
    Womack, Adm’r, v. Womack.
    The statute which prescribes the mode of conveying the wife’s property does not expressly declare absolutely void any other mode of conveyance. It seems from its terms to have had but one object in view, and that was to secure the freedom of will and action on the part of the married woman; and where the proof is olear as to the freedem of will on her part, and the transaction commends it in point of equity to the conscience of the court, particularly if the party contracting with the wife cannot be restored to his former position, the conveyance will be sustained notwithstanding the want of a privy examination under the statute. (Note 80.)
    ‘The private property ol each partner in the matrimonial union must, as a general rule, bear its own charges and expenses.
    ' Any debt which is chargeable exclusively against the separate property of the wife may be discharged by her with the consent of the husband either out of the corpus or profits of said estate, and a conveyance of property for such purpose will be valid without a privy examination under the statute, if made voluntarily without imposition, although the debt should be barred by the statute of limitations at the timo of the conveyance.
    A married woman may be sued for the recovery of debts incurred for the benefit of her separate property. On proper application the court will order the execution in such cases to be levied first upon the profits, and if they be not sufficient, then upon the corpus of her estate; but without specific directions the lovy would be made and earned into effect on the property of the wife in the same mode in which executions against property are usually enforced.
    Informality in the execution of a deed of conveyance, as the want of a seal or the privy examination of a married woman, will not exclude it from being offered as evidence of the intention of the parties, but only imposes upon the claimant the necessity of proving all the facts which would entitle hitn to a conveyance, and the paper with such proof will be sufficient title to support an action or maintain a defense.
    "Where the plaintiff appealed and the defendant did not, the court said that they would have been better satisfied had the judgment been more favorable to the defendant; but since he had not appealed, it was not essential or necessary that the judgment should be disturbed.
    Although an infant may, on coming of age, affirm or disavowa conveyance of real estate made during minority, yot, as a general rule, he must restore the money or other property received as a consideration for said sale.
    A debt which is barred by the statute of limitations is a sufficient consideration to support a new engagement or promise. (Noto 81.)
    Appeal from Harrison. This was an action in the ordinary form for the recovery of a negro slave alleged to have been the property of the deceased intestate. The defendant, after demurring and pleading a general denial, pleaded further to the following effect, viz, that the said Ann Womack was, in her lifetime, about .December,' 1S-14, «¡siding in the State of Mississippi with lier then lawful husband, Jacob P. Womack; and that, in conjunction with her said husband, she thou and there received into their possession, as her separate property, about twenty-live negro slaves for life, by way of inheritance from the estate of a deceased brother; and that on the first day of'January thereafter, she and her said husband, being then upon the eve of emigrating to Texas with the said slave's, and needing the assistance of defendant'in said emigration, and also his services in overseeing and managing the said slaves of the said Ann in cultivating land upon their arrival in Texas, in consequence of her husband’s inability to discharge said duties by reason of his bad health, did, on the fust day of January, engage and employ this defendant for the purposes aforesaid, for the term of one year then next following from that date, at and for the price or wages of live hundred dollars for tito said year, and then and there entered into a written obligation, whereby the said Ann and the said Jacob agreed to pay to this defendant for’ his sendees the sum of five hundred dollars, "in consideration of which the said defendant served them well and truly for the time of one year from the said first of January, by reason of which the said sum of money became justly due to the defendant; and the defendant further pleaded that the said sum, with the into,rest, remained due and unpaid on the 8th day of January, 1S50, hut that the said Ann and her husband, being desirous to pay the same, with the interest, did then bargain, sell, and deliver to the said defendant the negro mentioned in plaintiff’s petition, in part payment of said sum of money, and executed their note to the defendant for the balance still due, and that' they then and there delivered to the defendant a certain instrument of writing, acknowledging that they had received from the defendant the said sum of four hnndred dollars in payment for the said slave, in consideration of which the defendant delivered up" their original writing obligatory. The defendant averred that four hundred dollars was a liberal price for said slave, being theu about fifty years of age; that, although there was no privy examination of said Ann, as prescribed by statute, yet that the said Ann, in conjunction with iter said husband, and with his knowledge and consent, executed the said instrument of writing by which they intended and thought that they had conveyed said slave freely, willingly, and without coercion or persuasion, and that the said Ann did not at any time thereafter show or express any regret at having so done, or any wish to retract the same, hut, upon the contrary, the said Ann intended by the, execution, in conjunction with her said husband, of the said instrument of writing to convey the said negro slave to the defendant, and did at all times from that day up to her death believe that she and her husband had fully conveyed said slave to t.he defendant, and was perfectly satisfied at having done so.
    The defendant further stated that the amount paid him by the said Ann and her husband was reasonable and proper, and that said services were of benefit to the said Ann, and necessary for the preservation of her separate property; and further, that the said Jacob P. was, outlie first day of January, 1845, and lias ever since continued to be, notoriously insolvent; that the said Aim, on that day and ever since up lo the (lay of her death, owned a large amount of separate property, atxl that said services were rendered alone upon the credit of the said Ann, and upon the faith that the said separate property of her, the said Ann, was liable for the payment of the same, all of which was fully known to aud duly considered by the said Ann, and her said separate property was intended by her, the said Ann, to be liable for the payment of the same. The defendant prayed that the property be decreed to be vested in him ; and if this were refused, that the administrator bo required to refund to the defendant the sum of four hundred dollars, the amount of the purchase-money, with interest, &c.
    The instrument referred to in defendant’s answer, as intended to convey to him title, was expressed as follows:
    “Harrison County, Texas. Received four hundred dollars in cash, paid me in hand from E. P. Womack, for a negro boy named Daniel, aged about fifty years. I warrant and defend the title of said negro, and to be sound in mind and body and slave for life, this the 8th January, 1850.
    (Signed) ANN WOMACK,
    Jacob P. Womack.”
    The plaintiff specially excepted to the last plea of defendant, and, by way of what was called a «‘plication, alleged several matters not necessary to he particularly noticed. Most of the facts replied had been stated by the defendant in his answer. The plaintiff also pleaded that the moneyed demand as set. up by the defendant was barred by the statute of limitations.
    
