
    Samuel K. Montgomery et al. vs. The Agricultural Bank.
    
      Doty v. Mitchell, 9 S. & M. 435; cited and confirmed.
    A married woman cannot part with her separate property in any other mode than in that which is pointed out by the deed of settlement; if that prescribe a different mode from the one established by the statute for the transfer of her estate, the mode designated in the deed of settlement must he followed; it will not be sufficient to pursue the statute, if it differ from the deed of settlement; it is the latter, in such ease, and not the former, which confers the power.
    
      Where a marriage contract was entered into, by which the separate property of the wife and its proceeds were secured to her free from the control of her husband, and the mode of alienation of her property pointed out by the contract; and, afterwards, the husband bought other property with the proceeds of the wife’s separate property, and took the title by mistake in his own name, but on discovery of his mistake, conveyed the property by deed of trust to a trustee, and, by the deed of trust, recited the facts and gave the same power and control over the property that she possessed before marriage; it was held, that the deed of trust must be construed in connection with the marriage settlement, in order to ascertain the wife’s power over the property conveyed by it; she could not aliene or dispose of the property embraced in the deed of trust in any other mode than that designated in the marriage contract; and she might have enforced, had she been so disposed, a legal title in herself to the land embraced in the deed of trust, and held it as she held her other property under the marriage contract.
    Where, therefore, under the marriage contract, the wife’s power to aliene was declared to be by deed signed by her, attested by two witnesses in her presence, and by her request; and she, in conjunction with her husband and the trustee in this subsequent deed of trust, executed a mortgage on the property embraced in the deed of trust, to secure a debt of her husband; and the mortgage was executed and acknowledged only in the ordinary mode; it was held, that it did not bind the wife’s property embraced in the deeá of trust, and could not be enforced against it.
    Where the first clause in a deed of marriage settlement gave the wife the power of disposition of her separate estate, and the second clause pointed out the mode of disposition; it was held, that the two clauses were not inconsistent with each other.
    On appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    The Agricultural Bank states, in its bill, that Samuel K. Montgomery, and Mary Ann Montgomery his wife, and Alexander K. Montgomery, on the 3d of May, 1840, mortgaged certain land and slaves to complainants, to secure the payment of three promissory notes of Samuel K. Montgomery, dated 20th May, 1840, and due over two and three years thereafter respectively, each for the sum of twenty-six hundred and eighteen dollars. That the notes are still held by the bank, and remain unpaid. The bill prays a foreclosure and sale. The mortgage was exhibited with the bill.
    The defendants demurred to the bill, and the chancellor delivered, upon the demurrer, the following opinion:
    
      This is a bill in the usual form for a foreclosure of a mortgage on some personal and real estate situated in the county of Adams. It appears, from the recitals of the mortgage, that it embraces the separate estate of Mary Ann Montgomery, and that it was made to secure a debt due from her husband to the Agricultural Bank. The husband, wife and trustee of the estate have all united in the mortgage. It is insisted, by the counsel for the demurrer, that a court of equity will not enforce a mortgage, made by a feme covert upon her separate estate to secure the debts of her husband, and especially if the bill does not negative the idea of coercion, and undue influence in the execution of the mortgage. No legal proposition has been more frequently, and none more thoroughly canvassed, than the rights and power of a feme covert over her separate estate. Without attempting to collate the numerous decisions upon the point, I think it may be confidently stated, that the weight of authority, both English and American, places a feme covert in regard to her separate estate, upon the same footing with a feme sole, and establishes her right to dispose of it for any legal purpose, and in any mode which is not expressly prohibited by the instrument creating the estate. This unrestricted right of disposition necessarily results from her separate right of property. She is as to that estate mi juris, and may make any disposition of it she chooses, which does not directly violate the terms of the instrument under which she acquired it. She may give it away, sell it, or mortgage it for the debts of her husband; and any such disposition will be sanctioned and enforced in a court of equity, unless it should be made to appear that it was effected through fraud or undue influence. She may do all this even without the assent and concurrence of her trustee, unless his cooperation is expressly required by the provisions of the deed. These principles are established by the following authorities, viz.: Allen v. Papworth, 1 Yes. sen. 163; Standford v. Marshall, 2 Atk. R. 68 ■ Grigsby v. Cox, 1 Yes. sen. 517, 518; Wag-staff v. Smith, 9 Yes. 520 ; Sturgis v. Corp, 13 Yes. 189; Damarest v. Wynlcoop, 3 John. Ch. R. 129 ; Vizonneau v. Pe-gram, 2 Leigh’s Rep. 183; Jacques v. Methodist Episcopal Church, 17 John, R. 548.
    
