
    Richmond.
    Healy & als. v. Rowan & als.
    
    (Absent Cabell, P.)
    1. Marriage articles made between an infant feme and her intended husband, beneficial to her and her contemplated issue, are obligatory upon the parties, and will be enforced in a Court of Equity, by a settlement in conformity therewith, on the application of the issue of the marriage.
    2. Marriage articles entered into between the guardians of an infant feme and her intended husband, to which she is not a party, are of no obligatory force upon ber.
    3. The certificate of a clerk that a deed was acknowledged in Court by a husband and wife, and ordered to be recorded, is not sufficient to make it her deed.
    4. An infant feme may by her acts, after she attains her full age and when sui juris, adopt or ratify a marriage agreement made lor her by her guardians.
    
      In April 1782, a marriage was about to take place between William Stepioe of Westmoreland, and Elizabeth Robinson of the county of Middlesex. She was then an infant possessed of a large estate, real and personal, derived from her father and brother. Before the marriage took place her guardians, Richard Corbin and Ralph Wormley, entered into articles of agreement with William Steptoe, bearing date the 22d of April 1782, by which, reciting that the said Elizabeth was possessed of seventeen hundred acres of land, and one hundred and fourteen slaves; and reciting the intended marriage, and her infancy, the said Steptoe, in consideration of the marriage and of the consent of the guardians thereto, covenanted with the said Corbin and Wormley, that if the said marriage should take place, he would, at any time after the said Elizabeth should attain the age of twenty-one years, join with her in making and executing any conveyance or settlement which the said Corbin and Worm,ley, or either of them, should require, for settling the said seventeen hundred acres of land, and seventy of the one hundred and fourteen slaves, such as they should select, in trust to the use of the said intended husband and wife for their joint lives; and if there should be no child of the marriage, to the survivor of them, and his or her heirs, forever. But if there should be any children of the marriage at the death of the said Elizabeth, then remainder, after the death of the said William and Elizabeth, to such child or children of the marriage as she should appoint by will duly executed ; and failing such appointment, to such child or children as were her heirs, forever. To these articles of agreement Elizabeth Robinson was not a party; and they were not recorded. In 1823 they were produced in Court, and the handwriting of the parties was proved by one witness, and they were continued for further proof.
    
      After the marriage of the parties William Steptoe and wife, by deed bearing date the 25th of January 1783, conveyed to Ralph Wormley, jr. the tract of land mentioned in the articles, and seventy slaves by name, which the deed stated had been selected by Corbin and Wormley, upon the trusts stated in the articles. This deed purports to be in pursuance of the marriage articles; and it was acknowledged in Court by Steptoe and his wife, and ordered to be recorded ; but the certificate of the clerk does not shew that the wife was examined privily and apart from her husband, and that the deed had been explained to her. The certificate of the clerk, which was endorsed on the deed, was as follows: This deed of trust from William Steptoe and Elizabeth his wife to Ralph Wormley, jr. esquire, was acknowledged by the said William and Elizabeth to be their act and deed, and ordered to be recorded, by the Court. It moreover does not appear in the record of the case whether or not she had then attained the age of twenty-one years.
    
      William Steptoe died about the year 1802, leaving his wife and several children of the marriage surviving him. Mrs. Steptoe, after his death, continued in possession of the estate ; and in 1806 she executed a deed by which she conveyed a part of the seventeen hundred acres of land owned by her before her marriage, called the Grange, in trust to secure a debt which she owed to Ross 6p Vidall. This debt and another was paid off for her by her relation, the Rev. Needier Robinson; and in 1810 she executed another deed, by which she conveyed to George D. Nicholson the laud called the Grange, and twenty slaves, which she had purchased at the sale made by the representative of William Step-toe, in trust to secure to Mr. Robinson the sum of 1460 dollars 51 cents. In 1820, Nicholson, the trustee, sold the land for the purpose of paying the debt, when Robinson became the purchaser at 3047 dollars 50 cents. This being considered a low price for the land, Needier Robinson promised Mrs. Steptoe that she should have the benefit of any advance he might obtain on the sale of the land. In 1821 Robinson sold the land to Man-nus Rowan for ten dollars an acre, and it was agreed that the tract should be estimated at five hundred and thirty acres. Robinson seems to have complied with his promise to Mrs. Steptoe, so far as the purchase money was received in his lifetime.
    