      On the trial it was admitted “that at the time oí the sale oí the negro to k o defendant the said Ann was a married woman; that she owned said negro ;u-her separate right; that she was not privily examined in regard to said sale, as prescribed by statute; that plaintiff is administrator of Ami; that defendant has possession of the negro, and he is of the value of four hundred dollars, and his hire per year is of the value of one hundred dollars; and it was further admitted that the facts set forth in defendant’s special answer are true.”
    The exceptions of plaintiff to defendant's answer were overruled; and a jury being waived, it was ordered, adjudged, and decreed that the plaintiff do-have and recover of the said defendant possession of the said slave named Daniel upon his, the said plaintiff, paying to the clerk of the court for the. use of said defendant the sum of four hundred dollars, and that the said defendant do have and retain possession of said slave until the said sum of four hundred dollars is so paid; and it was further decreed that the defendant do recover of the plaintiff his costs.
    The plaintiff moved for a new trial, and on the same being overruled gave notice of appeal to the Supreme Court.
    
      A. II. Wilson, for appellant.
    I. The hill of sale under which the defendant held the negro in controversy in this case not being executed as the law requires, Mrs. Womack, the plaintiff’s intestate, never parted with her property in the slave, but it remained in her until her death, when it, eo instantati, passed to her representatives. (Dig., art. 174; Callahan v. Patterson, 4 Tex. It., 01.)
    The court below was therefore correct in giving judgment in favor of the plaintiff for the negro; but was the court equally correct in overruling the exceptions taken to the special answer? — in making the payment of $400 by the plaintiff to the defendant a’ condition precedent to the delivery of the negro, and in not allowing anything for the use of his services? I think not,and will, in the first place, consider the merits of the answer under the three following questions: (1.) Can a feme covert under our law charge her separate property with the payment of an overseer’s wages? (2.) Can she charge, or to speak more correctly, can she recharge her property with the payment of a barred debt against it? And, (3.) If a husband and his wife sell or attempt to sell the wife’s property, but by reason of some defect in the instrument of conveyance, as the want of a proper acknowledgment, she never parted with the property and her heirs recover it, are they accountable to the vendor for the purchase-money?
    II. If the affirmative of the first question he true, it must he by virtue of that part of the marital-rite law of 1848 which makes the husband and wife liable to be “jointly sued for all expenses which may have been incurred by the wife for the benefit of her separate property.” The party seeking relief must bring bis case within the statute; for it is the American doctrine that a married woman having a separate estate is only a feme sole sub modo, (2 Kent., 160, n. a., and cases cited.) This is certainly true, in Texas; for here she has not that absolute dominion over her separate property that would enable her to act even-in England as a feme sole with refei’ence to it.
    The expense must be such as the wife can legally incur; hut she cannot employ a person to manage her separate property, because the husband has the absolute control and management of it during coverture, (Dig., art. 2421,) and she cannot therefore incur the expense. It is a duty and an expense which the law very justly throws upon the husband.
    The expense must also be such as is reasonable and proper that she should incur for the benefit of her separate property. (Dig., secs. 2423 and 2424.) But I would ask for whose benefit are the services of ail overseer? Are they not for the benefit of the husband ? The profits of the estate enter into the community fund or property, of which he lias the jus disponendi. It is not unlike a partnership in which one partner furnishes the capital and the other gives his services and carries on the business. An argument that the profits take the-character of separate property can have bnt little weight; for if a man has the right to use and enjoy properly as liis own and to dispose of it as lie pleases, lie will not dispute about the mere abstract title; he has all the rights and privileges incident, to ownership.
    If it is insisted that tlie services of an overseer were necessary to the preservation of the wife’s separate property, I will, for the sake of argument, admit it; but in doing so I do not admit tlie necessity of tlie charge, even if she had tlie power to make it; for if the number of slaves was sufficient to justify tlie •employment of an overseer, can it bo supposed that the services of one could not have been procured oil the credit of the products of their labor? But if not, the wife, could possibly have given a valid lien by duly executing a mortgage. If we so construe the law as to give her the power of charging in this sort of cases without a privy examination, as would he required in executing a •mortgage, we will put it in the power of the husband, against whose conduct it was a favorite object with the framers of our Constitution to guard his wife’s properly, to waste her large estate within a few years, hy making the corpus defray the expenses, and spending the profits in extravagance or in the purchase of other property, to his own interest and to the interest of liis heirs, hut greatly to the prejudice of liis wife and her heirs.
    III. The expenses as they are incurred become a charge on the property, not by virtue of any contract, for, as a feme covert, she is incapable of contracting, but as an appointment out of her separate estate. (2 Story Eq., sec. 380S).) it is the rendering of the services at her request (Dig., art. 2423) or the incurring of the expense that creates the charge, and which must he the basis of tlie party’s proceeding in ram for relief. Consequently, when the charge is barred, it is forever gone; it cannefc, ill the nature of things, be recharged, nor has she such a legal existence. as would enable her to make a written acknowledgment under the statute. 'This charge, if it even were one, •was barred at the time the bill of sale was executed.
    IV. I apprehend that if this suit was brought hy Ann Womack herself, and if the defendant had actually have paid the ptu-chase-money, she would not be required to refund it, for tlie obvious reason that her husband might have it and she could not do so, and he would be thus enabled, in effect, to convey her property without running tlie hazard of a privy examination. It would be nujust to require her heirs to refund it, for it is unreasonable to suppose that they will ever get it; bnt if they do, they will take it as common property, and not as the separate property of their mother.
    I will only add, in conclusion, (1.) That the negro belonging to the plaintiff in his representative capacity, the plaintiff lias the right to the immediate possession, unless tlie ends of justice would thereby be defeated. But this would not he the case here; for the estate is solvent, for aught that appears, and able to pay the defendant’s debt in due course of administration, if it be right to do so. (2.) Tlie plaintiff should have been allowed hire for the negro from tlie time suit was commenced. (Fishwick v. Sewell, 4 liar. & J., 393; Glas-cock v. Hays, 4 Dana, 8; Carroll v. Pathkiller, 3 Port., 279.)
    
      Clough and Lane, also for appellant.
    
