
    *Poindexter & Wife v. Jeffries & als.
    July Term, 1859,
    Lewisburg.
    1. Wife’s Equity — Principles Applicable. — The principles applicable to a wife’s right to an equitable settlement out of her property, stated.
    2. Same — Real Property Subject to.t — Real, as well as personal, estate is subject to the wife's equity.
    3. Same — Settlement—Amount. † — The settlement should be reasonable and adequate; and may be of a part or the whole of the property, according to the sound discretion of the court, upon all the circumstances of the case.
    4. Same — When Settlement to Take Effectt — If the husband lives with and supports his wife, the settlement may he made to take effect when he ceases to do so, or at his death. But if he has deserted or ill treated her, or is insolvent, or nnable or fails to support her, it will be directed to commence immediately.
    5. Same — ’’Valuable Consideration for Post-Nuptial Settlement.-! — If property of the wife which a court of equity would direct to be settled . upon her, is conveyed by the husband to a trustee for her benefit, the court will sustain the deed against creditors of the husband.
    6. Same — Right to Settlement — Case at Bar.t — The wife’s portion as one of the distributees of her father, of his personal estate, though there are no debts or they are satisfied, and the administrator, who is also a distributee, files a bill for a distribution of the estate, and commissioners are appointed to divide the property, who make tile division, before the wife petitions for settlement, and although the division is afterwards confirmed, but subject to the future decision of the court upon her right, is not so vested in the husband as. to deprive her of her right to a settlement out of this property.
    7. Same — fLife Estate of Husband in Real Estate Descended Not Subject to.- — The wife’s real estate descended to her from her father, though undi-Tided, is immediately and before the actual entry upon possession of it by the husband, so vested in the luisl>a.iid to the extent of his life estate, as that Ule wife is not entitled to a settlement out of the life estate of the husband, though lie is insol-venland doing nothing to support her; and though advancements had been ma.de to the wife by her father in his lifetime, which render it necessary to resort to a court of equity for a settlement of accounts and for partition.
    In 1851 John Bowyer of the county of Rockbridge died intestate, leaving a large real and personal estate, *and a widow and eight children. One of his children was Frances H. the wife of George B. Poindexter. By deed dated the 29th of December 1851, and duly recorded on the 8th of January thereafter, Poindex-ter conveyed his interest in his wife’s undivided portion of the real estate of her father as one of his heirs, to Fielding B. Lewis her son by a former marriage, in consideration of a decree of said Lewis against said Poindexter for the sum of eight hundred and eight dollars and fourteen cents, with interest from the 1st day of June 1851. About the same time, or shortly thereafter, a bill was filed by the administrator, being also a distributee and heir, against the widow and other distributees and heirs of Bowyer, for partition of his real and personal estate; and on the 21st of September 1852, a decree for partition was accordingly made. Before that decree was executed, to wit, on the 20th of October 1852, Poindexter, by deed dated on that day and afterwards duly recorded, conveyed his interest in his wife’s portion of the personal estate of her father to William B. Poindexter and Fielding B. Lewis, trustees, for the sole and exclusive use of herself and her children. Shortly thereafter the commissioners appointed to divide the estate of Bowyer performed that duty, and made report thereof to court; from which it appears that the value of the distributive portion of each of the children, of the real and personal estate (except the dower slaves), including advancements, was eight thousand eight hundred and eighty dollars and two cents; and that the portion assigned to Poindexter and wife consisted of one hundred and forty-live and a half acres of land, valued at six thousand nine hundred and two dollars and sixty-two cents, and two slaves, valued at one thousand three hundred and fifty dollars ; which, with advancements made to them amounting to six hundred and fourteen dollars, and a balance of thirleen dollars and forty *cents, directed to be paid to them for owelty of partition, made up their said portion of eight thousand eight hundred and eighty dollars and two cents. On the 16th of April 1853 Mrs. Poindexter, by her next friend, filed a petition in the cause, praying that the portion of personal property constituting her distributive share of her said father’s estate, might be assigned to said W. B. Poindexter and F. B. Lewis, trustees in said deed of the 20th of' October 1852, in trust for the purposes expressed therein ; that such additional provision might be made for her out of the life estate of her husband in the real estate descended to her from her father, as the court might deem adequate; and for general relief. And on the same daj* the report of partition was confirmed; but subject, and ■without prejudice, to ihe rig'hts of the said petitioner to such future order or decree as the court might make upon said petition r and, in the meantime, Poindexter and wife were to hold said land and slaves allotted and assigned to them in said partition, subject to the future order or decree of the court in the premises.
