
    John Thomas and Wife v. William Sheppard.
    Equity will not settle the wife’s estate upon her, after the husband has once reduced it to possession. Where there is a legal capacity there cannot be an equitable incapacity. No ground for relief against a contract that it was injudicious. The court only settles the wife’s equity upon her where it is necessary for the husband, or those claiming under him by voluntary assignment or bona fide purchase of her inter est, to come into equity to obtain possession of it.
    The bill in this case stated that Mrs. Thomas, the wife of complainant, was the only child of Caleb Gilbert, deceased, and the only legitimate child of Mrs. Gilbert, also deceased. That the defendant married an illegitimate child of Mrs. Gilbert. The complainant, Mrs. Thomas, inherited from her father and mother a small tract of land; *and was entitled to the whole of her mother’s personal estate, which had been sold by her administrator to complainant Thomas, and constituted the greater part of the personal property in his hands. The complainant, Mrs. Thomas, was very young at her marriage, being only about sixteen of at the of the cause. The complainant, Thomas, was working a farm with his mother-in-law, Mrs. Gilbert; and at her death acquired possession of the land. Thomas was a very ignorant, inexperienced young man. On the death of Mrs. Gilbert, the defendant insisted on having her estate divided between his wife and Mrs. Thomas. This proposition being rejected, he said that he would have the whole estate. In a short time Sheppard proposed to sell to Thomas a negro woman and her children, whom he represented to be very valuable; that he would wait for the purchase money three or four years; and that the negoes would in that time make the money. On these representations, Thomas bought the ne-groes for about §1,000, (which was §300 or §400 more than their value,) and gave his note payable in a short period, and executed a mortgage of the negroes. Soon after this, Sheppard representing that the mortgage did not sufficiently secure him, induced Thomas to confess judgment, and immediately directed the sheriff to levy the execution on the land, the negroes and the other personal property, which was accordingly done. Sheppard himself, under the levy, took the negroes into possession for safe keeping. All these transactions occurred in a few months after the sale of the negroes by Sheppard to Thomas.
    The answer denied most of the allegations.
    June, 1825. Thompson, Chancellor. The bill so fully details the circumstances of this case, that it is considered as unnecessary to advert to them in this decree. The answer unequivocally denies every important ^legation in the *bill. It therefore became necessary for the complainant to resort to parol evidence tosupport his case. The principal grounds relied on by the counsel for the complainant to vacate and annul the contract are, first, imbecility of intellect; and secondly, fraud exercised in procuring it. The evidence on the first ground has entirely failed in the object for which it was introduced. It went to establish the fact, that he was not one of the brightest of men, but that he had good, plain, common sense, and was capable of making small contracts, but not one to so large an amount. And I do suppose, that this opinion was founded more on the state of his funds than of his intellects. It appears, that some time before the contract, he had sense enough to marry a girl of a handsome little property. It is contended, that Sheppard is a man of far superior intellectual faculties to Thomas; and that therefore upon this ground the contract ought to be set aside. If that were the case, not one contract in ten thousand would stand; because it almost amounts to an impossibility to equalize talents; and bonce it is a rule of law, that where there is a legal capacity, there cannot be an equitable incapacity. There is also another rule of law, which operates against the complainant, that no. man shall be permitted to stultify himself.
    The second ground relied on is, that Sheppard exercised a fraud on the complainant. It is positively denied in the answer, which has not been disproved according to the rules of law. With respect to the indulgence said to have been promised by Sheppard to Thomas, it is not satisfactorily established. Besides, if it had been, it was waived by his having confessed judgment and frequently acquiesced in Sheppard’s proceeding thereon. It is very probable, that he had his views on the land; but there consisted no fraud in this, unless he (Sheppard) made use of misrepresentations, circumvention, or other undue or unfair means, — which have not *been proved. If Thomas had made an advantageous bargain, this court would never have heard anything of this suit; but as it has turned out disadvantageous, it is attempted to be set aside. The court considers contracts of such a solemn nature, that it will never interpose to set them aside; unless it be proved, to a demonstration, that there has been unfairness, fraud, imposition, or an undue advantage taken of the party complaining. The contract, if entered into by parties able to contract and willing to contract, will be enforced. But, inasmuch as the land, and some or all of the personal property, was, by the complainant, derived from his intermarriage with his wife, a very young and inexperienced girl, scarcely arrived at the age of puberty, the court will protect /ter rights. It is therefore ordered and decreed, that ihe commissioner of this court do cause a settlement to be made on her, in trust, of all the real and personal estate which belonged to her at the lime of her marriage; and which is nowin the possession of the complainant, John Thomas. And that the defendant Sheppard be perpetually enjoined from proceeding to recover the same or any part thereof either in law or equity. Each party to pay his own costs.
    Jan. 30, 1827. From this decree the defendant appealed, on the ground that personal property in the possession of the husband, and the husband’s estate in the lands of the wife, ought to be liable to the defendant’s judgment and execution at law.
    J. J. Caldwell, for appellant.
    O’Neall, contra.
    Feb. 1827.
   Curia, per

Colcock, J.