      Needier Robinson died December 1822, and Mrs. Steptoe in 1832: And then her children filed their bill in the Circuit Court of Middlesex against Rowan, and the executor and devisees of Needier Robinson, seeking to have the conveyance and sale of the Grange tract of land set aside, on the ground, principally, that by the marriage articles, and the deed by William Steptoe and wife to Ralph Wormley, jr., Mrs. Steptoe had but a life estate in the land; and that upon her death they were entitled to it. They charged that Needier Robinson had notice of the marriage articles and the deed of settlement before he took the deed of trust to Nicholson ; and that Rowan had notice before he purchased, or at least before he had paid the purchase money; all of which had not been paid when the suit was brought.
    
      Rowan and the executor of Robinson answered. Rowan objected to the articles, that Elizabeth Robinson was then an infant; and to the deed, that she was then a feme covert, and there was no proof of her privy examination ; besides that it did not appear that she was then of age. And he insisted, that the articles and deed could not be confirmed by any acts of Mrs. Steptoe when she was a widow, because the settlement obviously was not beneficial to her; and in fact had been disaffirmed by the very conveyance which the plaintiffs were seeking to set aside. He admitted he had notice before he received a conveyance of the land, that there was some doubt about the title; but knew nothing of the nature of the alleged defect. He said that Robinson conveyed the land to him with general warranty, and that he was content with that security.
    
      Robinson's ex’or denied that his testator had notice of the marriage articles. He said that there was a floating rumour that such articles existed, which induced his testator to have a diligent search made in the clerk’s office for them, hut none could be found ; and it was then believed that no such articles existed. He made the same objections to the articles and the deed of settlement as was made by Rowan; and insisted that Mrs. Steptoe had never confirmed them after the death of William Steptoe. He admitted that Needier Robinson had agreed to give Mrs. Steptoe whatever sum he should be able to obtain for the land above what he had paid for it; and he said that when Rowan made the last payment, which was yet unpaid, Mrs. Steptoe would be entitled to the sum of 69 dollars 31 cents, which he was willing to pay before he received the money from Rowan, if the Court should so direct.
    The cause was removed to the Circuit Court of James City county, and came on there to be heard in November 1839, when the Court said that the bill should have been dismissed, but for the consent of the executor of Needier Robinson that there should be a decree for the sum of 69 dollars 50 cents. Upon this consent the Court decreed against the executor for the said sum of 69 dollars 50 cents, with interest thereon from the 1st of January 1824, when the purchase money was due from Rowan, until paid; and decreed that the plaintiffs should pay costs. Prom this decree the plaintiffs applied to this Court for an appeal, which was allowed.
    The cause was argued in writing by Harrison for the appellants, and Leigh for the appellees.
    