    On the 21st of June 1851 a decree was cb- ' tained by F. B. Lewis against said G. B. Poindexter, and James M. Jeffries and John Pollard as his sureties, for the sum of two thousand nine hundred and seventy-five dollars and sixteen cents, with interest from the 1st day oí June 1851 till paid. And the sureties having satisfied the decree, had it duly registered for their benefit in the clerk’s office of Rockbridge county on the 30th of March 1852; and having on motion for that purpose, obtained a decree against G. B. Poindexter for the money paid by them as his sureties as aforesaid, they sued out a fi. fa. thereon, which was levied on one of the slaves allotted to Poindexter and wife as aforesaid; but the sale was suspended by an injunction awarded by the court in the said cause on the *llth of November 1853, on the petition of Poindexter and wife.
    In this state of things, the bill in this cause was filed in January 1854, by said Jeffries arid Pollard against F. B. Lewis, in liis own right, the said F. B. Lewis and W. B. Poindexter, trustees in the deed of the 20th of October 1852, and G. B. Poin-dexter and wife, stating the facts of the case, as viewed and deemed material by the plaintiffs, and praying that the said deed might be vacated and annulled, the said injunction dissolved, the said two slaves subjected to the execution of the plaintiffs, the life interest of G. IS. Poindexter in the laud assigned to his wife as aforesaid, and his interest in the dower slaves subjected to the claim of the plaintiffs, and for general relief.
    The answers of G. B. Poindexter and F. B. Lewis having afterwards been filed, and sundry depositions taken, the cause came on to be heard on the 18th of September 1855; when the court, being of opinion that Mrs. Poindexter’s right to a settlement out of the slaves and other personal property derived to her from her father’s estate was clear and unquestionable, and that the deed of the 20th of October 1852 was valid, to the extent of the value of her equity or right of settlement; but declining then to decide whether the said equity extended to her husband’s interest in her real estate; rejected the plaintiff’s motion to dissolve the injunction awarded on the 11th of November 1853, and directed a commissioner to enquire and report what settlement ought to be made upon Mrs. Poindexter and her children, and to make alternative statements, &c.
    The commissioner made a report showing, among other things, that Mrs. Poin-dexter derived from her father’s estate the land and two slaves before mentioned; that the land would rent for about three hundred ^'dollars per annum, and one of the slaves, a man twenty or twenty-one years of age, hired for one hundred and twenty dollars or one hundred and thirty dollars per annum, and the other, á woman eighteen or nineteen years of age, hired for about fifty dollars; that she had also in her possession three women slaves, with ten or twelve children, which had come to her as dower slaves in the estate of her first husband, but had been sold and were purchased and loaned to her by1' her son E. JB. Lewis, which slaves however were believed to be then unprofitable by reason of the number of children; that Poindexter and wife had two sons, ag-ed respectively eighteen or nineteen and sixteen or seventeen years, who were going to Washington college; and that Poindexter was engaged in no business to afford means of support for his family', and being wholly insolvent, his family were dependent on his wife’s means for a support.
    On the 18th of April 1856 the cause was again heard; when the court decided, that the said deed of the 20th of October 1852, conveying Mrs. Poindexter’s interest in the personal estate of her father to trustees for the benefit of her and her children, was not an excessive settlement under the circumstances of the case, but was fair and reasonable, and such as the court would have directed to be made; and the court therefore approved and confirmed the same and perpetuated the injunction aforesaid. But the court further decided, that the equitable right of Mrs. Poindexter to a settlement did not attach to her husband’s life estate in the one hundred and forty-five and a half acres of land assessed as her portion of the real estate of her father; but that said life estate is subject to the lien of the plaintiffs in virtue of the said decree obtained against G. B. Poindexter on the 21st of June 1851 for the sum of two thousand nine hundred and sixty-five dollars and sixteen cents, with interest thereon from *the 1st of June 1851; which said lien is, however, chargeable on said life estate, and to be ' paid out of the proceeds of the same ratably with a decree rendered by the same court, in the same cause and at the same time, in favor of E. B. Lewis for eight hundred and eight dollars and fourteen cents, with interest from the said 1st of June 1851 till paid; the court having previously decreed that the deed of the 29th of December 1851 conveying said interest from G. B. Poindexter to P. B. Lewis as aforesaid, is inoperative so far as it is in derogation of the plaintiffs’ right to participate pro rata in the lien of said decree. And the court therefore decreed that, unless payment should be made to the plaintiffs of the said sum of two thousand nine hundred and sixty-five dollars and sixteen cents, with interest as aforesaid and the costs of the suit, on or before the 1st day of July-next thereafter, the said life estate should be sold in the manner and on the terms mentioned in the decree.
    Prom this decree Poindexter and wife applied for and obtained an appeal.
    Michie, for the appellants.
    The Attorney General, Gordon and William Smith, for the appellees.
    
