
    James Baskins, Adm’r. v. William Giles.
    The act of 1823, p. 35, provides “ that no marriage settlement shall he valid until recorded in the office of the register of mesne conveyance in the district where the parties reside ; provided that the parties shall have three months to record the same, and if not recorded within three months the same shall be null and void.” Held, by a majority of the court, not to apply to a mere executory agreement between husband and wife, executed before marriage, in which there were mutual releases to each other of all right which either might acquire to the estate of the other; (Johnson, Ch., of a contrary opinion, holding that the act of 1823 embraces all contracts founded on the consideration of marriage, whether ante or post nuptial, by which the relative rights of the husband and wife in the property of each other, incident to the marriage, is changed or altered.)
    The term “ marriage settlement,” is never applied, it seems, to a mere execu-tory agreement, by which the title to property is not changed, but is always understood to mean the actual conveyance or executed contract by which not only the property is changed and the title vested, but by which the property to some extent is tied up and rendered inalienable.
    
    The question whether the recording of a marriage settlement under and according to the act of 1823, is necessary to give it validity as between the parties discussed ; in the opinion of Johnson, Ch., held indispensable, and said to. have been so decided in the case of Austin v. Mullen, some years since, (not reported.)
    It is a well settled doctrine of the court of chancery, that if real or personal estate be settled on a married woman, without the intervention of trustees, her interests will notwithstanding be protected.by the conversion of the husband into a trustee.
    Where a marriage contract was executed between husband and wife previous to the marriage, in which the husband stipulated that the wife'should enjoy all the property which she then had or might acquire to her separate use, and released his right to the same. Held, that no trustee being appointed by the deed, the husband was.to be considered as a trustee for the wife, and that as such he was entitled to the possession of the marriage contract, and was bound in good faith to have had it recorded, and that he should not be permitted to set up a claim to the property of the wife, founded upon his omission to record it. (Per Johnson, Ch.)
    By the terms of a marriage contract entered into between husband and wife before marriage, the husband convenanted that his intended wife “ should at all times thereafter have, hold, use, occupy, possess, and enjoy, in her own right, and to her sole and proper use and behoof all the estate, real and personal, of what kind soever, of which she might he seized and possessed at the solemnization of the intended marriage without any let, or hindrance, claim, title, or demand whatsoever, from the said husband,” Held, not to operate as a relinquishment on the part of the husband of all interest in the property of the wife upon her death, as well as during coverture, nor to vest in the husband, being in possession as trustee, on his wife’s death jure mariti ; but that the effect of the contract was to make it the separate estate of the wife without any limitation over, or power of appointment, and therefore distributable under the act of 1791. (Johnston, Ch. of a contrary opinion holding the contract to amount to an entire, relinquishment of all claim on the part of the husband to the estate of the wife, either as husband in possession or as a distributee.)
    
    
      Before HARPER, Chancellor, at Abbeville, June Term, 1838.
    
