of cases will be found many leading cases printed in black type.— From Preface. LEVI-FRANCOIS. — A French Reader for Beginners, with Notes ana Vocabulary. By Moritz Levi, Assistant Professor of French, Univer- sity of Michigan, and Victor E. Francois, Instructor in French, Uni- versity of Michigan. 12 mo. 261 pages. $1.00. This reader differs from its numerous predecessors in several respects. First, being aware that students and teachers in the French as well as in the German de- partments of high schools and colleges are becoming tired of translating over and over again the same old fairy tales, the editors have avoided them and selected some interesting and easy short stories. They have also suppressed the poetic selections which are never translated in the class-room. Finally, they have exercised the great- est care in the gradation of the passages chosen and in the preparation of the vocab- ulary, every French word being followed not only by its primitive or ordinary mean- ing, but also by the different English equivalents which the text requires. After careful examination, we consider this reader as one of the best on the American market. LLOYD. — Philosophy of History, An Introduction to the Philosophical Study of Politics. By Professor Alfred H. Lloyd, University of Michigan. i2mo. 250 pages. Cloth, $1.00. Philosophy of History.— "Professor Lloyd has already outlined his conception of history in a volume entitled Citizenship and Salvation (1897). The present ex- position is at the same time more definite and more comprehensive. About a third of the book is devoted to a philosophic study of the data of history; and this is followed by an analysis of the social unit, the group, and by a systematic account of the formula of history as it appears to the philosopher. The last four chapters are essays in which such topics as "Good and Evil" and ' The Great Man" are treated from the historical point of view which is expounded tn the main part of the vol- ume. In these chapters as well as in the second part of the book acute and valua- ble comments on different phases of historical development abound. The first part of the volume, however, discussing Time, Causation, the Individual and Nature as data of history [.is the most] valuable," — The Philosophical Review^ March, 7900. "The Philosophy of History is a meritorious attempt to connect the facts of history with the causes which have infiuenced the social evolution of the human race. Most writers are satisfied with the visible, immediate and direct causes of the rise or fall of nations but Professor Lloyd wants us to go deeper yet [but] whatever be the mental attitude of the readers with regard to the positions advocated in the book all will admit that it is written with great keenness of perception and with a sincere desire to reconcile, so far as possible, all intellectual and moral differences. If the author has not succeeded in accomplish- ing the task [of reconciiation], it is because there are differences that can not be reconciled, even by benevolence and ingenuity combined." — Annals of the Ameri- can Academy of Political and Social Science^ March, 1900. LYMAN-HALL-GODDARD.— ^/^^<^?-«. By Elmer A. Lyman, A.B., Edwin C. Goddard, Ph.B., and Arthur G. Hall, B.S., Instructor in Mathematics, University of Michigan. Octavo. 75 pages. Cloth, go cents. MATTHEWS. — Syllabus of Lectures on Pharmacology ana Therapeu tics in the University of Michigan. Arranged Especially for the Use of the Classes Taking the Work in Pharmacology ana Thera- peutics at the University of Michigan. By P. A. Matthews, M.D., Assistant in Pharmacy and Therapeutics, University of Michigan. i2mo. 114 pages. $1.00. MEADER. — Chronological Outline of Roman Literature. By C L Meader, A.B., Instructor in Latin in University of Michigan. Chart, 25 cents. MICHIGAN BOOK.— T:^.? U. of M. Book. A Record of Student Life and Student Organizations in the University of Michiga^i. Articles contributed by members of the Faculty and by prominent Alumni. $1.50. MONTGOMERY-SMITH.— Z^^^?-rt/(3rj/ Manual of Elementary Chem- istry. By Jabez Montgomery, Ph.D., Professor of Natural Science, , Ann Arbor High School, and Roy B. Smith, Assistant Profes- sor in Chemical Laboratory, Ann Arbor High School. 