
    S. Haviland, by her next friend, &c. against Bloom and Myers.
    The wife’s equity to a suitable provision for the maintenance of herself and her children, out of her separate real and personal estate, descended or devised to her during coverture, cannot be defeated by any sale by the husband, or any lien created by him, even for a valuable consideration, or in payment of a just debt: and this equity may be extended to the whole of the real and personal estate devised or descended to the wife.
    As, where, on a bill filed by the wife against her husband for a divorce, on the ground of cruel and inhuman treatment, there was a decree for a divorce, a mensa et ihoro; and the whole of the real and personal estate inherited by the wife from her father, the annual income of which was about one ' hundred dollars, was ordered to be applied to the maintenance and support of herself and children; and certain creditors of the husband, who had obtained judgments against him prior to the decree, afterwards issued executions, and caused them to be levied on the wife’s estate; the Court, on a bill filed by the' wife, by her next friend, decreed a, perpetual injunction against such judgment creditors of the husband, for the protection of her right against the judgments and executions.
    And as the defendants knew of the decree when they directed executions to be issued, they were ordered to pay costs to the plaintiff.
    THE plaintiff was divorced, a mensa et thoro, on a bill filed (May 27, 1816) by her against her husband, on the ground of cruel and inhuman treatment; and the decree directed that the plaintiff should hold and enjoy all the estate, real .and personal, which she inherited from her father, or which she earned after her husband had abandoned her, and that she should have the custody of the children of the marriage; and that Elijah H., the Husband, should be perpetually enjoined from any action at law to recover the said estate, fee. . The bill* after reciting the proceedings and decree as to the divorce, stated, that the defendants having obtained judgments at law against Elijah B, had issued executions, and caused the same to be levied upon the lands of the plaintiff, which the sheriff had advertised for sale. Prayer, that the plaintiff may be protected in the separate and undisturbed enjoyment of her real estate, and from all liens created by Elijah B; and that the defendants may be restrained by injunction, &r,c.
    The answer of the defendant, Myers, stated, that E. B, being indebted to him for rent, and money paid, -Sic. to the amount of 750 dollars, gave him a -judgment bond, on which a judgment was entered up against E. H., on the 26th of April, 1816; that he did not then know that the plaintiff intended to institute any proceedings against E. B for a divorce, and was wholly ignorant of any facts to warrant them. He knew that the plaintiff inherited one sixth of her father’s estate; and insisted that E. H. was entitled to the plaintiff’s personal property, and to an interest for life in her real estate, on which the judgment was a lien, and ought to be first satisfied; that in the summer of 1818, execution was issued on the judgment, Sic. The defendant, George Bloom,, admitted the Original suit and decree for a divorce, and that the injunction was served on him, as the attorney of E. H., on the 3d of June, 1816. That on the 1st of April, 1816, E, B. requested him to bring ejectment suits, to recover possession of the real property inherited by the plaintiff 5 and to secure the costs, E. H. gave the defendant, B., a judgment bond, dated April 17, 1816, for 300 dollars, which was supposed to be sufficient to cover the costs in the suits contemplated; that he, accordingly, commenced five ejectment suits, on the 6th of May, 1816, being satisfied of the justice and legality of the claims of E. if. And he insisted that he was entitled to hold the judgment for the satisfaction of his costs, amounting to 176 dollars, and 90 cents; that he issued execution on the judgment the 13th of June, 1819; not believing that the decree of this Court, on a bill for a divorce, had a retrospective operation, so as to defeat his lien; and that E. H. has no other property to satisfy what is due to him, &c. He admitted that he had knowledge of the decree for a divorce, though he could not say when, but did not suppose that it could impair his lien, created prior to the decree,
    
      J. Tallmadge, for the plaintiff.
    
      Bloom, for the defendants.
   The Chancellor.