      Wig fall and Ilyde, for appellee.
    I. There is no error in the proceedings of the court below of which the appel-•ant has any right to complain. If there is any error in the decree of the court below, it is tills, that it should, in tlie place of decreeing as it lias done, have either decreed that plaintiff take nothing- by his complaiut or that the title to said slave he vested in the defendant, because the contract of sale, though it ■may have been defectively and insufficiently executed, yet no beneficial effect ■can arise from a description of it; and it is a well-settled principle that ua contract will not be rescinded in equity where a rescission can have no beneficial effect.” (Huff v. Jennings, 1 Morris, 454. referred to in the 8th vol. U. S. Digest, p. 124, see. 121,) and, “ as between the parties to a defectively* •executed instrument, equity will regard it as valid according to the intent of the parties.” (White v. Denman. Í6 Ohio R., 59, referred to in tlie Stir vol. U. S. Dig'., p. 120, sec. 53.) And in this ease, notwithstanding tlie bill of sale may have been insufficiently and defectively executed, yet when.it was fully proven to the court that tlie intestate of plaintiff, by the execution thereof and by the delivery of the slave to defendant, not ouly intended thereby but actually believed that she did thereby vest the title in defendant, and not only did not thereafter retract or wish to retract the same, but was in reality always thereafter satisfied, even up to tlie day of her death, at having so done ; and when it was executed by her not only willingly but in payment of a just and proper debt that had been incurred by her in the preservation of her separate property, that any Court of Chancery, acting under aud governed by the broad and liberal principles of equity aud justice, would, under all the. circumstances, have been fully authorized to sustain said sale, and ought to have done so, and have decreed the title to defendant. For “ when the intention is palpable and the consideration has been paid, a contra,et will be so reformed as to conform to the-manifest intention of the parties.” (Webster v. Han is, 10 Ohio K.; 4Ired. Eq., 430, referred to in the Ü. S. Dig-., vol. 8, p. 120, sec. 05.)
    If there never had been any statute passed in this State regulating the manner by which married women may convey their separate property, a court of equity would, under all of the circumstances connected with this case, vest tlie title to tlie slave in the defendant. And before any statute of this State had been passed requiring conveyances of land to be in writing, a simple párol sale and delivery of possession by tlie vendor to the vendee of tlie land was sufficient to vest tlie title in the vendee. Tlie statute regulating tlie mode by which married women may dispose of their separate property, to say tlie most of it, does no more than impliedly prohibit, if it does even that, a sale otherwise than as prescribed by tlie same. The statute regulating conveyances of land not only requires that a conveyance shall be in writing, sigued, sealed, aud delivered, and attested by two witnesses, or acknowledged before some proper officer, but it expressly prohibits any other mode of conveying land from one to another; yet there is no principle better settled than this, that if one by parol sell to another a tract of laud, receive tlie consideration money, place the vendee in possession, and permit him to make in good faith valuable improvements thereon, a court of equity will, under such circuin- , stances, upon the application of the vendee, decree a title to be made to him by the vendor.
    And why is it so? ÍTot because there is any such exception in the statute, but it is because honesty and fair dealing between man and man require it. The parties have gone so far that they cannot otherwise bo placed in statu quo. Then, will not the same principle apply in this case ? Does not honesty and fair dealing- require it? Can the parties be placed in statu quo without it? The principle will certainly apply, and inasmuch as they cannot be otherwise placed in statu quo, and inasmuch as honesty and fair dealing require it, tlie court should by its decree vest the title in him. To do so will not militate against the statute either in its spirit or letter; it will be only carrying out the intention of plaintiff’s intestate. If the facts set forth in defendant’s answer had been duly authenticated by a certificate of acknowledgment of the iutes-tate made before tlie proper officer the sale would have been good.. Then, why will not those facts, when admitted to be true, be deemed sufficient to authorize a court of equity to vest the title in defendant? Tlie statute regulating the mode by which married women may convey their separate property was enacted for tlieir protection, and not for the purpose of enabling them to impose upon tlie unwary. The reason why a conveyance by a married woman of her separate property is deemed not valid unless there lias been a compliance with the requisitions of the statute is, because the presumption is that her ■husband (who has a general controlling power over her actions) used an undue influence over her in order to obtain it, or she would otherwise have gone through the test of a privy examination by the proper officer. Doubtless that presumption can, like most others, be rebutted by positive proof; and if so, we have it in this case. Though it is the duty of courts of equity to protect the rights of married women, yet it is not required that they should encourage married women to do acts of dishonesty, much less to aid them in carrying out such acts. Equity looks upon that as done which ought to be done. (See Story Eq., vol. 1, p. 79, sec. 01.) In the case of Jacques v. Methodist Episcopal Church, 17 Johns. R., 548, it was decided that “ a feme covert, with regard to her separate estate, is to be regarded as a feme sole, and may dispose of her separate property without the'consent or concurrence of her trustee, unless she is specially restrained by the instrument under which she, acquires her separate estate.” And it is further decided in said case “ that though a particular mode of disposition be specially pointed out in the instrument or deed of settlement, it will not preclude her from adopting any other mode of disposition, unless there be negative words restraining her power of disposition, except in the very mode pointed out.” And it is therein further decided “ that if she enters into any engagement clearly indicating her intention