12 mo. 150 pages. Cloth, $1.00. This Work is intended as a laboratory guide to be used in connection with a good text-book or course of lectures, and in its arrangement and scope it is based upon the practical experience of two instructors in the Ann Arbor High School. It is therefore restricted to such work as may be done by the average high school pupil. The experiments which are directed are given more to enable the student to compre- hend the methods of analytical chemistry than to acquire particular proficiency in the work of chemical analysis. The work is characterized by minuteness of explan- ation, a feature which will be appreciated by the beginner.— P?iarmaceuti'cal i^ra ■/ NETTO. — The Theory of Substitutions and its Application to Algebra. By Dr. Eugene Netto, Professor of Mathematics in the University of Giessen. Revised by the author and translated with his permission, by F. N. Cole, Ph.D., formerly Assistant Professor of Mathematics in the University of Michigan, Professor of Mathematics, Columbia University. 8 vo. 301 pages. Cloth. $3.00. NOVY. — Laboratory Work in Physiological Chemistry. By Frederick G. Novy, Sc.D., M.D., Junior Professor of Hygiene and Physiological Chemistry, University of Michigan. Second edition, revised and enlarged. With frontispiece and 24 illustrations. Octavo. Cloth, $2.00. This book is designed for directing laboratory work of medical students, and in showing them how to study the physics and physiology of the digestive functions of the blood, the urine and other substances which the body contains normally, or which it speedily eliminates as effete material. The second edition has appeared within a very short time after the publication of the first. The first chapters deal with the facts, the carbohydrates and proteids. Then follow others upon the saliva, the gastric juice, the pancreatic secretion, the bile, blood, milk, and urine, while the closing chapter deals with a list of reagents. While the book is manifestly designed for the use of Dr. Novy's own students, we doubt not that other teachers will find it a valuable aid in their work. At the close of the volume are a number of illustrations of the various sedimentary substances found in the urine, taken from the work of von Jaksch. — T/i6 TTierapeiittfi Gazette This book, although now in its second edition, is practically unknown to British readers. Up to the present, anyone wishing to find out how a particular analytical method in physiological chemistry ought to be carried out, had of necessity to refer to a German text-book. This comparatively small book — for it only covers some three hundred pages — gives as good a general account of ordinary laboratory methods as any teacher or student could desire. Although the author refers in his preface to help derived from the works of Salkowski, Hammarsten and others, it is but fair to say that the book has undoubtedly been written by one who has worked out the methods and knows the importance of exact practical details— EdinhivrQh Med. Jour., Scotland, Physiological chemistry is one of the most important studies of the medical curri- culum. The cultivation of this field has until recently been possible to but few. The rapid development of this department of science within a few years past has thrown much ahd needed light upon physiological processes. It is from this quarter and from bacteriological investigations that progress must chiefly be expected. The rapid growth of this branch of chemistry is attended by another result. It necessi- tates the frequent revision of text-books. The present edition of Dr. Novy's valu- able book is almost wholly rewritten. It is representative of the present state of knowledge and is replete with information of value alike to student and practitioner. Few are better prepared to write such a book than Dr. Novy, whahas himself done much original work in this field.— T?i6 Medical Bulletin, Philadfilphia. This is a greatly enlarged edition of Dr. Novy's work on Physiological Chemistry, and contains a large amount of new material not found in the former edition. It is designed as a text-book and guide for students in experimental work in the labora- tory, and does not therefore cover the same ground as the works of Gamgee, Lea, and other authors of books on physiological chemistry. As a laboratory guide it should be adopted by our medical colleges throughout the country, because it is an American production, contains only such directions and descriptions as have been verified by actual practice with students, and because it is clear, concise and definite in all its statements. Its first ten chapters treat of fats, carbohydrates, proteins, saliva, gastric juice, pancreatic secretion, bile, blood, milk, and urine. Chapter xi. is devoted to the quantitative analysis of urine, milk, gastric juice, and blood, while chapter xii. gives tables for examination of urine and a list of reagents.