The decree recited in the bill, pronounced a divorce, a mensa et thoro, between the plaintiff and her husband, Elijah Haviland, and directed that she should hold and enjoy all the real and personal estate which she had inherited from her father, Samuel Turner7 and that her husband should be perpetually enjoined from any action or proceeding to recover it. This decree was known to each of the defendants, before they caused executions, on judgments against Haviland, to be issued and levied on that estate. This is understood to be a fact admitted by their answers; and the defendants insist that they have a right to satisfy their executions out of that property, because their judgments were prior to the decree. On the question of right, the defendants are evidently in error. The wife’s equity to a suitable provision! for the maintenance of herself and her children, out of her separate real and personal estate, descended or devised to her during coverture, is good and valid. It prevails equally against the husband, or any assignee of his, or any sale made, or lien created by him, even for a valuable consideration, or in payment of a just debt; and whether the suit, in protection of that equity, be instituted by the wife, or by any other person on her behalf, A suit to protect that equity, may be instituted by the wife against a creditor at law, and this equity, if the case he deemed to require it, may be extended to the whole of the real and personal estate, devised or descended to the wife. It is unnecessary to enter into an examination of cases to prove and illustrate this doctrine of the Court, as the rule was sufficiently explained and declared in - the case of Kenney v. Udall, (5 Johns. Ch. Rep. 464.)

The whole real and personal estate, inherited by the plaintiff in this case, and which was appropriated, by the decree, for her use, and the maintenance and education of the two children committed to her charge, amounted in value to about $2,200, and the annual income of which did not exceed $100. Under the circumstances of that case, and the distress which she had endured, and which the vices of her husband had greatly aggravated and protracted, the appropriation of the whole of that paternal inheritance was evidently due to the occasion. And if the judgments confessed by the husband to these defendants, had been for full and valuable considerations, their assumed right to levy the amount of their judgments, upon the property so applied, and in face of the decree, would have been equally destitute of foundation.

But the testimony has clearly contradicted the answer of Myers, in respect to a part of the consideration of his judgment; and the circumstances under which that judgment was confessed by Haviland, and evidently with a reference to the paternal estate of his wife, are calculated to cast a suspicion upon the whole of it, especially as no part of the consideration is attempted to be supported by proof. And with respect to the judgment of Bloom, it has no better pretensions to be regarded. It was obtained by way of indemnity for costs, thereafter to be incurred in ejectment and other suits, to be instituted in the name of Haviland, for the recovery of this very property of his wife, whom he had cruelly treated in the early years of their union; and had, for the twelve years preeedingthe judgment, shamefully and heartlessly abandoned. There ought to have been an assessment of damages under that judgment of indemnity, before the defendant, B., issued execution ; and the costs incurred ought, at least, to have been regularly taxed. These are not demands, therefore, that would have been entitled to favour without further examination, even if the validity of the lien upon the property in question, of prior judgments confessed by the husband, was to be admitted.

The claim to protection against those judgments, does not, however, rest upon the mere equity of the wife to a suitable provision out of her separate estate, notwithstanding the claim of the husband, or of any right or lien created by him. That right, as we have seen, is, of itself, sufficient to bar the pretensions of the defendants, without any previous decree appropriating the property to the use of the wife. In this case, however, the wife obtained a decree for a divorce from bed and board, and the Court, in such case, is directed by the statute authorizing divorces, (2 N. R. L. 200.) to make orders for the suitable support and maintenance of her and her children, out of his property, and to sequester the rents and profits of his real estate and personal estate, and apply the same for that purpose, so far as should seem meet and agreeable to equity and good conscience. The appropriation of her own estate by that decree, was no more than a just and suitable sequestration, under the authority of the statute, of his limited interest in that estate; and in every view of the subject, I entertain no doubt that her estate in question ought to be protected from the judgments and executions of the defendants.

The plaintiff is also entitled to her costs of this suit. Had these defendants been strangers to the decree, and creditors with fair and unexceptionable demands, they might have presented a case that would have entitled them to be relieved from the payment of costs; but it is far otherwise. They knew of the decree when they issued their executions, and they issued them in despite of that decree, and with intent to defeat the settlement under it, of the wife’s estate upon her. They have compelled the plaintiff to resort to this Court for the protection of her rights, against judgments voluntarily confessed to them by Haviland, and doubtless with a view, not only on his part, but on their parts also, of seizing and selling this very estate inherited, by the wife, and at that time in her separate possession.

I shall, accordingly, decree a perpetual injunction against touching the estate in question, under the judgments aforesaid ; and 1 shall, also, decree that the defendants pay to the plaintiff her costs.

Decree accordingly.  