      I am of opinion, then, that it was perfectly competent, upon general principles, for Mrs. Montgomery to mortgage her separate estate for the debts of her husband, and that the mortgage should be enforced in equity, unless it was unfairly or fraudulently obtained; and the court will presume in favor of the bona Jides of the transaction, until some suspicion of unfairness is thrown upon it, as a ground of defence. It is not necessary that the complainant should allege that it was fairly obtained ; if it was otherwise, it devolves upon the defendants to show it by pleading and proof.
    The demurrer must be overruled, and the defendants required to answer within ten days.
    The defendants afterwards answered.
    Mary Ann Montgomery’s answer states, that on the 20th of August, 1832, she being a widow, made a marriage contract with her present husband, Samuel K. Montgomery, in which it was stipulated that her property should remain to her free from the control of her husband; and that she should have power, notwithstanding coverture, by will or by any instrument in writing, signed by her and attested by two witnesses, to dispose of said estate.
    . That S. K. Montgomery, after the marriage, purchased with her funds the land conveyed by the mortgage, which land was conveyed to him through ignorance or mistake. That when the legal effect of this mistake was ascertained, her husband being then nearly unembarrassed, and able to pay all his debts, executed a conveyance in favor of Alexander Montgomery, in trust for her separate use of this land, and divers slaves and choses in action; and thereby gave her such power and control over the same, as she possessed before marriage.
    This deed of trust enumerates various choses in action, which were transferred by it, the proceeds of sale of her separate pio-perty ; some of which, the answer states, her husband, with her consent, has used ; the rest she has been unable to collect, and has little or nothing left except the property mentioned in the mortgage. When she entered into said mortgage, she felt able and willing to discharge the debt, and would have done so but for the ruinous losses she has sustained ; and only interposes these obstacles to obtain time to recover the money due her, when she will pay the debt.
    She states she is advised that by this deed and the marriage contract, she had a use in the land and slaves mortgaged, for life, with contingent remainder in fee, with power to dispose of the same by will, or writing attested by two witnesses, and not otherwise; and that she had no estate or interest in the land or slaves subject to be mortgaged, in the mode in which mortgage was executed. And that neither her husband nor Alexander Montgomery had such interest or powers over the land and slaves, as authorized them to mortgage the same, and the mortgage was therefore void.
    Samuel K. Montgomery admits the mortgage, and that the debt intended to be thereby secured was bona fide, and his own. debt; that when he gave the mortgage, he informed the complainants fully of the condition of the title, and offered to exhibit the deeds ; that he knew he had no authority to mortgage, but believed the trustee had.
    Alexander Montgomery’s answer states that he had not, nor has he now, any interest in the land and slaves contained in the mortgage; that all his rights and powers appear by the deed of trust. He joined in the mortgage at the request of Samuel K. Montgomery, without reflecting that he had no 'power to charge the estate for his benefit. He is now satisfied he had no such power, and that the act is a mere nullity, and submits to the court whether the mortgage derives any validity from being executed by him.
    No proof was taken on either side. The marriage contract and deed of trust were filed with Mrs. Montgomery’s answer. The former was as follows, viz. :
    