      
      Wife’s Equity — Valuable Consideration for Post-Nuptial Settlement. — See principal case cited and approved in White v. Gouldin, 27 Gratt. 505; Walden v. Walden, 33 Gratt. 88, 96, and foot-note.
      
      In Smith v. Bradford, 76 Va. 764, it was said; “It is settled law in Virginia that an insolvent husband may make a valid settlement upon his wife of his uncollected share of an estate of which he, in right of his wife, is a distributee. It was so decided in Poindexter and Wife v. Jeffries and Others, 15 Gratt. 363; and the correctness of that decision has never been, questioned.”
      See also, monographic note on “Fraudulent and Voluntary Conveyances.”
    
    
      
       See generally, monographic note on “Husband and Wife.”
    
    
      
       Same — Property Reduced into Possession by Husband. — In Ware v. Ware, 28 Gratt. 676, the court said: “The last point to be considered is, whether the appellant has a valid claim to a settlement upon her of the whole or any part of the fund. The rule on that subject in this state is settled under repeated decisions of this court. It is thus laid down in Poindexter v. Jeffries, 15 Gratt. 363-369. Whenever the husband, in right of his wife, has obtained possession of and title to her property, his own title jure mariti becomes complete, and the property to the extent of his title, is subject to his right of disposition, and to-the claims of creditors, like any other property of Ms otherwise acquired. And when the property, by being reduced into the husband’s possession, has once been released from the wife’s equity, it can never again be. subjected to it. If it be recoverable at law, and the aid of a court of equity be not invoked to recover it. her equity does not exist.”
      See the principal case also cited in Garland v. Pamplin, 32 Gratt. 314; Arnold v. Bunnell, 42 W. Va. 482, 26 S. E. Rep. 362; Persinger v. Simmons, 25 Gratt. 245.
    
   MONCURE, J.

This case involves the doctrine of what is familiarly called “the wife’s equity;” the origin and foundation of which are involved in much doubt, but which has been long and firmly established in England; 2Story’s Eq. 4 1402, 1407, &c.; and though but recently recognized in this state, is now well established here also. Gregory’s adm’r v. Mark’s adm’r, 1 Rand. 355; Gallego v. Gallego’s ex’or, 2 Brock. R. 285; Browning v. Headley, 2 Rob. R. 340; Dodd’s trustee v. Geiger’s adm’r, 2 Gratt. 98; James, &c. v. Gibbs, &c., 1 Pat. & Heath 277. I will not attempt to 'investigate it fully, but will state only so much of it as seems to be pertinent to the present case. The authorities on the subject are collected and commented on in 1 Lead. Cas. in Eq. Am. ed. 1859, top paging, 453-501.

The doctrine may be briefly stated thus: that a wife is entitled to an equitable settlement out of her property, not only against her husband, but against all creditors of, and purchasers from him, whenever it is recoverable only in a court of equity, or the aid of that court is actually invoked for its recovery; unless the husband has become a purchaser of the property by an antenuptial contract with the wife. If it be recoverable at law, and the aid of a court of equity be not actually invoked to recover it, her equity does not exist. And it ceases to exist, though the property be recoverable in equity, whenever it has been actually recovered or received without any claim by her to a settlement. Whenever the husband, in right of his wife, has obtained possession of, and title to her property, his own title jure marlti, becomes complete; and the property, to the extent of his title, is subject to his right of disposition, and to the claims of creditors and purchasers, like any other property of his any otherwise acquired. 2 Story’s Eq. ? 1403. If he or they have occasion to go into a court of equity for its assistance in regard to property to which his title has thus become complete; that court cannot, as the price of its assistance, impose upon him or them the terms of a settlement out of it on the wife. The relief sought in such a case, being due ex debito justitiaj, must be decreed unconditionally. It may be laid down as a universal rule, that when property, by being reduced into the husband’s possession, has once been released from the wife’s equity, it can never again be subjected to it. I mean of course the wife’s equity, technically so called; which overrides the claims of the husband “and all persons claiming under or against him. I Lead. Cas. in Eq- 468, 498. Property acquired by the husband jure mariti, like any other property of his, may become liable to the equitable claims oí the wife in a suit for a divorce a mensa et thoro, and perhaps in a suit for alimony. Id. 496-7. But such liability is subordinate to prior liens acquired under or against the husband.