    This case came up on an appeal from the decree of his honor, Chancellor Harper. The decree which embodies a statement of the facts in the case was as follows :
    “ The defendant, Wm. Giles, and Mary Young, in contemplation of marriage between them, on the 29th April, 1827, executed an agreement, by which the said defendant covenanted “ that notwithstanding the intended marriage, the said Mary Young shall at all times hereafter, have, hold, use, occupy, possess, and enjoy, in her own right, and,to her own sole, and to her own proper use and behoof, all the estate, real and personal, of what kind soever, which she may be seized and possessed of at the time of the solemnization of the said intended marriage, without any let, hindrance, claim, title, or demand whatsoever from, or by the said Wm. Giles, his heirs, executors, administrators, or assigns.” She, on her part, covenanted to renounce, and did thereby renounce, all claim on the estate of the said William all right of dower- or distributive share.” (A copy of the agreement is annexed to the decree, marked A.) Soon after the marriage, the defendant .delivered the agreement to one Samuel Young, the brother of his wife, but it was not recorded until November, 1832. The wife of the defendant died in 1833, and administration of her estate has been granted to the complainant.
    After his administration, complainant- obtained possession of a female slave, which had been the property of his intestate, at her marriage, with her three children. He offered these slaves for sale, and they were purchased by one. James Cook. The defendant commenced his actions of trover against the complainant and Cook, and having the legal title, recovered judgments. , The object of the bill is to enjoin those judgments, and that defendant may account for, and deliver over, all the property which came into his possession, in consequence of his marriage, with his deceased wife. Defendant admits that he has sold one slave whom he obtained by his wife, at the price of #600.
    A question was made, under the act of assembly of 1823, directing that no marriage settlement shall be valid until recorded, and if not recorded within three months, shall be null and void, whether such settlement shall be regarded as void, even between the parties to it, and if so, whether it is made valid by the act of 1832, directing that settlements not recorded, shall be regarded as valid between the parties themselves. But these questions it is unnecessary to consider, for'I am clear that the contract in question does not come within the act of 1823, but must be governed by the former acts, which expressly recognize its validity as between the parties themselves.
    The act of 1823, directs- that “ no marriage settlement shall be valid until recorded.” Now, what is a marriage settlement ? Why, it is hardly necessary to refer to authority for the purpose of showing that the term is never applied to the mere executory agreement, by which the title to property is not changed. It is always understood to mean the actual conveyance or executed contract, by which not only the property is changed and the title vested, but by whi.ch the property, to some extent, is tied up and rendered inalienable. Mr. Atherley, in his treatise on marriage settlements, says, that the first settlement known to the English law, was the limitation of an estate to a man and the heirs of his body. By this, at first, the property was rendered perpetually inalienable. When, by the construction of' the courts, this came to be considered a fee simple conditional, the statute de donis was passed. This statute being evaded by the invention of fine and- recovery, the method was adopted of limiting the estate to the parent for life, with remainder to his first and other sons, &c. And when, to guard against forfeiture by the tenant' for life, trustees, to preserve contingent remainders, were interposed, family settlements, the author observes, were rendered, in this great outline, what they are at present. Coming to treat of marriage articles, (p. 42.) he says, that instead of a complete and final settlement, articles are often entered into, and the making of the settlement postponed until after the marriage. Articles are carried into execution by making a settlement. But it is useless to pursue this matter. The distinction is observed throughout, nor am’ I aware of any case or authority by which it is confounded.
    Then the rule is well known, that if technical words are used in a statute, they must have their technical signification unless there is something in the context to show that the legislature intended to use them in a different sense. But here is absolutely nothing in the context bearing on the matter beyond the bare enactment I have quoted. The legislature may have thought it sufficient that executory marriage contracts should be recorded in the secretary of state’s office, but that when they were carried into execution, and the title of the property changed, it was proper they should also be recorded in the office of the register of mesne conveyances. But however this may be, I am not at liberty to depart from the plain, unequivocal letter of the act, on any speculation of their intention.
    I suppose the effect of the agreement to be just as if the property had been conveyed to trustees, in general terms for the separate use of the wife. That would have made it distributable as her separate estate; and I suppose the husband is entitled to one-third of it under the statute of distributions, the intended wife, in the agreement, renouncing all claim to a distributive share of the husband’s estate, but there is no such stipulation on the part of the husband with respect to the wife’s. This he would be entitled to retain, if there are no debts, as I suppose there are not. But no question was made bn this part of the case, and I shall not conclude or order any thing upon it. Future application may be made to the court if it should be necessary.
    It is ordered and decreed that the defendant account for all the estate of his deceased wife, which came into his hands by virtue of his marriage with her, and for the value of any portion of the said estate which he may have sold, and pay and deliver over to the complainant for the purpose of distribution, any portion of the said estate remaining in his hands, and any sum of money which may be found over on the fact of accounting, and that the injunction granted in this case be made perpetual.”
    (copy agreement marked a.)
    
