
    
      Doe on dem of DAVID W. BARNES v. ROBERT HAYBARGER.
    Where the intention of the parties to a deed is manifest on its face, the Court in giving a construction to doubtful provisions, will, .if possible, effectuate such intention.
    Where a wife, after marriage, suppossing the whole interest in her land was in her, made a conveyance to a trustee for her sole and separate use, to which the husband signed as a party, and by various clauses manifested a concurrence in her act, but did not profess directly to convey any estate, in which deed, it •is recited that ten dollars was paid by the trustee to the wife, it was Held that this raised a use from the husband to the trustee, which was executed by the statute, and in that way the husband’s interest passed to the trustee.
    This was an action of ejectment, tried before Bailey, J., at the last Fall Term of Wilson Superior Court.
    The only question, in this case, arises oh the following deed: “ An indenture tripartite made and entered into this 4th day of August, 1858, between Robert Haybarger of the first part, Nancy Haybarger of the second part, and David W. Barnes, of the third part, all of the county of Wilson, and State of North Carolina: Whereas, the said Nancy Haybarger is seized and possessed of certain lands tenements and berreditaments, situate, lying and being in the county of Wilson and State aforesaid ■: Whereas, it is agreed upon by and between the said Robert Haybarger and Nancy Haybarger; that the said Nancy Haybarger should, notwithstanding, have, hold, enjoy and possess all her said property above described, with all and every the rights, interest and profits of, to and out of the same, free and separate from all the claims and demands of the said Haybarger arising from the consummation of their marriage, and whereas the said Nancy Haybarger might, in the perfecting their marriage, be entitled to by virtue of dower or in any other way whatsoever. Now, this indenture witnesseth, that in consideration of the said marriage, and in pursuance and perfecting of the said herein-before mentioned agreements, and in consideration of the sum of ten dollars, good and lawful money of North Carolina, to the said Nancy Haybarger in hand paid by the said David W. Barnes, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged. She, the said Nancy Playbarger, with the consent and approbation of the said Haybarger, testified by his being a party to and sealing and delivering these presents, hath bargained, sold, assigned and transferred and set over, and by these presents, doth bargain, sell, assig-n, transfer and set over unto the said D. W. Barnes, his executors, administrators and assigns, all the property belonging to, and in possession of, the said Nancy Haybarger, both personal and real, consisting of one house and lot, situate, lying and being in the county of Wilson and State aforesaid, near the rail-road at Joyner’s depot, adjoining the lands of W. G. Sharpe and others, one negro woman, Matilda, and child, Caroline, and increase, household and kitchen furniture, consisting of three feather beds and furniture, fourteen chairs, one chest, one trunk, one buggy and harness, one safe, one cooking stove and fixtures, to have and to hold the said property hereby conveyed unto the said David W. Barnes, his executors, administrators and assigns. But, nevertheless, upon the trust and for the intent and purpose hereinafter expressed and declared of and concerning the same, that he, the said D. W. Barnes, his executors, administrators and assigns, shall hold and manage the said property, and all and every part and parcel thereof to and for the sole and separate use, benefit and disposal of the said Nancy Haybarger, their marriage notwithstanding, and that the same, in no manner whatsoever, shall be subject to the direction, control or disposition of the said Robert Haybarger, her intended husband, or be liable for his debts; and upon this further trust, that he, the said D. W. Barnes, his ■executors and administrators shall and will pay, transfer and deliver unto the said Nancy Haybarger, or unto such person ■or persons, and at such time or times, and in such proportions, ■manner or form, as she, the said Nancy Haybarger, may direct, by her request or order, made in writing, attested by three or more credible witnesses, all the rents, issues and profits of the said property so conveyed as aforesaid, and that all the said separate and distinct estate and produce and increase thereof shall be had, taken, held and enjoyed by such person and persons, and for such use and uses as the said Nancy Haybarger shall at time or times hereinafter, during her life, limit, devise or dispose of the same, or any thereof, either by her last will and testament, in writing, or by any other writing whatever, signed with her hand, in the presents of three or more credible witnesses, or certified by an acting justice of the peace of Wilson county, State of North Carolina, and the said R. Haybarger, for himself, his executors, adminintrators covenant, agree and promise to and with the said E>. W. Barnes, ¡his executors, administrators or assigns, by these presents, in manner following: he, the said R. Haybarger, shall and will permit and suffer the said Nancy Haybarger to give, grant, and ■dispose of her said separate estate as she shall think fit in her life-time, and to make such will, or other writing, as aforesaid, and thereby give, order, devise,-limit and appoint her said separate estate to any person or persons, for any use, intent or purpose whatsoever, and that he, the said Haybarger, shall, and, will permit, and suffer such will or other conveyance, in writing, to be duly proven, as the law has made and provided in such cases, and the probate of such will, or other conveyance, to be taken and had in such cases as is usual and customary, and also allow the executor, named, to proceed to discharge his duty, and that the person or persons, to whom the said Nancy Haybarger shall give or dispose of any part of her said estate, by her will, or any other writing, that shall be signed, sealed and executed by her as aforesaid, shall and lawfully, may peaceably and quietly have, hold, use, occupy, possess and enjoy the same, according to the true meaning of such gift or conveyance, devise or appointment, without any hindrances or interruption, by the said Robert Iiaybarger, or his executors, administrators or assigns, or any of them; and that he, the said Iiaybarger, shall and will, from time to time, and at all times, upon any reasonable request, and at the proper cost and charge of the said D. W. Barnes, or his executors or administrators, make, do, and execute all and every such further act and acts, and thing and things, for the better settling, recovering, and receiving money, goods, and the estate of the said Nancy Iiaybarger, allotted and allowed for her support, use, benefit and disposal as aforesaid, as by the said D. W. Barnes, or his executors and administrators, them or any of their counsel, learned in the law, shall be reasonably devised, advised and requested.
    Witness, whereof the said parties have hereunto set their hands and affixed their seals, the day and year above written.
    R. II. Haybargbr, [seal.']
    