to affect by it her separate property, a court of equity, if there be no fraud or unfair advantage. taken of her, will apply her separate property to satisfy such engagement.” But here, in this State, the statute regulating marital rights is the instrument under which she acquires separate property^ and the statute regulating conveyances by married women points out the mode by which she may dispose of it; yet in neither of those statutes are there negative words restraining her powers of disposition, except in the very mode pointed out. Again, in the case of Livingston v. Livingston, 2 Johns. Olí. R., 537, it was decided that “ where husband and wife agreed bs' parol that lie should purchase a lot of ground in her name and build a house thereon, and that lie should bo reimbursed the costs thereof out of the proceeds of another house and lot, of which she was seized in her own right, and which should be sold for that purpose; and the husband having executed the agreement on his part, the wife died, leaving children, to whom the property in both lots descended before the contract was carried into execution on the part of the wife, decreed that tlie agreement should be carried into effect; and (he lot was ordered to-lie sold and a conveyance to be executed by the infant children, by their guardian ad litem and their father, the plaintiff, and the master was directed to join-in the conveyance to the purchaser, and the plaintiff to be reimbursed the advances made by him out of the moneys arising from the sale.” Mow, is not the case before the court a much stronger one than that? It certainly is; for in the case before the court the consideration inured alone to the benefit of the plaintiff’s intestate and for the preservation of her separate property, and she not only signed the deed and delivered the slave willingly, without coercion or persuasion, with the intention of vesting the title in defendant, but actually thought that she had, and never did thereafter wish to retract the same, but was really well satisfied at what she had done. In the case of Bein et al. v. Heath, (i How. IT. S. It., 228, it was decided that u where a wife mortgaged her property, and then sought relief in chancery upon the ground that the contract was void in consequence of her disability to contract, and it was shown that the lender acted in good faith, proceeded cautiously under legal advice, under assurances that the loan was for the exclusive use of the wife, to whom the money was actually paid, the interest upon the loan paid for several years, the mortgaged property insured by her and the policy assigned to the mortgagee, a bill to relieve her from the contract cannot receive the sanction of a court of equity.” That occurred in Louisiana, where any contract made by a wife as security for her husband was, by the law, void; and the case shows that she was in reality surety for husband in the premises; yet, because she by her acts deceived the creditor, the court refused to relieve her. This goes to show that courts can go beyond the statute, even in cases where there are no exceptions provided for by the statute, for in that case there was no provision for such an exception; anti if they could do it there in that case under their statute, why can we not do it here in this case under our statute? There is no good reason why we should not. If the equity of that case required it, then most assuredly this ease requires it, for it makes a much stronger appeal to equity. Well, enough is said upon that point; now for the next, and that is simply tills:
    II. When the court decided that tiie plaintiff should recover the slave it did right in requiring- the consideration money to he first refunded, fora -‘party seeking equity must do equity; and where one seeks to be discharged from a contract he must restore to the other party the benefits received by him under it to entitle him to relief.” (See Bruen v. Home, 2 Barb. Sup. Ct. It., 68(5, referred to in ü. S. Dig., vol. 0, p. 158, sec. 91.) “A court of equity will not decree the cancellation of conveyances where anything has been received until repayment is made.” (See Miller v. Cotton, 5 Geo. R., 341, referred to in vol. 9 U. S. Dig-., p. 159, sec. 103.) But it may be said that the proceeding- hero by tiie plaintiff is at law. In answer to which it may well be said that tiie Constitution provides that the courts shall try all suits, &c.-, without regard to any distinction between law and equity. (See Hart. Dig., p. 62, sec. 10.) And besides, tiie answer of tiie defendant would require that the cause be tried according to the principles of equity. And it may also be said that the well-known maxim of equity which says that “he who seeks equity must do equity” will not apply here, because the debt was barred by tiie statute of limitations. As well might they saj' that a person who seeks to cancel a contract for tiie loan of money that is void bylaw on account of usury should not return the money actually loaned. Yet Mr. Story, in his Commentaries on Equity, 2 vol., p. 7, sec. 696, lays it down as a well-settled doctrine (hat in many cases where tiie instrument is declared void by positive law, and also where it is held void or voidable upon other principles, courts of equity will impose terms upon the party if the circumstances of the case require it. Thus, in cases of usury, courts of equity will not interpose in favor of the borrower except upon payment or allowance of tiie debt fairly due. So in cases of the setting aside and cancellation and delivery up of annuity securities because not duly registered. Courts of equity will direct an account of all receipts and payments on each side, and require the just balance to be paid by tiie proper party. And similar principles are applied to other cases where the transaction is deemed indefensible, and yet there is an equitable right to compensation. If the court declares tiie sale void, then must it require the plaintiff to refund lo defendant his money. (See Bromley v. Holland, 7 Yes. Jr., 3.) “Where the •contract is rescinded the parties should be placed in statu quo." (Keltner v. Keltner, 6 B. Mon. R., 40, referred to in tiie 8th vol. U. S. Dig., p. 123. sec. 101.) The court in requiring tiie consideration money to be first, refunded before possession of the slave'was to be given, is fully sustained by the case of Barbour v. Morris, 6 B. Mon., 120, referred to in the Sth vol. of the U. S. Dig., p. 123, see. 104, in which it is decided that “on the rescission of a contract for the sale of land a repayment of