      South-Car olina, Abbeville District — ■
    This indenture, made this, the twenty-seventh, day of April, in the year of our Lord one thousand eight hundred and twenty-seven, between William Giles of the one part, and Mary Young of the other part, witnesseth, that whereas the said William Giles and Mary Young being about to join in the holy bands of matrimony, and wishing, as far as in their powers, previous to the solemnization ¿of their intended marriage, to settle all matters relating to each of their property or estate, and as far as in their p'owers to prevent hereafter any trouble, collision, interference or claim by the one or the other to such property or estate, whether real or personabas either of them are now seized or possessed of,do hereby, each for him or herself, release, relinquish, and forever abandon unto the other, all right, title, interest, claim, or demand, whatsoever, either in law or equity, which either of the said parties may upon, or after the solemnization of the said intended- marriage, acquire to the estate, real and personal, of the other. And the said William Giles, for himself, his heirs, executors, and administrators, doth hereby covenant to and with the said Mary Young, her heirs, executors, and administrators, that notwithstanding the intended marriage aforesaid, she, the said Mary Young, shall at all times thereafter, have, hold, use, occupy, possess, and enjoy, in her own right, and to her sole and only proper use and behoof, all the estate, real and personal, of what kind soever of which' she may be seized and possessed at the time of the solemnization of the said intended marriage, without any let, hindrance, claim, title, or demand whatsoever, from, or by, the said William Giles, his heirs, executors, administrators, or assigns. And the said Mary Young, for herself, her heirs, executors, and administrators, doth hereby covenant to and with the said William Giles, that notwithstanding the said intended marriage, she, the said Mary Young, will, and by these presents doth, release, renounce, and forever relinquish unto the said William Giles, his heirs, executors, administrators, and assigns,-all right, title, claim, interest, or demand, and also all right or claim of dower, which she may, by the virtue of the said intended marriage, acquire, of, in, or to, all or any part of the estate, real or personal, of the said William Giles, and also every portion, partition, division, or distributive share of the estate, real or personal, of the said William Giles, to which she may be entitled in case of his dying intestate during the life time of the said Mary Young.
    In witness whereof we have interchangeably set our hands and affixed our seals to these presents, on the day and date above written. W. Ginns, [l. s.] Mary Young, [l. s.]
    Signed, sealed, and delivered ) in the presence of $
    Samuel Young,
    Jane Y. Green.
    
      State of South-Carolina, Abbeville District—
    Personally came before me Samuel Young, who being sworn, saith that he saw William Giles and Mary Young sign and seal the within contract before they were joined together in the holy bands of matrimony, and together with himself and Jane Y. Green witnessed the execution thereof. Sam’l Young.
    Sworn to and subscribed before me, this 11th April, 1827.
    W. Gray, q. u.
    Secretary’s office, ) Columbia, 25th July, 1836. j
    A true copy from miscellaneous record, book H, page 201-8, taken, examined and certified by
    B. H. Saxon, Secretary of State.
    
      The defendant appealed from the decree on the following grounds:
    1. Because the ante-nuptial agreement between defendant and his wife, is a marriage settlement within the act of 1823, and for want of due recording is void even between the parties, and is not made valid by the act of 1832.
    2. Because if the deed was not void as to the parties, there being no disposition of the wife’s personal property, after .her death, made either by the deed, or by her act during the cover-ture, and the husband being in possession of such property, as legal owner, her equitable interest therein, became his at her death.
    3. Because even if the interest of the wife, in the property that remained at her death, be distributable under our act of distributions, the husband should not be called to account for the property which went to the separate use of the wife, or was disposed of by her under the power which she had over her separate property— and upon accounting, proof of the wife’s assent to any disposition of her property, should be a discharge to the husband, and the full benefit should be given to him of all fair presumptions of assent arising from circumstances.
    4. Because at all events, there being no children, the husband is entitled as distributee to one half of the wife’s property, real and personal, after payment of debts, and he should be permitted to retain this half, if upon accounting there shall appear to be no debts.
   Ctjkxa., per Johnson, Ch.

In the consideration of this case, I propose to inquire:

1. Whether the contract entered into between the defendant and his wife, previous to their marriage, was a marriage settlement within the meaning of the act of 1823, the recording of which was necessary to give it validity ?