— Am. Medico-SurQical Bulletin^ N. Y. NOVY. — Laboratory Work in Bacteriology. By Frederick G. Novy, So. D., M.D., Junior Professor of Hygiene and Physiological Chemistry, University of Michigan. Second edition, entirely rewritten and enlarged, 563 pages. Octavo. $3.00. As a teacher of bacteriology, the author has had extensive experience, and the second edition of his book will be highly prized by students for its practical service and thoroughness. The methods of investigation described are mamly those which have been employed in the hygienic laboratory or the University of Michigan, and they have stood the test of practical demonstration' and usefulness. One of the most interesting parts of the book is the chapter on the chemistry of bacteria, and the general reader cannot fail to obtain from it a clear understanding of the com- plex changes induced by these minute organisms. The functions of the various ferments are also very cleverly discussed. An enumeration of the chapter headings will serve to show the scope of the work : Form and Classification of Bacteria ; Size and Structure of Bacterial Cell; Life History of Bacteria; Environment of Bacteria; Chemistry of Bacteria; the Microscope; Cultivation of Bacteria; Non-Pathogenic Bacteria; Bouillon, Agar, Milk and Modified Media, the Incubator and Accessories; Relation of Bacteria to Disease — Methods of Infection and Examination; Patho- genic Bacteria; Yeasts, Moulds and Streptotrices; Examination of Water, Soil and Air; Special Methods of Work. To the latter subject, two chapters are devoted, in which are very fully outlined various special methods of value to advanced students.— Pharmaceutical Era, N. T. This book is intended for the student and seems admirably to subserve the pur- pose for which it has been written. The arrangement of the subject-matter con- forms closely to that followed in the Hygienic Laboratory of the University of Michigan. Those methods only are described that have withstood the test of prac- tical experience. Many of the methods and some of the apparatus are original. Illustrations of bacteria and descriptions of cultural peculiarities have been omitted, inasmuch as the student is expected to learn these from personal observa- tion. The work is divided into 15 chapters under the following headings ; Form and classification of bacteria; size and structure of the bacterial cell; the life-history of bacteria; the environment of bacteria; the chemistry of bacteria; the microscope; the hanging drop; simple staining; gelatin and potato media; cultivation of bac- teria; the nonpathogenie bacteria; bouillon, agar, milk, and modified media; the incubator and accessories; relation of bacteria to disease, methods of Infection and examination; the pathogenic bacteria; yeasts, molds, and streptothrices : examina-' tion of water, soil and air; special methods of work. ~P/iiladeljfikia Medical Journal. ROOD. — Cojmnon Remedial Processes. By J. R. Rood, University of Michigan. 8vo. 360 pages. Buckram, $3.00; Full Sheep, $3.50. Treating of the means by which judgments are enforced: and principal of attach- ment, garnishment, execution and replevin; and incidentally of the judgments en- forced, the nature, essentials, record and satisfaction of them. The author, John R. Rood, has heretofore written a treatise on the Law of Garnis>iment, and is an instructor in the law department of the University of Michigan, This work has been prepared especially for students, and is the result of an attempt to prepare a course of study on the general principles of the law of judgments and the means of enforcing them. The author says that in view of the great practical importance of this branch of the law. it is surprising that no previous attempts have been made in this direction for the use of students. The book treats of legislative control of remedial processes ; on what judgments and in what actions the processes are available; at what stage of the cause the processes are available, to whom and against whom they are available; what courts may issue the processes; execution of the processes, where when, by whom and how it should be made, and what may be taken under the process; character of the creditor's lien, or right under tbe proc- esses; the rule of priority or when the lien attaches, and how the Hen may be lost. — Central Laiv Journal. ROOD. — Important English Statutes. Edited by John R. Rood, Uni" versity of Michigan. 