      
      Harrison. The counsel for the appellants under- . stands, that in this case the Court entertains some doubt as to the capacity of infants female — or indeed male— . . . , • J to bind their property by marriage contracts entered into by them before marriage; or, to state the question more precisely and accurately — whether infants who enter into contracts of marriage, by which they settle their property upon themselves and the issue of the marriage, have not the right to vacate and annul those contracts, because of their disability to enter into them on account of infancy ; the female, when her disability of marriage ceases to trammel her, and the husband at pleasure? It would be peculiarly injurious to society, and hurtful to the infants/ themselves, if they had any such capacity or power. The law has long settled that infants may contract marriage at the ages of twelve and fourteen, and that they are bound by those contracts, the marriage being-a valuable consideration; and that the provision made by these contracts for husband, wife and children, is incorporated in the contract of marriage, and forms a part thereof. It would indeed be a most strange omission, or rather gross defect, in the law, if, while it allowed infants to contract marriage, in which the most important interests of their whole lives are involved, it deprived them of the right to contract in mere incidents of the main contract, that is, bargaining for and selling themselves ! For instance: a male infant, with the consent of his guardian or friend, contracts with a female an 'advantageous marriage, and she likewise, each having fortunes; and they are desirous to secure these fortunes to themselves and the issue of their marriage. They are advised by their parents to do this act of prudence before marriage, and it is done. Under these circumstances the parties are married, and immediately after the consummation of the marriage, the husband seeks to set aside the agreement and vacate the contract, upon the ground that he was an infant when the contract was made, and it is therefore void; by which he acquires the fortune of the wife, secured to herself and issue of the marriage by their contract, which was the actual consideration of the marriage, an<^ which by the law they were permitted to enter into. Now, would not this be the grossest fraud upon the wife and issue of the marriage? Would any court sanction or tolerate such fraud ? The marriage is binding upon the parties — that cannot be set aside ; but that part of the contract which stipulates for the consideration of the marriage, and is part and parcel thereof, is to be vacated, because of the infancy of the contracting parties and supposed incapacity to contract for the consideration. This cannot be law, because it is against all morals. An infant who perpetrates a fraud upon another, can never protect himself from the consequences of his fraud upon the ground of infancy. He or she is always dealt with by the law as an adult. And this is the real ground of the rule in regard to marriage contracts made by infants, by which their property is settled. Any attempt to vacate the contract by either party, in regard to the property, is a fraud upon the other; and no imaginable compensation can be made to the other by the perpetuation of the fraud. The marriage has been consummated, and cannot be dissolved, and the Courts must carry into effect every part of the contract or none. The contract of marriage has been performed, and the consideration must be also.
    Upon the best established principles of policy and morality, infants are bound by their marriage contracts, in which they deal or contract in regard to both their real and personal estate, whether male or female infants. If the rule were otherwise, infants could not marry with any degree of safety or prudence, even under the advice and by the consent of their parents, though the marriage might be ever so advantageous to both parties, unless bond and security were given by the parties that they would respectively perform the covenants of the contract.
    But upon authority this principle of law is equally well established. See Harvey v. Ashley, 3 Atk. R. 607; Drury v. Drury, appended to Caruthers v. Caruthers, 4 Bro. C. C. 505; but better reported in 5 Brown’s P. C. 570; Slocombe v. Glubb, 2 Bro. C. C. 545. See also Atherley on “ Marriage Settlements,” where all the cases may be found, and especially settlements by female infants. Atherley 28, et seq. marginal p. Tabb v. Archer, 3 Hen. & Munf. 399, concludes this question, and should now be taken as a fixed rule of property, not to be disturbed or questioned at this day.
    The counsel further insists that Mrs. Steptoe, after the death of her husband, confirmed the marriage contract made by her, by the taking possession of the seventy slaves settled upon her by the marriage articles and contract, of which there is full evidence in the record. If the deed in regard to her were defective, it was a clear case of election ; and she elected to confirm the marriage articles by taking possession of the said seventy slaves settled upon her by her husband, and by buying of the executor the other twenty slaves not so settled upon her.
    The counsel further insists, that although the deed was not recorded as to Mrs. Steptoe, there was express notice to the purchaser of the real estate, and of this there is proof in the record.
    
      Leigh. The question propounded by the Court, taken with reference to this case, is, whether marriage articles executed by a feme infant, with the consent of her guardian, or by her guardian on her behalf, is binding on the infant in respect to her own real estate, so that the Court will decree a specific execution of it, against her ?
    
