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of it be free, and not the result of flattery, force, or improper treatment.
This decision of the court of errors renders the wife more completely and absolutely a feme sole in respect to her separate property, than the English decisions would seem to authorize; and it, unfortunately, withdraws from the wife those checks that were intended to preserve her more entirely from that secret and insensible, but powerful marital influence, which might be exerted unduly, and yet in a manner to baffle all inquiry and detection.a
A wife may also contract with her husband, even by parol, after marriage, for a transfer of property from him to her, or to trustees for her, provided it be for a bona fide and valuable consideration; and she may have that property limited to her separate use. This was so held in
• In Morgan v. Elam, 4 Yerger's Tenn. Rep. 375, the points discussed in Jaques v. The Methodist Episcopal Church, were examined by counsel and by the court with great research and ability, and the decision was favourable to the doctrine as declared in the court of chancery in New-York, in the above case. It was held, that the power of a married woman over her separate estate, did not extend beyond the plain meaning of the deed creating the estate, and that she was to be considered a feme sole in relation to the estate, only so far as the deed had expressly conferred on her the power of acting as a feme sole; and that when a particular mode was pointed out for the disposition of the separate estate of a married woman, she could not dispose of it in any other way. The same principle is recognized and established in Ewing v. Smith, 3 Dessauss' S. C. Rep. 417, in Lancaster v. Dolan, 1 Rawle's Rep. 231, and in Thomas v. Folwell, 2 Wharton, 11. In Whitaker v. Blair, in the court of appeals in Kentucky 31. 1. Marshall, 236, the decision in the case of Jaques in Chancery was considered as carrying the greater force of reason and prin. ciple with it, but the court held in Johnson v. Yates, 9 Dana, 500, and in Shipp v. Bowman, 5 B. Monroe, 163, that a feme covert to whose separato use lands have been conveyed to trustees, might, with her husband, and on her private examination, and by deed duly recorded convey all her interest therein without any power for that purpose, though I apprehend not against restrictive words. We may perhaps venture to consider the doctrine in Jaques v. The Methodist Episcopal Church, declared in the court of chancery of New York, as the better doctrine.
• Lady Arundell v. Phipps, 10 Vesey, 129. 145. Bullard v. Briggs, 7
the case of Livingston v. Livingston ;a and as the wife died, in that
case, after the contract had been executed on the part of the husband, and before it had been executed on the part of the wife, the infant children of the wife were directed to convey, as infant trustees, by their guardian, the lands which their mother, by agreement with her husband, had contracted to sell.
A wife may, also, sell or mortgage her separate *167 property *for her husband's debts, and she may
create a valid power in the mortgage to sell in default of payment. b She can convey upon condition, and she may prescribe the terms. It was long since held, even at law, in the case of Wotton v. Hele,d that the husband and wife might grant land belonging to the wife, by fine, with covenant of warranty, and that if the grantee should be evicted by a paramount title, covenant would lie after the husband's death, against the wife upon the warranty. This is a very strong case to show that the wife may deal with her land by fine as if she were a feme sole ; and what she can do by fine in England, she may do here by any legal form of conveyance, provided she execute under a due examination. The case states, that the court of K. B. did not make any scruple in maintaining, that the action of covenant was good against the wife on her warranty contained in her executed fine,
Pick. Rep. 533. Garlick v. Strong, 3 Paige's Rep. 440. But as against creditors existing at the time, postnuptial agreements will not be permitted to stand beyond the value of the consideration. Ibid. • 2 Johns. Ch. Rep. 537.
The general rule is, that if the wife joins hor husband in a mortgage of her estate for his benefit, the mortgage, as between the husband and wife, will be considered the debt of the husband, and after his death the wife, or her representatives, will be entitled to stand in the place of the mortgagee, and have the mortgage satisfied out of the husband's assets. Lord Thurlow, in Clinton v. Hooper, 1 Vesey, jun. 186.
e Demarest v. Wynkoop, 3 Johns. Ch. Rep. 129. Pybus v. Smith, 1 Vesey, jun. 189. Essex v. Atkins, 14 ibid. 542.
a 2 Saund. Rep. 177. 1 Mod. Rep. 290. S. C.
though she was a feme covert when she entered into the warranty. It is also declared in the old books, a that if the husband and wife make a lease for years of the wife's land, and she accepts rent after his death, she is liable on the covenants in the lease ; for, by the acceptance of the rent, she affirms the lease, though she was at liberty, after her husband's death if she had so chosen, to disaffirm it.b
(3.) Protection against her covenants.
This doctrine, that the wife can be held bound to answer in damages after her husband's death, on her covenant of warranty, entered into during *168 coverture, is not considered by the courts in this country to be law; and it is certainly contrary to the settled principle of the common law, that the wife was incapable of binding herself by contract. In the supreme court of Massachusetts, it has been repeatedly held, that a wife was not liable on the covenants in her deed, further than they might operate by way of estoppel; and though the question, in these cases, arose while the wife was still married, yet the objection went to destroy altogether the effect of the covenant. So, also, in Jackson v. Vanderheyden,d it was declared, that the wife could not bind herself personally by a covenant, and that a covenant of warranty, inserted in her deed, would not even estop her from asserting a subsequently acquired interest in the same lands.