8vo. 24 pages. Imitation leather, 25 cents* This pamphlet contains the Statute of Trauds (29 Car. II. c. 3I complete, also Lord Campbell's Act, the Mandamus Act of 9 Anne, and the Victorian Wills Act. The intention is to furnish students a copy of all those important English statutes which have been generally re-enacted in the American statutes and are therefore prominent in his courses of study. STRUMPELL. — Short Guide for the Clinical Examination of Patients. Compiled for the Practical Students of the Clinic, by Professor Dr. Adolf Striimpell, Director of the Medical Clinic in Erlangen. Trans- lated by permission from the third German edition, by Jos. L. Abt. Cloth, 39 pages, 35 cents. Preface to the Second Edition.— The second edition of this nook has been improved by me in several parts, and particularly the sections treating of the exam- ination of the stomach and nervous system have been slightly extended. The author trusts that the book may also fulfill its purpose in the future, in assisting the student to learn a systematic examination of the patient, and to impress on him the most important requisite means and methods. SUNDERLAND.— C)k* Upward Look Each Day. Poems of Hope and Faith. Selected by J. T. Sunderland. Third Edition, i6 mo. White Binding, 30 cents; Cloth, 40 cents; Full morocco, 75 cents. SUNDERLAND— ffrainj of Gold. Some Thoughts and a Brief Prayer For Each Day of the Months. Designed as Daily Helps in the Higher Life. Compiled by J. T. Sunderland. White Binding, 35 cents. WARTHIN. — Practical Pathology for Students and Physicians. A Manual of Laboratory and Post-Mortem Technic, Designed Espe- cially for the Use of funior and Senior Students in Pathology at the University of Michigan. By Aldred Scott Warthin, Ph.D., M. D., Instructor in Pathology, University of Michigan. Octavo. 234 pages. Cloth, $1.50. We have carefully examined this book, and our advice to every student and prac- titioner of medicine is — buy it. You will never regret having invested your money in it. and you will acquire such a large fund of information that the study of pathology will become a pleasure instead of the drudgery which it so unfortunately seems to be in many cases. Part I. of this book, embracing some 103 pages, deals with the materials, which includes the proper examination and notation of the gross changes which have occurred in every part of the body. In fact it is a complete expos^ of what a com- plete and accurate autopsy should be, the observance of which is oftener followed in the breach than in the actuality. Part II., which includes 134 pages, deals with the treatment of the material. This is a very important part of the work, as it gives explicit directions in regard to the instruments to use, stains and staining methods, drawing, the preservation of specimens, hardening methods, in fact, of all those technical points connected with practical pathological microscopy. The examina- tion of fresh specimens, injections, methods fixing specimens as well as special staining methods are taken up. In fact, space forbids us to give the entire, which are most valuable in every detail.— St. LiMiK MeAical and Hurgical Journal. WARTHIN. — A Blank Book for Autopsy Protocols. By Aldred Scott Warthin, M.D., Ph.D., Assistant Professor of Pathology in the University of Michigan. Bound in Full Canvass, 50 cents. The medical student at the University of Michigan is expected to attend twenty autopsies during the last two years of his studies, and this book is designed to facilitate the keeping of a careful protocol, which he is required to make in every case. The book is of a convenient size and can accommodate the autopsy protocols of ten cases. Each autopsy is allowed ten pages, carefully ruled for the various organs WATSON. — Tables for the Calculation of Simple or Compound Interest and Discount and the Averaging of Accounts. The Values of Annuities.