      “ This indenture made and entered into this the 20th day of August, 1832, between Samuel K. Montgomery, of the county of Claiborne, and state of Mississippi; of the one part, and Mrs. Mary Ann Alexander, of the parish of Concordia, and state of Louisiana, of the other part; wiinesselh, that whereas a marriage is shortly intended to be solemnized between the parties above-mentioned, in the county of Woodford and state of Kentucky, and in consideration thereof it is agreed between them, that the whole of the property, real, personal or mixed, possessed by and belonging to, or in anywise accrued or accruing to the said Mary Ann Alexander, before the said marriage, shall remain to her free from the control of the said intended husband after the said marriage, and in all respects shall be under the control and power of the said intended wife, to sell, devise and dispose of at her will and pleasure, notwithstanding the said coverture.
    “ Now this indenture doth testify, that the whole of the property in lands, slaves, goods and chattels, real, personal and mixed, of the said intended wife, and to her of right belonging, before and at the sealing and delivery of these presents, shall be and forever remain to her own sole use and behoof, and under her entire control and power, to sell, dispose of, or devise in any way she may deem proper, free from all let, molestation, or hindrance of the said intended husband ; and that, the said intended husband doth hereby, and by these presents release and convey to the said intended wife, all interest, right, claim or control which he might acquire of, in and to the property aforesaid, either in law or equity, in consequence of the said intended marriage; and that the said intended wife shall have power, notwithstanding her coverture by last will and testament, or by any instrument in the nature of a last will and testament, or by an instrument in writing signed by her, and attested by two witnesses in her presence, and by her request, to dispose of any or all of the said estate, lands, tenements, slaves, increase of slaves, goods, chattels, or any part or parcel thereof, in fee or for any shorter or lesser estate, as fully as if she were a feme sole. And this indenture further witnesseth, that the said Montgomery agrees to, and doth hereby invest with and convey to the said intended wife, a community and an equal interest in all the property, real, personal or mixed, held or acquired by the said Montgomery during the lives of the parties thereto; and in the event that the said intended wife should survive the said Montgomery, then that the whole of the property, real, personal and mixed, owned by the said Montgomery at the time of his death, shall descend and belong to the said intended wife, unless there should be issue living by the said marriage, at the time of the death of the said Montgomery, in which event the property last mentioned is to be equally divided between said issue and said intended wife. In witness whereof,” &c.
    The deed of trust, dated the 20th of March, 1837, was between Samuel K. Montgomery, of the first part, Alexander Montgomery, of the second part, and Mary Ann Montgomery, of the third part, and recited as follows, viz.: “Whereas, by a certain deed of marriage settlement, made and executed on the 20th day of August, A. D. 1832, between said Samuel K. Montgomery and Mary Ann Alexander, now Mary Ann Montgomery, previous to and in contemplation of the marriage, shortly afterwards consummated and solemnized between them, &c., it was stipulated and agreed upon. [Here the marriage settlement was recited.] And whereas, doubts, fears and misapprehensions may exist or arise in reference to the rights of said Mary Ann, &c. (Here the deed of trust recites doubts and difficulties that might arise as to the construction of the rights of Mrs. Montgomery, on a sale by her; and her right to acquire and hold property in her own name, the change of residence of the parties and other causes ; and recites that, whereas it was possible that difficulties growing out of these and other matters, might cause the title to be wrested from the control contemplated by the marriage settlement.) “And whereas, the said Samuel K. and Mary Ann Montgomery are desirous to strengthen, confirm and carry out and perfect the provisions and conditions contained in the said marriage contract, and in the several deeds, conveyances, bills of sale, and title papers predicated thereon, agreeably to the original intention and wish of the parties at the time, and as herein more fully explained.”
    The deed proceeds to state the duty and obligation incumbent on Samuel K. Montgomery, in good faith and morals and honor to secure the property of his wife to her, and a home to her, and to place her above want; and that the property about to be conveyed was in her possession, and the title certainly either in her or him.
    
