
    [Sunbury,
    June 28, 1828.]
    BOUSLAUGH against BOUSLAUGH.
    IN ERROR.
    If a husband, by deed of separation without trustees, relinquish to his wife all his right in her land, reserving the payment of an annual sum, the land is not liable to the execution of a creditor of the husband, who obtains, judgment after the husband and wife have been notoriously separated for nine years.
    In the Common Pleas of Huntingdon county, Jacob Bouslaugh, the defendant, in error and plaintiff below, brought this ejectment for two hundred acres of land in Frankstown township, against 
      Sebastian Bouslaugh and others, plaintiffs in error and defendants below.
    The plaintiff below claimed by virtue of a sheriff’s sale and deed to him, in August, 1822, of a life estate, sold under an execution issued on a judgment against Sebastian Bouslaugh, for a debt of George Wisell, in the Court of Common Pleas of Huntingdon county, on the 12th of March, 1821.
    The defendants gave in evidence a deed,-dated the 9th of iYbvember, 1793, from J. Bench to his daughter, Esther Bouslaugh, then wife oí Sebastian Bouslaugh, conveying the land in consideration of natural love and affection to her during her natural life, and after her decease to the. heirs of her body, and their heirs and assigns for ever. Then the defendants'offered in evidence the following agreement between Sebastian Bouslaugh and Esther Bouslaugh, dated the 2d oí December, 1812, and recorded the 30th of March, 1813, and testimony of David Johns, one of the subscribing witnesses thereto..
    This indenture, made between Sebastian Bouslaugh of the one part, and Esther Bouslaugh of the other part, both of the township of FranleSlown, and county of Huntingdon, and state of Pennsylvania, witnesses, that whereas some unhappy differences have lately arisen between the said Sebastian Bouslaugh and’ Esther his wife, and they have mutually agreed to live separately and apart from each other; and, previous to such separation, he the said Sebastian Bouslaugh, relinquished all claims to the estate that he has in right, by being married to Esther Bouslaugh, both real and. personal, reserving- to himself one mare, one sorrel colt, one bell cow, his own bed and bedding, on the following condition, to wit: That the said Esther Bouslaugh pays unto the said Sebastian Bouslaugh the sum of thirty dollars yearly, and every year during his life, that is to say, thirty dollars on the'first day of October ensuing the dale hereof, and then on the first day of October during his life; and further, the said Esther Bouslaugh does agree to pay all the debts now' contracted for until this date, but no other, On the above conditions the said Sebastian Bouslaugh now quits claim to the above estate that he has in right, both in law and’ equity, for ever, and for ever releases unto the said Esther Bouslaugh, to her own proper use of these presents, and to and for no other use, intent or purpose whatsoever: — Witness our hands and seals this second day of December, A. D. 1812.
    
      Sebastian Bouslaugh, [Seal,}
    
      Esther Bouslaugh, [Seal.}
    
      Alexander Lowrey. Lazarus Lowrey, David Jones,
    
    . The facts which Johns was called to prove were, that Sebastian Bouslaugh called on Lazarus Lowrey and Da,vid Jones, to go with him to his wife to communicate to her proposals of separation, that at his request they went and arranged and settled these articles as written, and that they signed the same as witnesses, and that Sebastian Bouslaugh expressed himself pleased therewith. That the said Esther has complied with the conditions of said article, and has enjoyed said farm as her separate property, and brought up several of their children thereon: That Jacob Bouslaugh, the plaintiff, is the son of said Sebastian and Esther, and had express notice of said article: and that the said Sebastian withdrew from the said premises in 1812, and has not resided with her since, or on the premises, except against her'will: and the debt of thé said George Wisell was contracted long after said articles of separation.
    To this evidence the plaintiff objected, and the court overruled it and sealed a bill of exceptions.' A verdict and judgment were rendered for the plaintiff.
    
      Miles, for the plaintiff in error.
    The father intended this estate for the separate use of the wife. But in equity, the husband may contract directly with his wife. 1 Pow. Con. 64, 109. P. Wms. 125. 2 Atk. 96, 97. 2 P. Wms. 316; Bunb. 205. 6 Serg. & Rawle, 468. 10 Serg. & Rawle, 209. 3 Atk. 547. 5 Day, 47. 7 Johns. Ch. 57. 2 Johns. Ch. 539. Here we offered to prove there were no creditors to be affected by the agreement to live separately.
    
      Hale, contra.
    
    All contracts directly between husband and wife are void. The husband obtained credit on the life estate he had in his wife’s land. Chancery will not interfere against those who are favourites, The purchaser at sheriff’s sale had not notice, and although the plaintiff, who purchased from him had, y.et that makes no difference. The agreement could not be recorded, because it was void: — and not notice, though actually recorded. The articles could not devest the settled estate of the husband.
    
      W. R. Smith, in reply.
    If this were a devisé to the separate use of the wife, there would be no doubt. But the conveyance from Bench was essentially to her separate use. The husband exercised no right for fourteen years before the judgment — no one was deceived.
   The opinion of the court was delivered by

Gibson, C. J.

The interest of a husband in his wife’s land, is an incident of the marriage contract, as. much within his power as the absolute ownership of her chattels, which he may relinquish by an agreement vvithout the intervention of trustees; as was decided in M‘Kennon’s Executors v. Phillips, at the last March term. Where a creditor has not acquired an interest by judgment before the agreement to live separate, it is impossible to inriagine a reason for a difference. A judgment would, undoubtedly, not be defeated by a subsequent agreement, or any other contrivance; but, where the agreement is bona fide, and precedes thé judgment, a creditor shall not insist on the marital rights of the husband after the husband has thought fit to abandon them, and this also was determined at the last March term, in the case of Starret v. Wynn, (ante, 132.) I lay no stress on the-conveyance to the wife being in terms which indicate an intention to restrain the rights of the husband, to limits as narrow as the policy of the law will admit. The parties had been notoriously living separate for some years, which was sufficient .to put creditors on-their guard: so that we should presume too far to say, the debt was contracted on the credit of a supposed interest in the land. At all events, if this could avail the creditor,,it was a circumstance to be left to the jury, and the evidence, therefore, should have been admitted.

Judgment reversed, and a venire facias de novo awarded.  