    Nancy ITaybarger, [seal.']
    
    D. W. Barnes, [seal.^
    
    This deed was executed after the marriage, and the only point in the case is, whether it passed the legal estate in the land to the trustee, Barnes, and it was agreed, that if his Hon- or should be of opinion with plaintiff, on this point, that judgment should be entered for the sum of $-, but otherwise, the judgment should be for the defendant.
    On consideration of the case agreed, the Court give judgment for the defendant, and the plaintiff appealed.
    Strong, for the plaintiff.
    
      Dortch and Lewis, for the defendant.
   Battle, J.

The indenture, upon the proper construction, of which this controversy depends, was manifestly framed upon the idea of a settlement of the wife’s estate before marriage, to her sole and separate use; the execution of it, by the husband, as a party, being intended to show that it was done with his approbation, and, therefore no fraud upon his marital rights. Upon that supposition, there were, very properly, no words of conveyance from the husband, because, had the marriage not been consummated, he would not have had any interest in the estate to be conveyed. But in fact, the parties were married at the time when the instrument was executed, and the husband had a legal interest in the wife’s land; but, that fact did not alter the manifest intention of the husband and wife, to convey her estate to a trustee, for her sole and separate use. The question is, can the deed, by any fair rules of interpretation, be construed to transfer the husband’s interest in the land to the trustee, and thus give effect to that intent, or, in failing to do so, must the purpose to- provide a seperate estate for the wife be, almost, if. not entirely defeated ? The intention of all the parties to the deed, being clear, beyond all doubt, upon its face, we have the highest authority for saying, that it ought, if possible, to be effectuated. In Smith v. Parkhurst, 3 Atk. Rep. 135, Lord Chief Justice Willes said, “Another maxim is, that such a construction should be made of the words of a deed, as is most agreeable to the intention of the grantor; the words are not the principal thing in a deed, but the intent ánd design of the grantor; ■we have no power, indeed, to alter the words or to insert words which are not in the deed, but we may and ought to construe the words in a manner the most agreeable h> the meaning of the grantor, and may reject any words that are merely insensible. Those maxims my Lords! are founded upon the greatest authority, Coke, Plowden and Lord Chief Justice Hale, and the la-w commends the astutia — the cunning of Judges in construing words in such a manner as shall best answer the intent; the art of construing words in such a manner as shall destroy the intent, may show the ingenuity of, but is very ill becoming a Judge.” In the case before us, the husband and wife are both named in the deed as parties thereto, and both executed it, and it was the intention of both, as expressly declared, that the wife’s land should be conveyed to the trustee. Under a mistaken supposition that the sole interest was in her, tlie granting words purport to be from her alone, but the law will allow them to operate on his interest, if it be possible to give them that effect; thus, in one instance out of many which might be cited, there was an instrument, which purported to be a release, grounded on a lease for a year, but there was not any- evidence of the lease, and the deed was in consideration of money, and of marriage theretofore had, &c., and Lord Haedwioke held that the deed might operate as a covenant to stand seized ; Brown v. Jones, 1 Atk. 190. In 2 Shep. Touch. 514, (see 31 Law Lib. 403,) it is said that,, “ the mere circumstance that the party intended to pass the-property in another manner, is not always decisive of the effect of an instrument. The rule eum quod ago, non valet ut ago, valeat quantum valere potest interferes with the mode and directs its force to the effect, and, therefore, it seems necessary to discard the intention as to the mode and resort to- the-general intention ; therefore,. whatever may be the words, the instrument will operate according to the effect which the-parties intended to give to it.” The learned author adds that “ this position necessarily admits of the exceptions which arise-from instruments requiring- particular circumstances to give-them operation.” These exceptions, however, do not apply to the present case, and we shall not give them any further-notice.

In the instrument, now under consideration, the intended ■mode of its operation was to transfer the land to the- trustee-from the wife, because she was supposed to be solely seized of it, but to give it complete effect, the interest, which the-husband actually had in the land, must also be transferred to-the trustee. The instrument is a deed of bargain and sale, which, it is well known, operates by having an use first raised upon a valuable consideration, and then, by the statute-of uses transferring the possession to the use raised and declared in favor of the bargainee See 1 Saunders on Uses and Trusts, 49, 79, 80. In the present deed, the ten- dollars recited as paid to the wife, was, in legal effect paid also to the husband, so that a use was raised from him, and it was declared in favor of the bargainee, Barnes, by the wife for her husband, as expressly authorised by him in the same instrument. In this way, his interest in the land, was as effectually conveyed to the plaintiff, in this suit, as if it had been done directly and in express words: see Cobb v. Hines, Busb. Rep. 343.

The cases of Kerns v. Peeler, 4 Jones, 226 ; Gray v. Mathis, 7 Jones, 502, and the other cases therein referred to, which are relied upon by the defendant’s counsel, are not at all opposed to this construction. In Kerns v. Peeler, the name of the wife was not inserted in the deed from her husband as a party to it, and she did not sign and seal it, until long after it had been delivered by the husband. In Gray v. Mathis, the name of the husband was not contained in the instrument executed by his wife, so that he was not a party to it, notwithstanding his having added his signature and seal to those of his wife. The same remark is applicable to the other cases referred to in those : but in the case now before us, the husband was named in the deed as a party, and executed it as a party, which makes an essential difference between it and the other cases. The judgment must be reversed, and a judgment must be entered upon the case agreed for the plaintiff.

Per Curiam,

Judgment reversed.  