the price should be decreed, and a lien upon the laud to secure it be given.” When, owing to the statute of frauds, chancery will not decree specific performance, it will still do justice by compensation between the parties. (Phillips v. Thompson, 1 Johns. Ch. It., 149.) That the written obligation of plaintiff’s intestate was binding before the same was barred by the statute of limitations, (that is to say, if the same was ever barred,) the following decisions will show. In the case of Curtis a. Engel, 2 Sandf. Ch. It., 2S7, referred to in the Sth vol, U. S. Dig., p. 214, sec. 48, it is decided that “a debt to be chargeable upon the separate estate of a wife, where not so by the deed of settlement, must be contracted for the benefit of the estate or for her benefit on the credit of such separate estate.” In the case of Jarman v. Wilkerson, 7 B. Mon. R., 293, referred to in the 8th vol. U. S. Dig., p. 210, sec. 83, it was decided that “where a feme covert, being the owner of a separate estate, signs a note as surety for her son, her separate estate will be hoi den liable therefor; at least, when she lias suffered judgment thereon to go-by default and execution has been returned nulla bona, her separate estate may he subjected in equity to the payment of the judgmeut.” And in Coats v. Robins, 10 Miss. R., 757, referred to in the U. S'. Dig., vol. 8, p. 21G, it was-decided that “A feme covert is regarded in equity in respect to her separate property as a feme sole, and if she gives her note or bond she will be presumed to intend to charge her separate estate.” And Mr. Clancy, after treating very extensively upoii the subject of charges made bj* married women upon their separate property, and after reciting passages from numerous authorities upon the subject, both ancient and modern, concludes thus: “So that the present state of the law on this part of onr subject seems to bo this, that if a married woman having separate property executes a bond or note or any other instrument by which she pledges herself to (lie payment of money, that-property will be hound by her engagement, though the instrument which she has signed does not purport to be a lien upon that estate.” (Clancy’s Husband and Wife, 34G.) And onr statute provides “that the husband and wife maybe jointly sued for all debts contracted by tile wife for necessaries furnished herself and children, and for all expenses which may have been incurred by the wife for the benefit of her separate properly.” (Hart. Dig-., p. 737, art. 2423.) But this is well settled by our own Supreme Court. (See the case of Hollis & Wife v. Francois & Border, and the case of Cartwright v. Hollis & Wife.)
    III. How, if the claim ivas barred by the statute of limitations was it not a good consideration upon which to base a promise? It certainly was. It is laid down by the authorities that “ where a man is under a moral obligation to pay money which no court of law or equity can enforce, and promises to pay the same-, the honesty and rectitude of the thing makes it a valid consideration. As if a bankrupt in affluent circumstances, after his certificate, promises lo pay the whole of his debts, (Cowpor, 54-1; Doug., 101, note,) or if a man promises to pay a just debt, the recovery of which is barred by the statute of limitations, it will bind him to his promise. (1 Dd. Raym., 389.) So also if a man after ire comes of age promises to pay a meritorious debt contracted during his minority his promise will be obligatory on him. (Stra., 090; 1 Term R., 048.) Lord Mansfield very justly remarks (Cowper, 290) that in tlie.se and many other instances, though the promise gives a compulsory remedy where was none before, cilher in law or in equity,'yet., as the promise is. only to do what an honest man ought to do, the ties of conscience upon an upright man are a sufficient consideration. There is no iirineiple in law better established than .that such promisors are binding in law. (Thompson v. Peter, 12 Wheat. R.; Bell e. Morrison, 1 Pet. R., 351, 302; Baxter v. Penniman, 8 Mass. R., 133) The statute of limitations receives (ho same construction and application in analogous cases in equity as at law. (Kane «. Bloodgood, 7 Johns. O. R., 9.) This, then, was a debt that common honesty and fair dealing between the parties required to be paid, and that alone is, as has been shown, a sufficient consideration upon which to base a binding promise. If so, then, it certainly was sufficient to sustain a payment, and further, the plaintiff’s intestate, at the very time of and by the execution of the bill of sale and delivery of the slave, thereby acknowledged the justness of the debt and showed a willingness to pay. By the payment thereof, and by permitting the defendant to retain'possession of said slave from that date up to the time of her death, is a continuous equitable recognition, not only the justness of the debt and a willingness to pay, but of the aetual payment thereof. To say that a married woman cannot pay a debt that is barred by the statute of limitations would be to say that she is legally coerced into dishonesty, which is not correct, for the law coerces no one into dishonesty. And to say that married women cannot by their promise take a case out of the statute of limitations would, in effect, be to say that they alone are debarred from having indulgences shown them. If such was the case it would frequently occur that the hiw, in the place of preserving unto them their separate property, would canso them to lose it. Such a doctrine is contended for hy some, because they say that a married woman is not liable upon the written contract, but that she-is liable upon the written consideration, aud that suit must therefore be brought against her within two years, or the debt will be barred. Now, suppose that just before the two years had expired the creditor perceives that if he does not enforce iiis claim it will be barred, and that if he does at the time enforce it it will reduce the woman to penury and want — what must he do? Is he compelled to sue and beggar her? or will he not be allowed to favor her by extending the time for one or two years’longer? And if the latter, upon what then will she be thereafter liable? Certainly not upon the original consideration, for that would be barred. Then it must be upon the subsequent promise; and if she could render herself liable upon such a promise, she could therefore render herself liable upon a promise made to pay a debt that was already barred under the authorities hereinbefore referred to.
   IIempiiiuTj, Cii. J.