2. If recording was necessary, was it binding on the parties, though not recorded ?

3. Was the defendant bound to have it recorded, or can he take advantage of its not being recorded.

4. Is the defendant entitled to the whole of the settled estate, or to a distributive share only ?

5. Is the defendant bound to account for the property disposed of in the lifetime of the wife ?

First: The act of 1823 provides that “no marriage settlement shall be valid until recorded in the office of the secretary of State, and in the office of the register of mesne conveyance, in the district where the parties reside ; provided that the parties shall have three months to record the same, and if not recorded within three months, the same shall be null and void.” If in the absence of any definite authoritative rule, I were left to define what was meant by the terms “ marriage settlement,” I should not hesitate to conclude, that it embraced all contracts'founded on the consideration of marriage, whether ante or post nuptial, by which the relative rights of the husband and wife in the property of each other, incident to the marriage, was changed and altered — by which, for example, the husband renounced his title to the choses in action which accrued to the wife, and were reduced to possession during the coverture, or by which the wife renounced her dower in the lands of her husband, or a distributive share in his personal estate in case of his dying intestate. But a distinction is taken between contracts that are executory and those that are executed, and it is true that the writers on this subject employ the terms “ marriage articles,” and'frequently “ marriage contracts,” or “deeds,” 'to designate executory contracts, as distinguished from executed marriage settlements, by which the estate is finally and definitively secured : but when the object and legal effect of all these varieties of contracts arc the same, any one of these designations may be rightfully employed to express all. May not marriage articles be so framed as to express all that the parties intend? Do not the terms marriage contract and deed, import every thing that is meant by settlement? Is there any conceivable reason why all the provisions and legal effect1 of a marriage settlement should not enter into, and appertain to any- of the forms of contract before enumerated, or any other of which it is possible to conceive ? Independently of these considerations, with great deference, it appears to me that this contract is precisely what the argument maintains is necessary to a marriage settlement. It contains no 'provision for further covenants, and the parties looked to it as the final act by which their rights were to be determined, and the very foundation of the complainants claim is in the assumption that it is entitled to have the effect of a settlement. The protection of creditors and purchasers is one of the leading objects of all our registry acts, and in the act of 1785, (P. L. 357,) every “ marriage contract, deed, or settlement,” is required to be recorded within a limited period; and if because marriage articles, terms used to express one variety of marriage contracts, are not embraced in the act, and need not be recorded, who'would ever think of making any other, or subject themselves to the inconvenience of recording, when all the objects could be attained without it, with the advantage of being able to set creditors at defiance.

Second: I have before recited every thing that is contained in the act of 1823, that has any bearing on this question. It consists of a single clause included in an act relating principally to a different subject. What did the legislature mean when they said, that “no marriage settlement should be valid until recorded,” &c.— Did they mean that they should be valid for some purposes and void as to others 1 That they should be valid between the parties and void as to creditors ? . What is there in the .act itself, or in the subject matter, which authorizes the distinction ? Were not the legislature as competent to declare that it should not be valid, until recorded, as well between the parties as between them and strangers ? The statute of frauds provides that contracts for the sale of lands and those founded on the consideration of marriage, to be binding even on the parties, must be in writing and signed by the party to be bound, or his agent: and the legislature have here declared, that no marriage settlement shall be valid until recorded. The recording is, therefore, as indispensable to the consummation of the contract in this case, as writing in the cases under the statute of frauds. There is no contract until these requisitions are complied with. If we were at liberty to speculate upon the intention of the legislature, and to draw our conclusions independently of the plain import of the terms, even then some reasons might be adduced to show that it was intended that they should be void, even between the parties. It may, I think, be doubted whether it would not have been prudent and wise to have declared all contracts which were required to be recorded, void, as well between the parties as to third persons, if they were not recorded within the time prescribed: and who will undertake to prescribe for the legislature ? The numerous evils and many vexatious law suits which have grown out of the neglect to record deeds, is familiar to every one. Notice of the deed to subsequent purchasers and creditors, has been uniformly held sufficient, although not recorded, and the titles to many of the largest estates, both real and personal, have depended, often, on questionable proof of notice. May it not have entered into the contemplation of the legislature, that declaring them void, even as between the parties, unless recorded, might furnish a strong inducement to conform to the law, and thus avoid the evils which I havé stated? Would it not be a wise regulation ? The leading argument opposed to this conclusion, is deduced from the adjudications on the registry acts, in England and in this country, many of which have occurred in this State, by which it is determined that the contracts are binding on the parties, although not recorded, and I concede that they are all the same way, but it will be found that they proceeded on the ground that the statutes did not render recording necessary to the consummation or perfection of the contract, but declared them (as in our act of 1785) void unless recorded, and in the construction of them, it has been uniformly held, that notice supplied the place of recording, even as to strangers, and as the parties must have notice they were therefore bound. Not so here — the act of 1823, expressly declares, that marriage settlements shall not be valid, until recorded. The point was expressly ruled in the case of Austin v. Mullen, which came up to the court of appeals from Spar-tanburg, some years since, but it has not been reported, and the original opinion is not to be found on file in the clerk’s office. I thought it better, therefore, to consider the question open.

3. It is a well settled doctrine of the court of chancery, that if real or personal estate be settled on a married woman, without the intervention of trustees, her interests will, notwithstanding, be protected by the conversion of the husband into a trustee for her— (Bennet v. Davis, 2 P. Wms. 316; Parker v. Brooke, 9 Ves. 583; Rich v. Cockell, ib. 369; Boykin v. Ciples, 2 Hill. Ch. Rep. 203), and he is, of course, clothed with all of the rights, and bound to perform all the duties which that relation imposes. As such, he was entitled to the possession of the marriage contract, and was bound in good faith to have it recorded. I am not prepared to say, that the neglect to do so, in the case of a trustee having no interest in the estate, would charge him with the value of the estate ; but it is too clear to admit of a question, that no one will be permitted to make a profit to himself, by neglecting, whether intentionally or not, to do that which he ought to have done. The defendant claims the estate here, because he did not record the contract.— That cannot be allowed.