      I. It must be owned, that there is- more conflict in the authorities upon the point than I expected to find. I do not mean to consider them, particularly. Mr. Atherley, in his Treatise on Marriage Settlements, leans ^ie affirmative. 27 Law Lib. ch. 1, p. 6, 27. After citing all the authorities pro and con, he says it is a doubtful question. Id. 22. M’Pherson on Infants, (which, I take it, is a later book than Atherley’s Treatise,) considering the same authorities as Atherley, says, “ Notwithstanding these dicta, it is now established [in accordance with the opinion of Lord Nottingham] that the real estate of a female infant is not bound, as far as she is concerned, by a settlement on her marriage, because the general incapacity of infants invalidates her contract, and the contract of the husband cannot extend beyond the limited interest which he acquires by marriage.” Law Lib. No. 122, p. 328. The author refers for this doctrine to Simson v. Jones, 13 Cond. Eng. Ch. R. 78, where Sir John Leach, Master of the Rolls, held that a settlement executed by a master for a female infant, who was a ward of Court, under an order of the Court, would not be binding on her. He said, “ that the personal estate of a female infant is bound by a settlement made on the marriage, because such personal estate becomes the absolute property of the husband; and the settlement is, in effect, his settlement and not hers. It is now established, that the real estate of a female infant is not bound by a settlement before marriage, because her real estate does not by her marriage become the absolute property of the husband, although by the marriage he takes a limited interest. The leasehold estate in question being given'to the separate use of the wife, the husband takes no interest in it; and if the power of sale is well executed, it is by the act of the infant. It is not contended that she would be competent to convey such a power, if the settlement had not been made with the approbation of the Court; and the question therefore is, whether the Court has jurisdiction to give a female infant the power of disposition of her separate property during her infancy, by a settlement made in contemplation of a marriage. Whatever doubts may have been entertained on the subject formerly, I take it to be clear that the real estate of a female infant would not be bound by a settlement made with the approbation of the Court. And it appears to me to follow, that the same principle is applicable to personal estate settled to her separate use. By the rule of law, she has no power of disposition during her minority ; and this Court has, I think, no jurisdiction to give her such power. A female infant is bound by a settlement made on her marriage, as to dower and thirds, not by force of her agreement in the settlement, but by reason of the consent of her parent or guardian, and the statute of Henry 8.”
    We may now answer the question put by Mr. Atherley, Mar. Sett. p. 21, 2: “ What ground can a Court of Equity have for supporting an agreement, by an infant, in bar of dower, or concerning her personal estate, which it has not equally for supporting a settlement of her real estate ?” But for the marriage agreement, the husband would take all the wife’s personal property absolutely; and the agreement saves a portion of it to the wife: it is in effect, therefore, the husband’s agreement.
    II. If any doubt yet remains of the incompetency of a feme infant to settle her real estate by marriage articles, it will be- only necessary to advert to the statute law of England and of Virginia, 27 H. 8, ch. 10, § 6, 3 Bac. Abr. Jointure, B, p. 712, and 1 Rev. Code, ch. 107, § 11, p. 405. There is a material difference between the two statutes. The English statute provides, that !t every woman married, having a jointure from her husband, shall be barred of her dower of her husband’s lands;” that is, whether the jointress was an adult or infant at the time the jointure was settled on her. Our statute provides, that “ if the conveyance” [for the jointure] “were before the marriage and during the infancy of the wife, or if it were made after her marriage, in either case the widow may, at her election, waiye such jointure and demand her dower.” There is no question that a jointure, settled during the infancy of the feme, is not binding on the wife.
    The connection between the doctrine, that a feme infant is bound by marriage articles, executed by her, and the doctrine that a feme infant is bound by a jointure in lieu of dower, must be apparent to any person, who looks at the authorities. Atherley says, “ he conceives, that the same argument is equally applicable to the one case as the other.” Ath. Mar Set. p. 22. In Harvey v. Ashley, 3 Atk. 607, Lord Hardwicke says: “The statute of Henry 8, shews strongly the opinion of the Legislature in this respect; for though at law, no jointure upon a woman even of full age, could bar her of her dower, yet the statute makes it a bar; and a jointure will even bind an infant, and preclude her from dower. Consider the trust put in the hands of guardians ; suppose a female infant is married to a gentleman of a great estate ; the dower is one third, and yet she has a jointure made to her of only one tenth of the value; and notwithstanding this, as the law has entrusted parents and guardians with the judgment of the provision for infants, she shall not set it aside, upon the inequality between the dower and the jointure.” And it is after this that he approves what is said by Lord Macclesfield, in Cannell v. Buckle, 2 P. Wms. 243, as to a female infant having power to make a settlement by marriage articles of her real estate. Mr. Harrison cites Drury v. Drury, reported by the name of Lord Buckinghamshire v. Drury, 5 Bro. P. C. 370, and 2 Eden 39, as his leading authority. Now, that case relates entirely to a jointure made before marriage on a female infant, and is the leading case to shew that she is bound by it. She is bound by it, by the strength of the words of the English statute of 27 H. 8; she is not bound by it, by the statute of Virginia.
    