This cause has been argued with great ability, and it. is to be regretted that at this late day of the session the subject so luminously discussed can receive comparatively but a slight examination. The only doubt, if doubt can exist at all, is whether judgment should not have been against the-plaintiff, and that the property be vested in the defendant. That a married woman holds her property by as high, as full, and as perfect a title as does her husband his separate property, is a proposition not to be questioned; and if the law has placed restrictions upon her power of disposition of such property, and has required her to undergo a privy examination before a public officer in order to validate her conveyance, the restriction is for her benefit, and proceeds upon the ground that, as the.husband is the head of the family, and she is placed in many respects under his control, there is danger that her act, in the execution of the conveyance, may not be altogether voluntary, but may be induced by coercion on the part of the husband.' To shield the wife the law requires that, in the conveyance of her property, she must, privily and apart from her husband, acknowledge that the conveyance was her act; that she hail willingly signed, sealed, aud delivered the same, and that she wished not to retract it; and this being done, it is declared by the statute that the deed shall pass all the right, title, and interest which the husband or the wife may have in the property conveyed. Some acknowledgment of this kind from a married woman, on conveyance of her property, is required in England and in all of the United States under the control of common-law jurisprudence. But in none of the States but Texas does any such provision extend to all of her property, or to the separate property of the wife held under marriage settlements or other deeds of trust. In relation to this she is considered in England and in some, perhaps most, of the Slates, as possessing the powers and capacities of a. feme sole, while in others she is restricted in her transfers and control over such property to the specific mode pointed out by the deed or instrument by which it was vested in her.