In this case, the court concur with the chancellor in that part of his decree by which he refuses to annul the contract entered into between* the John Thomas, and the defendant, William Sheppard. It does not appear that Thomas is so in understanding as to of making a contract; and the circumstances of fraud and imposition stated in the bill are positively denied, and were not supported by the proof adduced by the complainant. The bargain was an injudicious one, and the consequences will be distressing, but that i? not a ground of relief.

The decree, however, so far as it directs a settlement of the wife’s estate on her, must be set aside. Where a husband’s claim to his wife’s property must be asserted by suit in equity, if there be no agreement between them previous to marriage, it is an established rule (though, as some have thought, of doubtful policy) that the husband will not be allowed to obtain the possession of it, without making a provision for her, 1 Madd. Cha. 386. 1 Roper on Husb. & Wife, 256. But where the husband is in the actual possession of the property, and has even imprudently encumbered it with judgments and executions, it is not in the power of the court cf chancery to rescue it from these legal liens of his creditors and settle it on his wife. The rule which is laid down as to the husband is carried so far, as to apply to his voluntary assignee, and even to a purchaser for a valuable consideration of the wife’s interest from the husband, who are compelled to come into court to assert their rights. And this, I think, is going far enough ; but it will be remarked, that it is not interfering with vested rights; with those liens, which are created by the operation of the law acting directly on the property in the possession of the husband. The court says to these claimants, “You have brought no other right than the husband would have had. Had he applied, we should have required him to make a settlement, and we therefore require you to do the same ; the property was subject to this equitable lien.” And such is the first case referred *to by the complainant’s counsel, Kenny v. Udale, 5 Johns. Cha. 464, which Chancellor Kent takes a most extensive view of the whole subject, and refers to a number of cases; in all which, it will be observed that the aid of the court was necessary to obtain the right, or the wife was a ward of the court, or the property vested in trustees.

The counsel however have referred to some cases which do certainly approach nearer to the present, but in which I think there is an obvious ground of distinction. I say some cases, though they in fact are the same cases. The same complainant, at different times, claims the protection of the court against the creditors or assignees of her husband. The first is Haviland v. Meyers, 6 Johns. Cha. Rep. 25, and the other Haviland v. Bloom & Meyers, Id. 178. In these cases the wife had obtained (as is stated in the second case very fully) a divorce from bed and board ; and the court is directed in such cases, by the statute authorizing divorces, to make orders for the suitable support and maintenance of the wife and children out of the husband’s property, but he having none, the property which came to the wife from her father was settled on her. In the first case, it is said the husband had commenced ejectments to recover the land, and was seeking to recover her personal property. And in both cases it is stated that the fact of the husband’s having abandoned the wife was known. Now, although a lien is spoken of in this case as being created by the judgment, yet it is clear that the property never was in the possession of the husband, and the attempt to levy was after the decree settling the purchase on the wife. In page 180, the chancellor says, “this decree [of divorce] 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.” So that the marital* rights of the husband were destroyed before the levy. expressly said by all the writers on this subject, that if the band has acquired the possession of the property, the court will not interfere ; and some have gone so far as to say, cannot interfere. 1 Madd. Cha. 387. Clancy on the rights of married women, p. 190. Here the defendant is in possession. It is said he entered as tenant to his mother-in-law, but on her death the descent was cast on his wife, and he surely was no longer tenant under the lease.

Everything which relates to the doctrine of supporting this equitable claim of the wife admonishes us as to the caution necessary in the applications of it. When we inquire into its origin, we are informed that it is sufficient to know, that it is a settled rule of the courts of equity; and that it has been acted upon from a very early period. Lord Eldon calls it “a mere creature of the court, founded altogether on its practice.” And it is said no one who looks to the object of it, and observes its application, can doubt that it has introduced a wholesome qualification of the common law. The late master of the rolls, sir William Grant, in the case of Murray v. Elibank, says, “with regard to this equitable right which a married woman has in this court to a provision out of her own fortune before her husband reduces it into possession, it stands upon the principal doctrine of this court. It is in vain to attempt by general reasoning to ascertain the extent of that doctrine; we must look to the practice of the court itself.” And Lord Hardwicke, speaking of it, says, “that it resembles the paternal care which equity exercises for their benefit; and that as a father would not have married his daughter without insisting on some provision ; so equity; which stands in loco parentis, will not do it;” in which language there is discoverable a considerable limitation to *the exercise of the power. It is the power of a judicious parent.

Now, although I am ready to acknowledge that the exercise of such power is wise and proper, and that it may be considered in the hands of the court as a wholesome modification of the common law, and may on proper occasions be well applied to the relief of unfortunate. females, yet I am not disposed to become a knight errant in their cause.

The decree is therefore reversed so far as it directs a settlement on the wife, and in other respects affirmed.

Decree modified.  