      “Now, therefore,’' (pioceeds the deed) “for the reasons aforesaid, and considering the uncertainty of life, the mutability of all things, and to definitely designate, identify, and establish the rights, claims, dues and demands of the said Mary Ann Montgomery, under said coverture and marriage contract, and accrued and accruing to her use otherwise, the said Samuel K. Montgomery, with the knowledge and assent of the said Mary Ann, and for the further consideration of one dollar, &c. doth hereby give, grant, bargain, sell, convey, assign, transfer, relinquish, set over and confirm to the said Alexander K. Montgomery, his heirs, &c. in trust, for the only separate use, benefit, advantage and behoof of the said Mary Ann Montgomery, all his right, &,c.” (Here the deed proceeds to describe the property conveyed, consisting of a legacy of five thousand to the wife, various notes, choses in action, real and personal property, including that conveyed in the mortgage to complainants, and which is described in the deed as having been “ purchased with the means of said Mary Ann.) “ To have and to hold all the property herein described to the said Alexander Montgomery, his executors and administrators in trust, as aforesaid, together with the reversions, remainders, rents, issues, income and profits, upon these trusts following : ” (The deed here proceeds to enumerate the trusts, the substance of which will be briefly stated; 1st, That Mrs. Montgomery should retain possession; 2d, That the survivor of husband and wife should become seized of, inherit, derive, and acquire, absolutely in the survivor’s own right, all the right, title, &c. of the deceased, to all the property, whether contained in the marriage settlement or this deed; 3d, That the trustees should faithfully discharge his duties, and 4th, Receive a reasonable compensation; 5th, Might resign on certain terms; 6th, On request of the parties be superseded; 7th, The provisions of the deed to cease on the death of either party, husband or wife ; 8th, That the construction of the deed was to be most favorable to Mrs. Montgomery and against the grantor. The deed was witnessed by two witnesses, signed by all the parties, and duly acknowledged.
    
      The chancellor, when the case was submitted to him, upon this state of pleading and proof, delivered this brief opinion :
    
      “ I have heretofore decided on demurrer in this case, that it was competent for a feme covert to bind her separate property for the debts of the husband. It is now objected, that her conveyance is not valid, because not in accordance with the forms and solemnities prescribed by the articles of marriage settlement. To this there are several answers. 1. That the first part of the deed gives a general and unrestricted power of disposition, the latter part, which attempts to restrict her right of disposition to a particular form is inconsistent with and repugnant to the prior clause on the subject, and is, therefore, upon familiar principles of construction, overruled.
    “ 2. But even where a particular mode of disposition is pointed out, yet she may dispose of it in any other mode, unless there be negative words restricting her to the very mode pointed out in the deed. See Jacques v. The Meth. Epis. Church, 17 John. 548; 2 Gill & John. 1, where, upon elaborate examination of the English authorities, this proposition is laid down as the result.
    “ 3. It is at most but a defective execution of the power in mere matter of form, and nothing is clearer upon authority than that a court of equity will aid a defective execution of a power, that is, hold it to be good, where such execution was made upon a valuable consideration, as is the case here.
    “I think the complainant is entitled to a decree of foreclosure of the mortgage.”
    The decree to foreclose was accordingly entered; and the defendants appealed. '
    
      Montgomery and Boyd, for appellants,
    cited Williams v. Coussmaker, 12 Ves. 136; 1 Wils. 88 ; Battersbee v. Farrington, 1 Swanston, 106 ; 1 Story’s Eq. 365, 366; Clancy’s Rights of Mar. Worn. 545; 1 Sim. & Stu. 363; 1 Eng. Con. Ch. Rep. 186 ; 2 Jac. & Walk. 456; 4 Bro. Ch. Cas. 483; Turner’s Dig. 76, § 11; Toulman’s Dig. 244; How. & Hutch. 247, § 19 ; lb. 86, §§ 2, 3; 3 Paige Ch. Rep. 117; 1 Ves. Sr. 299; Sugden on Pow. 113-120; lb. 209, 210; 7 Taunt. 360; 17 Yes. 454; 1 Eng. Com. Law Rep. 133; Jaques v. Meth. Epis. Church, 3 John. Ch. R. 77; Ewing v. Smith, 3 Dessaus. R. 417; Jackson v. Hobhouse,'2 Meriv. R. 483; Morgan v. Elam, 4 Yerg. R. 375; Kent’s Com. (ed. 1844) 164-8; Lancaster v. Dolan, 1 Rawle’s R. 231; Doty v. Mitchell, 9 S. & M. 435; Williams v. Claiborne, 1 S. & M. Ch. Rep. 355 ; 1 Story Eq. 181-193; 2 Story Eq. 607, 608, 617-624; James et ux. v. Fisk, 9 S. & M. 144; Thompson v. Blair, 3 Mer. 583; 15 John. R. 555 ; 2 C. C. E. 326 ; 2 Powell on Mort. 561-2; 10 John. Rep. 374; 1 John. Ch. R. 299; Sugden on Yend. 544-5 ; 7 S. & M. 488.
    