The statute which prescribes the mode of conveying the wife’s property does not expressly declare absolutely void any other mode of conveyance. It seems from its terms to have had but one object in view, and that was to secure the freedom of will and action on the part of the married woman. If she was free to act and so declared it, and that she did not wish to retract, all the circumstances concurred which were made necessary by the law to pass her title to the property.

Now, although there was no privy examination in this case, yet the facts show that there was the most perfect freedom on the part of the wife; that in fact she was the principal actor; that she not only assented to the conveyance at the time of its execution, but that she always, up to the time of' her death, remained satisfied with her act, and did at no time wish to retract. Under this state of the facts the defendant might contend that he was equitably entitled to a decree carrying into effect an agreement which she had voluntarily made and continuously assented to until the moment of her death, and. especially if the rescission of the contract would be greatly to his detriment, and ho could not be placed in the condition in which lie would have been had no such transaction taken place.

But the case for the defendant stands on much higher and stronger grounds. The debt was incurred altogether for the benefit, the preservation in fact, of the separate estate of the wife. It was a charge, then, exclusively upon that estate. No question can arise in this case in relation to the liabilities of the husband. He was at the accrual of the debt, and continued over afterwards to be, notoriously insolvent; and even if he were solvent, yet the private property of each partner in the matrimonial union must, as a general rule, bear its own charges and expenses.