It seems to have been at one time considered that real estate was not subject to the wife’s equity; and, at all events, that it was not so subject if it were not a trust estate, but one in its nature legal, which becomes from collateral circumstances the subject of a suit in equity; as where the legal estate happens to be outstanding in a mortgagee. But both of these points were decided affirmatively in the case of Sturgis v. Champneys, 5 Mylne & Cr. 97; reported also in 9 Law J. N. S. p. 100. In that case the wife of an insolvent was entitled for her life to real estate which had been devised to her without the intervention of trustees; but the legal title was outstanding in certain mortgages, and the assignee of the insolvent was obliged to file a bill to make his title (subject to the incumbrances) effectual. It was held by Lord Chancellor Cottenham (reversing the decision of the vice chancellor), that the wife was entitled to a settlement out of the rents and profits of the estate during the coverture. In Hanson v. Keating, 4 Hare, 1, 30 Eng. Ch. R. 1, Vice Chancellor Wigram, who had been counsel for the assignee of the husband in Sturgis v. Champneys, remarked, that prior to that case the opinion of the profession had, he believed, become settled, that estates in land were not subject to the same equity, upon the broad and important principle of preserving a strict analogy between legal and equitable estates in land. But, in deference to that judgment, he followed it, !‘although (he further remarked), “if that case were out of the way, I should probably have decided otherwise. There would be no difficulty (he said) in distinguishing the facts of this case from those in Sturgis v. Champneys; but the reasoning in that case would remain, and I cannot disregard it.” That case has al.so been followed by other cases, and its authority seems to be now fully established in England. Freeman v. Fairlie, 11 Jur. 447; Newenham v. Pemberton, 17 Law J. Equity N. S. p. 99; S. C. 1 D. G. & Sm. 644. I have seen no American case in conflict with it. In Hold’s trustee v. Geiger’s adm’r, 2 Gratt. 98, no question was raised as to the liability of real estate to the wife’s equity; but it was held not to be liable in that case, because the husband had the legal title arid possession. See also Van Duzer v. Van Duzer, 6 Paige’s R. 366; and Wickes v. Clarke, 8 Id. 161. In James, &c. v. Gibbs, &c., 1 Pat. & Heath 277, the Special court of appeals referred to and recognized the case of Sturgis v. Champ-neys, and decreed a settlement on the wife out of her real estate. It is unnecessary, however, in my view of this case, to decide the question, and I therefore express no opinion upon it, but will assume, for the purposes of the case, that the doctrine is alike applicable to real and personal estate.

As to the amount of the wife’s property to be settled; the general rule atone time was, to settle upon her one-half of the subject. 1 Roper on Husband & Wife 260; 1 Leading Cas. in Eq. edition of 1859, p. 483. But this is a matter in the discretion of the court, which will take into consideration the amount of the wife’s fortune already received by the husband, or any previous settlement which may have been made. Id. Accordingly, in Coster v. Coster, 9 Sim. R. 597, three-fourths of the fund was settled on the wife by Sir L. Shadwell, V. C. ; and in Napier v. Napier, 1 Drew. & Walk. 407, six hundred pounds out of a fund “'amounting to one thousand pounds, were settled on her by Ld. Ch. Sug-den. It has been said that the court will not, except perhaps under very peculiar circumstances, settle the whole of the property on the wife. And in Beresford v. Hobson, 1 Madd. R. 362, in which the master, upon a reference, had approved of the settlement of the whole, Sir Thomas Plumer. V. C., sustained the exception taken to the report; observing, after an elaborate review of the authorities, that the question in most cases had been, how much the wife should have; and in determining that, the court had exercised a discretion, and had no! tied itself down to any precise rule, but bad never given the whole. But the whole has been given in many subsequent English cases, which are cited in 1 Lead. Cas. in Eq. 485. The American cases seem to be to the same effect, many of which are cited in the notes of Hare & Wallace to that valuable work, p. 499. This court, in Browning v. Headley, 2 Rob. R. 340, gave the whole to the wife. The true rule on the subject seems therefore to be, that the settlement should be reasonable and adequate, and may be of part or the whole of Ihe property, according to the sound discretion of the court upon all the circumstances of the case. The usual practice is to refer it to a commissioner to enquire and report what would be a reasonable and adequate settlement. But the court may decide this question for itself, if there be sufficient material in the record for the purpose: and if it plainly appear that the whole property subject to the settlement is not more than adequate, a reference is of course unnecessary.