Though a wife may convey her estate by deed, she will not be bound by a covenant or agreement to levy a
a Greenwood v. Tiber, Cro. Jac. 563, 564. 1 Mod. Rep. 291. 02 Saund. Rep. 180. note 9. Worthington v. Young, 6 Ohio Rep. 313. . Fowler v. Shearer, 7 Mass. Rep. 21. Colcord v. Swan, ibid. 291.
d 17 Johns. Rep. 167. Martin v. Dwelly, 6 Wendell's Rep. 1. S. P. This last point as to estoppel, is contrary to the cases of Hill v. West, 8 Ohio Rep. 225. Colcord v. Swan, 7 Mass. Rep. 291. Ibid. 21. 4 Bibb. Kentucky Rep. 436.
fine or convey her estate. The agreement by a feme covert, with the assent of her husband, for a sale of her real estate is absolutely void at law, and the courts of equity never enforce such a contract against her.a In the execution of a fine, or other conveyance, the wife is privately examined, whether she acts freely; and without such an examination, the act is invalid. But a covenant to convey is made without any examination; and to hold the wife bound by it, would be contrary to first principles on this subject, for the wife is deemed incompetent to make a contract, unless it be in her character of trustee, and when she does not possess any beneficial interest in her own right. The chancery jurisdiction is applied to the cases of property settled to the separate
use of the wife by deed or will, with a power of *169 appointment, and rendered *subject to her dispo
sition. On the other hand, the husband has frequently been compelled, by decree, to fulfil his covenant, that his wife should levy a fine of her real estate, or else to suffer by imprisonment the penalty of his default.b
But Lord Cowper once refused to compel the husband to procure his wife to levy a fine, as being an unreasonable coercion, since it was not in the power of the husband duly to compel his wife to alien her estate.c
e Butler v. Buckingham, 5 Day's Rep. 492. See, also, Watrous v. Chalker, 7 Conn. Rep. 224, S. P. In Baker v. Child, 1 Vern. Rep. 61, it was stated, as by the court, that where a feme covert agreed with her husband to levy a fine, and he died before it was done, the court would compel the wife to perform the agreement. But this case was said, in Thayer v. Gould, 1 Atk. Rep. 617, to have been falsely reported, and that there was no such decree ; and the master of the rolls, in Ambler, 498, spoke of it as a loose note. It is not law. Sed. Quæ. In the case of Stead v. Nel. son, 2 Beavan, 245, a wife having an estate for life for her separate use in lands, with an absolute power over the reversion, joined her husband in an agreement to execute a mortgage, held that such agreement was binding on the wife's surviving.
b Griffin v. Taylor, Tothill, 106. Barrington v. Horn, 2 Eq. Cases Abr. 17, pl. 7. Sir Joseph Jekyll, in Hall v. Hardy, 3 P. Wms. 187. Withers v. Pinchard, cited in 7 Vesey, 475. Morris v. Stephenson, 7 Vesey, 474.
e Otread v. Round, 4 Viner's Abr. 203, pl. 4.
other and later cases, the courts have declined to act upon such a doctrine ja and Lord Ch. B. Gilbert questioned its soundness.b In Emery v. Wase,c Lord Eldon observed, that if the question was perfectly res integra, he should hesitate long before he undertook to compel the husband, by decree, to procure his wife's conveyance; for the policy of the law was, that the wife was not to part with her property, unless by her own spontaneous will. Lastly, in Martin v. Mitchell,d where the husband and wife had entered into an agreement to sell her estate, the master of the rolls held, that the agreement was void as to the wife, for a married woman had no disposing power, and a court of equity could not give any relief against her on such a contract. She could not bind herself by contract, except in the execution of a power, and in the mode prescribed; nor would the court compel the husband to procure his wife to join in the conveyance. Such, said the master of the rolls is not now the law.
*The English courts of equity have, until re *170 cently, thrown a further and very important protection over the property settled on the wife on her marriage, for her separate use, with a clause against a power to sell or assign by anticipation. It was declared, in Ritchie v. Broadbent,e that a bill would not be sustained, to transfer to the husband property so settled in trust, even though the wife was a party to the bill, and ready to consent on examination to part with the funds. The opinion of the Lord Ch. Baron was grounded on the effect to be given to the clause against anticipation, and
Prec. in Ch. 76. Amb. Rep. 495. b Gilbert's Lez Pretoria, 245. • 8 Vesey, 505, 514.
d 2 Jac. & Walk. 412. Sir James Mansfield, in Davis v. Jones, 4 Bos. f Pull. 269. Brick v. Whelley, cited in Howel v. George, 1 Madd. Rep. 16, S. P.
• 2 Jac. & Walk. 455.