The debt, for the part payment of which the negro was sold, being, then, chargeable exclusively upon the separate estate of the wife, she had a right t.o discharge it out of either the corpus or profits of said estate. She might have been sued for its recovery, and on judgment the decree would have been that the execution be levied on her separate property. On proper application this might bo restrained to the proceeds first, and if'they were insufficient, then to be'leviod on the corpus of the property; but without specific directions the levy would be made and carried into effect, on the property of the wife, in the same mode in which executions against property arc usually enforced. If she could bo sued and forced out of her property to discharge this debt, what should prevent her from its voluntary payment, and from alienating- a portion of her properly for that purpose, if such mode of payment be deemed by her advisable? The proof in this case is that the negro was sold at his value, and there cannot be a shadow of pretence that any imposition was practiced upon the wife.

We have stated that the rule in England and in some of the States is, that property conveyed for the separate use of a married woman may be disposed of (if she bo not restricted exclusively to some special mode] by her as if she were a feme sole. The only question is as to her intention to convey or charge her estate. If this be clear, her act is valid and binding, and even in those States where it is held that she is limited to the mode prescribed in the instrument creating the estate; yet this restriction disables her only from charging her estate merely by her own act, without an examination into the necessity and propriety of such charge by a court of equity. If the charge bo necessary and proper it will be sustained, and must be satisfied out of such estate. (1 Hill’s Chan. Rep., 1; 1 Strobh. Eq., 27; Cartwright v. Hollis, 5 Tex. R., 152.)

The defendant, then, in this case, has fully shown all the facts and circumstances which entitle him to a complete conveyance. He has shown not only the assent of the wife and the consent of the husband, and her intention anil wishes not to retract the act of conveyance, but he has further shown that the debt was incurred for and was justly chargeable upon her separate property; that it was a necessary charge, and that its payment by transfer of the property was voluntarily made. These facts bring the case within the control of a principle laid down in a case recently decided at the Galveston Term, to the effect that the want of a formality in the execution of a deed of conveyance, a seal, for instance, would not exclude the instrument from being offered as evidence of the intention of the parties, but would only impose upon the claimant the necessity of proving all the facts which would entitle him to a conveyance, and that the paper, with such proof, would be sufficient title to support an action or maintain a defense.

Let us present another view of this ease. If the conveyance be, as contended, absolutely void, it is not binding on either party. Let us suppose that the debt, before the bar of the statute was completed, had been paid by sale of a negro, and that the boy had subsequently died, could the defendant afterwards, on pretence that the sale was void, have sued for and recovered his debt ont of the estate of the wife? No doubt this could have been done if the sale were absolutely void and not binding on either party. Yet I apprehend that a suit by defendant for the debt, under the circumstances, could not he maintained; but if it were defeated, it mint be upon the ground that the sale was not void, but that notwithstanding tiie want of legal formalities the conveyance would, under the facts of the case, be sanelioned, aided, and perfected.

Noth 80. — A conveyance of property by a married woman, not executed in striot conformity with tho statute, is an absoluto nullity. (Gregory v. Van Vleck, 21 T.. 40; Jlalton a. Rust, 22 T., 133; Berry ». Donley, 21; T„ 737; Eckhardtv. Solileoht, 2!) T., 120; Clayton a. Frazier, 33 T.,91; Hampshire v. Floyd, 30 T., 103; Fitzgerald v. Tumor, 43 T„ 70.)

Hots 81. — Flack v. Neill, 22 T., 253; Shearon y. Henderson, 38 T., 215.

But although we would have been better satisfied had the judgment supported the conveyance and vested the litio in the defendant, yet as lié does not appeal it is not essential or necessary (hat the judgment in t hat p irlicular he disturbed. The decree accords wit it the dictates of honesty, and is sanctioned by tiie soundest. principles of law and justice. (S.ory’s l£q„ sec. 098.)

In a late case at Oalvesfon, in which infants attempted to set aside conveyances executed by them during infancy, it was held that, although on coming of age they might affirm or disavow their conveyances of real estate, yet that, as a general rule, they must restore the money or other property received asa consideration for said sale.

There, is nothing in the. question relative to the statute of limitations. The former contract, though barred, yet was a sufficient consideration to support the new engagement or promise.

In some of tho remarles, by way of illustration, tiie first contract may have been treated as not barred by the statute. This was done merely for convenience, as the remarks were not applicable to this case specially, tint to all in which the like facts maybe presented, and where tiie charge upon the estate may be one against winch títere is no bar.

Judgment affirmed.  