As to when the provision for the wife should take effect; this, also, is a matter of discretion with the court upon all the circumstances. If her husband lives with and supports her, it may be made to take effect when he ceases to do so, or at his death. But *if he has deserted or ill treated her, or is insolvent, or is unable or fails to support her, it will be directed to commence immediately. 1 Bead. Cas. in Eq. 499.

The wife’s equity is so substantial an interest that it will constitute a valuable consideration for a postnuptial settlement by the husband upon her (made .while the equity exists), which will be sustained against his creditors, to the extent of the equity, by a court of chancery. Id. 500. “The same circumstances which would induce the court (said the V. C. in Wikes v. Clarke, 8 Paige’s R. 166) to compel a settlement by the husband, or those claiming under him or in his right, will operate to uphold a deed of settlement already made, to the same extent that would be required if one should be directed to be made under the view of the court.”

The equity of the wife will be administered to her, not only in a suit in which the husband or his assignee is plaintiff, seeking the aid of a court of equity to recover her property; but generally, also, in a suit brought by her or her trustee for the purpose of asserting it. This was at one time doubted; it being supposed that the jurisdiction rested solely on the ground that he who asks equity should do equity; but it has long since been firmly established. 2 Story’s Eq. I 1414; 1 Roper on Husb. and Wife 260; Elibank v. Montolieu, 5 Ves. R. 737; Newenham v. Pemberton, 17 Law J. Equity N. S. 99; 1 Lead. Cas. in Eq. 468.

There seems to be one exception to this general rule, and that is, where the property is in its nature legal, but the aid of a court of equity is invoked for its recovery on some collateral ground of jurisdiction; as, in the case of a mortgage debt recovered in a foreclosure suit. There, the wife’s equity attaches solely on the ground that he who asks equity must do equity, and therefore cannot be asserted in a suit brought by her. 1 Roper on Husb. and Wife 258, 260.

'x'The argument of the counsel for the appellees, that the doctrine of the wife’s equity, recognized and acted on by this court, is that which had been settled in England at the time of the establishment of our chancery court, and that we must therefore look only to the English decisions prior to that time to ascertain the law upon the subject, is, I think, untenable. The subsequent English decisions are, of course, not binding upon us; but they are entitled to great respect, and at least as much on this question as on any other.

Having stated so much of the doctrine as seems to be pertinent, I will now endeavor to apply the law to the facts of this case.

There can be no question but that the doctrine applies to Mrs. Poindexter’s portion of her father’s personal estate. That estate at his death devolved on his personal representative. His distributees at law, of whom she was one, could recover it only in equity. She asserted her claim to an equitable settlement out of her distributive portion before it was received or recovered by her husband, and before the report of partition of the estate was confirmed by the court. And though the report was confirmed and her portion received before the decree sustaining the settlement which had been made upon her by her husband, yet the confirmation was expressly subject to the future order or decree of the court upon her petition for a settlement which she had previously filed. The deed of settlement of the 20th of October 1852 was certainly executed before her husband received possession of her portion or any part of it; and that settlement, having afterwards been sustained by the decree of the court, is valid (if properly sustained), notwithstanding possession of the property was received be-tweeen the dates of the deed and of the decree. The argument of the appellee’s counsel, that the administrator of Bowyer, being also one of his distributees, by bringing *the suit for partition, elected thenceforward to hold the subject as distributee and not as administrator ; that the possession of one parcener is the possession of all; and that therefore Poin-dexter was in possession of his wife’s portion of the personal estate before she claimed her equity, cannot be sustained. The administrator did not cease as such to hold the personal estate of his intestate, so far as the record shows, until it was actually distributed; until which time it was assets in his hands, and he was not bound to distribute it without refunding bonds.