^ Leases, Interest in Estates and the Accumulations and Values of Investments at Simple or Compound Interest for all Rates and Periods; also Tables for the Conversion of Securities and Value of Stocks and Bonds. With full Explanation for Use. By James C. Watson, Ph.D., LL.D. Quarto. Cloth, $2.50. A book most valuable to bankers, brokers, trustees, guardians, judges, lawyers, accountants, and all concerned in the computation of interest, the division and set- lemeat of estates, the negotiation of securities, or the borrowing and lending of money, is the above work of the late Professor James C. Watson, formerly Director of the Observatories and Professor of Astronomy at the Universities of Michigan and, Wisconsin, and Actuary of the Michigan Mutual Life Insurance Company. It contains, in addition'to the usual tables for the calculation of simp le or com- pound interest and discount, many tables of remarkable value, not found elsewhere, for the averaging of accoutn«, the values of annuities, leases, interests in estates, and the accumulations and values of investments; also tables for ihe co nversion of securities, and the values of stocks and bonds. . . ■ . There are also given very full and clear explanations of the principles involved m financial transactions, and a great variety of miscellaneous examples are worked out in detail to illustrate the problems arising in interest, discount, partial payments, averaging of accounts, present values, annuities of difEerent kinds, annual payments for a future expectation (as in life insurance), or for a sinking fund, conversion of securities, values of stocks and bonds, and life interests. This book was issued from the press under the author's careful supervision. Professor Watson was noted for his clear insight into problems involving computa- tions, and also for his wonderful ability in presenting the method of solution of such problems in a plain and simple manner. The varied array of practical examples given in cdnnection with his "Table " shows these facts in a remarkable manner. This book provides, for those least expert in calculations, the means of avoiding mistakes likely to occur; and for the man engrossed in the cares of business, the means of making for himself, with entire accuracy, the calculation which he may need, at the moment when it is needed, WRENTMORE-GOULDING.— W Text-Book of Elementary Mechan- ical Drawing for Use in Office or School. By Clarence G. Wrent- more, B.S., C.E., and Herbert J. Goulding, B.S., M.E., Instructors in Descriptive Geometry and Drawing, at the University of Michigan. Quarto. log pages and 165 cuts. $1.00. This book is intended for a beginners course in Elementary Mechanical Drawing for the of5ce and school. Illustrations have not been spared, and the explanations have been made in a clear and concise manner for the purpose of bringing the stu- dent to the desired results by the shortest route consistent with the imparting of an accurate knowledge of the subject. The first chapter is devoted to Materials and Instruments; the second chapter, Mechanical Construction; third chapter, Penciling. Inking, Tinting; fourth chap- ter. Linear Perspective ; fifth chapter. Teeth of Grass. WRENTMORE.— /'/am Alphabets for Office and School. Selected by C. G. Wrentmore, B.S., C.E., Instructor in Descriptive Geometry and Drawing, University of Michigan. Oblong. 19 plates. Half leather, 75 cents. REV. J. T. YOUNG — " Mormonism: Its Origin, Doctrines, and Dangers." Pamphlet. 72 pages. 25 cents. This brochure of seventy pages in paper covers is a sharp attack on the Mormon system, showing that its beginnings were in fraud and villainy, that its doctrines are debasing, and that its continuance in the United States is a political and religi- ous menace. If Mormonism is one-tenth as bad as this booklet represents, the marvel is that the viper life was not crushed out long ago. — The Standard, Chicago. Souvenir of the University of Michigan, Ann Arbor. Containing 38 photo-gravures of President James B. Angell, prom.nent University Buildings, Fraternity Houses, Churches, Views of Ann Arbor, Etc., Etc. Done up in blue silk cloth binding. Price, 50 cents, postpaid. Physical Laboratory Note Book. — A Note Book for the Physical Lab- oratory. Designed to be used in conhection with Chute's Physical Laboratory Manual. Contains full directions for keeping a Physical Laboratory Note Book. 112 pages of excellent writing paper, ruled in cross sections. Metric System, size 7 x gj^ inches. Bound in full canvass, leather corners. Price, by mail, 30 cents. Special prices to Schools furnished on application. Botanical Laboratory Note Book. — A Note Book for the Botanical Lab- oratory. 200 pages of best writing paper, ruled with top margins. Pocket on inside of front cover for drawing cards. Bound in sub- stantial cloth cover and leather back. Size 6 X 9^. Price, by mail, 35 cents. Special prices to schools furnished on application. KF 509 F23 Author Vol. Farraii, Albert John Title Copy Cases oa the law of husband and