Fourth : By the terms of this contract, the defendant covenanted that his intended wife should at all times thereafter, “ have, hold, use, occupy, possess and enjoy, in her own right and to her sole and proper use and behoof, all the estate, real and personal, of what kind soever, of which she may be seized and possessed at the solemnization of the said intended marriage, without any let, or hindrance, claim, title, or demand whatsoever, from the said Wm. Giles,” &c. And hence the question, whether he is entitled to the whole, or any part of the estate. For the complainant, it is insisted that the contract operates as a relinquishment on the part of the defendant, of all interest in the property of his wife, as well during the coverture as after her death, and that it descends to her next of kin, and Read v. Snell, 2 Atk. 642, is relied on as sustaining this position, but the analogy between the cases does not strike me. By the marriage articles in that case, the wife agreed to accept a stipulated sum in bar, or satisfaction, of her dower and thirds, and of all other parts of the real and personal estate of her husband, which she might claim by the common law of England, or the custom of London — (the husband being a freeman of London,) and it is apparent that the interest intended to be released, was that which might accrue to her after his death.— Besides the terms employed, she could have no other, for she had nothing in the husband’s estate, during his life, and it was held that she was not entitled to her paraphernalia. Here, but for the contract, all the wife’s chattels, reduced to possession, would have vested immediately in the husband, and he would have been entitled to the rents and profits of her real estate during the coverture. Here there was a subject on which this covenant might operate, nor is there any expression in it indicating an intention on the part of the defendant, to do more than to secure to his wife, the separate use of her own estate, leaving to the law the disposition of it after her death. On the other hand, it is contended that the contract only suspended the marital rights of the defendant, during the life time of the wife, and that on her death, tire property being in his possession, the whole vested in him jure mariti. I have before observed, that by the marriage, the defendant would have acquired an absolute property, including necessarily, the use and possession, in the personalty of the wife, and an estate in her realty during the coverture, and a distributive share of it after her death. To these, in favor of the wife, he renounced all “ claim, title and demand.” It is not then a mere suspension, but an absolute relinquishment of these rights. His possession of the property was in character of trustee for the wife, and could not restore him to the rights which he had relinquished, or invest him with new— and it is well settled that the marital rights do not attach upon such a possession. — 12 Ves. 501, Baker v. Hall. It was then the separate estate of the wife, without any limitation over, or the power of appointment, and the note to Peyre v. Jervey, 2 Des. Eq. R. 226, furnishes the rule for its disposition. It must be distributed according to the act of 1791; and there being no children, the defendant is entitled to one-half, instead of one-third, as supposed in the circuit court decree. I have not overlooked the case of Stewart v. Stewart, 7 Johns. Ch. R. 246, in which it was held, -that where by the settlement the wife was entitled to make an appointment of her separate estate, and there being no limitation over, she failed to do so, it was held that the husband was entitled to the whole, and that I believe is in accordance with the English decisions. The case of Peyre v. Jervey, before cited, was decided' on precisely that principle; but that has been overruled, and I will not stop to question the correctness of a rule which has been so long and so universally acted on.

Fifth: I ana not instructed, by the court to give any judgment on the question, whether, the defendant is bound to account for the property sold in the lifetime of the wife, and it is thought that it will be better understood when the circumstances under which it was sold, are before the court; and to obtain this information, an order will be made, referring the matter to the commissioner.— The order for a writ of injunction, is therefore affirmed, and it is ordered that the decree of the circuit court, in all other matters, be reformed according to the principles of this decree. And it is further ordered and decreed, that the defendant do account before the commissioner, for all the estate settled, which remained in his possession after the death of his wife ; and that the commissioner do ascertain and report to the circuit court, what portion of the settled estate was sold by the defendant in the lifetime of his wife — with its value — and whether the same was, or was not, sold with her free and voluntary consent.

Johnston, Ch.