      Eustis, for appellees,
    cited the opinions of the chancellor, and the authorites cited ; Rev. Code, p. 457; Sugden on Pow. 117 ; Hele v. Bond, lb. App. 5; Doe v. Jones, 10 Barn. & Cress. 459 ; 2 Sug. on Pow. 33.
   Mr. Justice ThacheR

delivered the opinion of the court.

The bill of complaint filed in the superior court of chancery avers that the defendants, on the 3d day of May, 1840, executed a mortgage to complainant to secure the payment of three promissory notes of the defendant, Samuel K. Montgomery. The answer of the defendant, Mrs. Montgomery, avers that on the 20th day of August, 1832, she, being then a widow, made a marriage contract with Samuel K. Montgomery, now her husband, by which her property was stipulated to remain to her, free from the control of her husband. It further avers that the husband purchased the land conveyed in the mortgage with the funds of the wife, and by mistake took a conveyance to himself as agent of his wife; but upon discovery of this error, the husband made a conveyance of said land to Alexander Montgomery in trust, for the separate use of the wife, together with divers slaves, and other property , and by the conveyance giving to the wife such power and control over the property as she possessed before marriage. It further avers, that at the time the conveyance in trust was made, the husband was comparatively but little embarrassed in his circumstances.

This case will be found not to differ in the principles upon which it must turn, from that of Minerva Doty et al. v. William S. Mitchell, decided at the present term of this court. 9 S. & M. 435.

The land, which was the subject of the mortgage, was purchased with the proceeds of the separate property of the wife. The proceeds of the separate property were secured to the wife by the marriage settlement. The deed of trust, which was designed by the husband to correct the mistake in taking the conveyance of the land in his own name as agent for the wife, must be considered in connection with the marriage settlement, to arrive at the wife’s power over it. The deed of trust refers to the marriage settlement as one of the moving causes of its execution. It was established to fix in Mrs. Montgomery more firmly the equity which she already possessed in the land, from its purchase with funds derived from her separate estate. In fact, she was entitled to receive even the legal title, and possibly might still enforce this right. At all events, under the decision before referred to, she could not divest herself of her interest in the land, such as it was, except in the mode pointed out by the settlement.

The marriage settlement contains, first, a power of disposing of the property so secured; and, secondly, the manner in which that power shall be executed. The second clause does not restrict the right of disposition, but simply points out the mode in which the right shall be exercised. The two clauses are compatible and not inconsistent with each other.

The form of disposal required by the settlement is by an instrument in writing, signed by the wife and attested by two witnesses in her presence, and by her request. Upon this subject, it is sufficient to add to what has already been said in the case of Minerva Doty et al. v. William S. Mitchell, that the wife derives her power to dispose of the property, not from the law or statute, but from the settlement. Although, under the statute, an acknowledgment of a conveyance is equivalent to the attestation and proof by two witnesses, and even by one witness, by the decision of this court, such is not the law governing the disposal of the separate property of a feme covert. She derives her power from the exception she herself makes by the settlement, and she must pursue the mode she has appointed for the exercise of the power.

The decree must be reversed, the demurrer allowed, and the bill dismissed, but without prejudice to any rights that Samuel K. Montgomery may possess by virtue of survivorship of his wife.

Counsel for the appellees applied for a re-argument; but the application was denied.  