Nor can there be any doubt as to the propriety of the decree approving and confirming the said deed. The settlement thereby made was certainly not excessive, in view of all the circumstances of the case. And the husband being insolvent and unable to support his family, it was properly provided in the deed that the property should immediately enure to the benefit and maintenance of the wife and children. The deed may not be in such form as the court would have prescribed; but the wife being satisfied with it, and having petitioned for its confirmation, the court properly confirmed it, as it did not prejudice the rights of the husband’s creditors.

Then as to the real estate: Was the wife entitled to an equitable settlement out of her husband’s interest in that estate (assuming the doctrine to be applicable to real estate)? She derived it by descent from her father, who at the time of his death was possessed thereof and had a legal title thereto. Her husband had no occasion to go into equity to obtain possession or complete his title. If any remedy had been necessary by reason of the act of a wrongdoer in taking or withholding possession, it would have been a legal remedy. But none was necessary. There was no interruption, either of the title or possession, both of which devolved at once upon the heirs at law of her ^father as coparceners. The possession oí one was the possession of all the coparceners. 1 Horn. Dig. 489, marg. And the seizin of one was sufficient to entitle the husband of another to be tenant by the curtesy. Id. 69, marg. | 14; 1 Bright on Husb. and. Wife, p. 117, ch. 10, | 1, Nos. 6 and 7. But here all were actually seized, so far as the record shows. Momentary seizin is sufficient to complete the husband’s title. id. No. 9. But in this case there has been no interruption of his seizin. A husband by becoming possessed of his wife’s freehold estate of inheritance during the coverture, acquires a freehold interest during their joint lives, if there be no issue of the marriage, and during his own life, if there be such issue. In the former case, he and his wife are seized in her right, and in the latter he is seized in his own right as tenant by the curtesy initiate, and may maintain an action in respect to his freehold interest in his own name only. Id, p. 112, ch. 9, No. 1, 6, 8 and 9. In both cases, his interest is unconditional and unencumbered, and is .subject to his right of disposition and liable to his debts. In this case, there being issue of the marriage, the husband became tenant by the curtesy intiate of his wife’s interest in her father’s real estate, and his freehold estate thus acquired is not liable to his wife’s equity. That such an estate is not so liable, necessarily results from principles before stated, and has been expressly decided, not only in New York; Van Duzer v. Van Duzer, 6 Paige’s R. 366; Wickes v. Clarke, 8 Id. 161; but also by this court; Dold’s trustee v. Geiger’s adm’r, 2 Gratt. 98. In the last mentioned case, Doló and: wife brought a suit to recover her share of her father’s real and personal estate on the ground that he had died intestate. After a protracted litigation, the intestacy was established and the plaintiffs succeeded. Pending the litigation the wife, by her next friend, filed a petition, praying that her share of the '^estate might be settled on her; and the husband by his answer assented. The Circuit court decreed accordingly ; but with a proviso that the rights of the husband’s creditors which ■may have attached upon the property before the execution of the settlement, should not be affected. The decree further confirmed a division of the real estate that had been previously made, and directed the wife’s share to be delivered to the trustee, to be held for her separate use. The suit for the account and distribution of the personal and profits of the real estate, thereafter proceeded. The result of the suit showed that the share of the wife, exclusive of her share of the slaves, amounted to about four thousand five hundred dollars, much the larger part of which arose from the rents and profits of the real estate, hires of negroes and interest on personalty accruing during the pendency of the suit; and that her share of the slaves was in value about two thousand seven hundred dollars. This subject was by the decree of the Circuit court charged with a debt of the husband due by judgment, amounting in the aggregate, at the date of the decree, to about one thousand five hundred dollars. The trustee of the wife appealed from the decree, which was affirmed by this court. Judge Stanard thus concluded his able opinion in the case, in which the other judges concurred: “In respect to the rents and profits of the real estate, he (the husband) was at law and in equity absolutely entitled to them. Of that real estate there-had been actual possession, by virtue of such actual possession by one or more co-parceners, and they were accountable at lau-to the husband for the rents and profits, and he might sue therefor without joining the wife. This subject ought to have been charged, though the principal of the distributable share of the personal estate should be protected in the hands of the' wife and her trustee by the relinquishment of the husband. To'’’the tenancy by the curtesy of the husband in the real estate, he had legal title; and that was clearly chargeable with his debts, irrespective of his voluntary surrender thereof to the wife.”