I concur with the chancellor who heard this cause, that the instrument is not to be regarded- as an executed contract, but as still resting in covenant, and requiring the action of this court to execute and enforce it, and that it does not fall within the provisions of the recording act of 1823, even if by a due construction of that act, registration is requisite to give validity to marriage settlements, as between the parties. But I think that Mr. Giles, by the language of the instrument, by “ forever abandoning to his wife, all right, title, interest and claims whatsoever, either in law or equity, which he might acquire after the marriage to her estate, real or personal,” has cut himself off from setting up any claim whatsoever, either as husband in possession, or as distributee. The relinquishment of the wife, in the same instrument, was the consideration of this abandonment on the part of the husband, which made her a purchaser of the exemption for which she stipulated. It is no answer to this to say, that the covenant was made with her personally. It enures in its very nature, like all other contracts, to benefit her estate, and. falls to her executor. If this interpretation is not to prevail, I see no reason why the husband is restricted to a distributive share, instead of holding jure mariti. If the instrument is construed as a covenant with the wife, merely for the space of her life, then according to the case of Stewart v. Stewart, 7 J. C. R. 229, it does not destroy, but only suspends the rights to which the husband would otherwise be entitled: and being in actual possession, he would be considered as having reduced the property, subject to the exception created by his covenant. Whatever construction deprives the husband of his marital rights, must on principle, extend to deprive him aíso of a distributive share of the estate. I am of opinion he is deprived of both. His covenant operates as an assignment of all his interest, after the wife’s death to her executors, for the benefit of her distributees: for whose benefit alone, she plainly stipulated. According to Read v. Snell, 2 Atk. 642, the case is as if she left no husband. That was the case of a wife, who in articles before marriage, barred herself of every thing she could claim out of her husband’s personalty: and it wTas held she was not entitled to paraphernalia, which she claimed. That case appears to me parallel with this.

Note. — In the above case, the reporter has found some difficulty, and has not perhaps succeeded, in giving the principles decided by it. Where the judges differ in their opinions, those principles, upon which the case depends, must be considered as established, in which a majority of them concur.— In this case the circuit chancellor, held, 1. That the marriage contract or agreement, was not a marriage settlement, within the meaning or terms of the act of 1823, and not therefore necessary to be recorded in the office of the register of mesne conveyances. 2. That according to the true construction of the agreement, it did not amount to an entire relinquishment of all claim or interest on the part of the husband, to the estate of the wife; but that the effect of it was merely to make it her separate estate, and that on her death, the husband was entitled to his distributable share of it, under the act of 1791. It will be perceived, that Johnson, Ch., is represented as delivering the opinion of the court. So far as the mere affirmance of the circuit decree is concerned, there is no difficulty, for in this a majority of the appeal court unite; to wit, himself and Chancellor Dunkin. But while in the opinion of Chancellor Johnson, the marriage contract in this case is considered as embraced in the act of 1823, and necessary to have been recorded as required by that act, to give it validity, Dunkin and Johnston, Chancellors, concur with the circuit chancellor in holding it as not falling within the terms of the act. Upon this point, the opinions of Dunkin and Johnston, Chancellors, are given as the opinion of the court. Upon the necessity of recording a marriage settlement, as required by the act of 1823, to give it validity as between the parties, what is sdid by Johnson, Ch., in delivering the opinion of the court, is given as the separate opinion of the chancellor who delivered it. So also, as to what is said on the subject of the duty of the husband to have the deed recorded, and that he should not be permitted to found any claim to the wife’s estate, upon his omission to record it, is represented in the abstract as the separate opinion of the chancellor who delivered it; inasmuch as the other chancellors, Dunkin and Johnston, were of opinion that it was not necessary that the deed should have been recorded at all. As to the effect of the agreement, the opinion delivered by Chancellor Johnson, is given as the opinion of the court; both that opinion and the opinion of Chancellor Dunkin, on this point, agreeing substantially with the circuit decree. Johnston, Ch., is represented as dissenting on this point. It may perhaps be well to remark, that the difference of opinion, as to whether the marriage contract in this case was embraced in the terms of the act of 1823, and therefore, whether necessary to be recorded or not, did not affect the result of the case. The circuit decree was held correct by Chancellor Dunkin, in giving effect to the contract as unaffected by the act of 1823 ; and Johnson, Ch., who held that the contract should have been recorded as a marriage settlement to give it validity between the parties; also held, that the husband as a trustee of the wife, whose duty it was to have the deed recorded, should not be permitted to set up any claim to the property, founded upon his omission of duty, and therefore gave effect to the instrument, in the construction of which, as before remarked, Chancellors Johnson and Dunkin concur with the circuit decree. It.

Wardlaw, for the motion.

Burt, contra.

Dunkxn, Ch.

I am of opinion that the decree of the circuit court should be affirmed, for the reasons therein stated.

In the argument in this court, it was stated that the husband’s right extended to a moiety of the estate, as the wife left no children. If this be so, the decree must, of course, be reformed in this particular.

42  