The husband’s title as tenant by the curtesjr having thus become complete, and not being liable to the wife’s equity while the estate was held in coparcenar3>, no slate of things which could afterwards arise could subject his interest to that equity. It then stood upon the same footing with his other property, and became alike subject to his right of disposition and the claims of his creditors. Therefore, he or his assigns or judgment creditors had a right to go into equity to have a partition of the real estate, and an allotment of his wife’s porfíen thereof; and his judgment creditors han a right to the aid of that court in enforcing the lien of their judgments by a sale of his interest, without being subjected to the condition of a settlement on his wife or any other condition whatever. A parcener acquires no new right, nor is his old right enlarged by a partition. He is entitled to a partition as a legal incident to his estate in coparcenary; and it is merely a different mode of enjoying the estate, to which he may resort at his election. While the estate is held in coparcenar3-, his seizin is of an undivided interest, and pervades the whole estate. After the division and allotment, his seizin is confined to his several share, but as to that, is exclusive. And so too a judgment creditor of the husband coming into equity to enforce the Hen of his judgment by a sale of an interest acquired by the husband in the wife’s real estate, is seeking no new right nor to enlarge an old one, but is merely pursuing a remedy expressly given him by law to effectuate a legal lien upon his debtor’s property. The wife having no inherent equity in such a case, can acquire none from the fact that she is a defendant to the suit. The *maxim that he who asks equity must do equity, does not apply to the case. Hanson v. Keating, 30 Eng. Ch. R. 1.

The wife’s equity attaches, as we have seen, only when resort must be, or is actually, had to a court of equity to reduce her property into her husband’s possession, or complete his title thereto, and not when resort may be had to that court for any purpose after such possession has been obtained and title completed. The Special court of appeals decided otherwise in James, &c. v. Gibbs, &c., 1 Pat. & Heath 277; but, with the highest respect for the opinions of that court, I must say that I think the decision contrary to settled principles of law, if not to the decision of this court in Dold’s trustee v. Geiger’s adm’r, supra. And I am confirmed in this view by the fact that one of the learned judges who concurred in the decision of the Special court, afterwards decided this case otherwise in the court below, and must therefore have changed his opinion.

But it is argued by the counsel for the appellants, that as advancements had been made by the intestate to his children in his lifetime, a resort to a court of equity was indispensable to settle an account of the advancements, and ascertain the share to which each of the children was entitled in the partition of the estate; and that -therefore the wife’s equity attached to Mrs. Poindexter’s share as well of the real as of the personal estate. I do not think this conclusion correct. Notwithstanding the fact that advancements happened, to have been niade to 'the children, the heirs had a legal title to, and were in possession of the inheritance to the extent of their respective interests, from the death of the ancestor. The title and possession of each parcener as to his undivided share was then complete. The occasion which afterwards arose to go into a court of equity for a partition of the estate *and an allotment of the several portions, cannot affect or impair the right of any person concerned. The account of. advancements is a mere incident of the partition, affecting of course the extent and amount of the several portions, but not the title of the parceners. The distinction is between going into equity to complete the husband’s title, and going there for some purpose in regard to the property after the title is completed. In the former case, the wife’s equity attaches; in the latter, it does not. Going into a court of equity for an account of advancements and partition of real estate descended and in possession of the heirs, is a case of the latter kind. And so is going there to enforce a judgment lien upon a'husband’s interest in his wife’s portion of the estate.

It is further argued, that it does not appear of what the advancements consisted, whether of real or personal estate; and that Poindexter and wife may have been entitled to more personal, and less rea^estate than they received in the division. See Code, p. 525, ch. 123, § 15. The answer to this argument is, that the partition was fairly made, was not excepted to, and has been confirmed by the court. It must therefore now be considered that they received their due and relative portion of the real and personal estate.

I think there is no error in the decree of the Circuit court, and, am for affirming it.

The other judges concurred in the opinion of Moncure, J.

Decree affirmed.  