    Even in England, the doctrine as to an infant being bound by her settlement before marriage, does not extend to any other cases than those falling within 27 Hen. 8, c. 10, § 6. As to her own real estate, a female infant is not bound by any articles entered into, during her minority. Clough v. Clough, 5 Ves. R. 710; Milner v. Lord Harewood, 18 Ves. R. 275-6.
    III. With respect to the case of Tabb v. Archer, 3 Hen. & Munf. 399, this Court gave an opinion in favour of the obligation of a female infant, upon articles of marriage settlement, in themselves reasonable and fair. Upon that case, I have to remark that the Court did not advert to the difference between the statute law of the two countries. And in that case, the husband in his own and his wife’s name, while she was sub potesiate viri, had united in executing a deed contrary to the marriage articles which had been executed by them during the infancy of the wife. And the bill was brought to set aside this deed. The Court set aside the deed, and decreed a specific execution of the articles. The decree was undoubtedly right. The husband was bound by the articles, if the wife was not; and what he asked was, that he should be absolved from the articles, because his wife was an infant, and not bound by them. If he had been dead, and she had come into Court, in her own right, and asked that the articles, so far as they bound her real estate, should be set aside, the question we are now considering, would have arisen.
    IV. The deed of January 25th, 1783, purporting to be an execution of the marriage articles of April 22d, 1782, was not duly recorded, for want of the privy examination of the wife. It was, as to her, merely void. Currie et al. v. Page et al. 2 Leigh 617; Hairston v. Randolphs, 12 Leigh 445. It was void, as to her, not only as to the conveying parts, but as to the recital. This case, therefore, must rest upon the marriage articíes: and the question is, whether, under the circumstances of this case, equity can or will specifically execute Every bill for a specific execution addresses itself to the sound discretion of the Court. If the articles be not fair and reasonable, the Court will not decree specific execution against the wife. The articles covenant that the wife shall settle all her real and all her personal estate; 1700 acres of land, and 114 slaves, all of them the property of the infant feme:— The land to the use of the husband and wife, during their joint lives, remainder, if no child of the marriage, to the survivor of them in fee; but if any child of the marriage, living at the death of the wife, then, remainder after the death of the husband and wife, to such child or children, as the wife should limit and appoint ; and, in default of such appointment, to such child or children of the marriage as should be the right heirs of the wife. And as to 70 of the 114 slaves belonging to the' wife, the husband agreed that he would convey the same to the same use, as she had agreed to convey the land. She agreed to give him a fee simple in all her land in certain events, mentioned in the articles; and he agreed to relinquish his marital right in one half of her slaves in the events provided by the articles. It is remarkable, that if she had children by this marriage, she never could provide for any children by any other marriage; and the husband’s property was not bound at all. The Court will judge whether this was a fair and reasonable contract: I humbly submit that it was not.
    The articles bear date the 22d of April 1782. The husband died in 1802. There were many children of the marriage. Neither they nor the trustees were called upon by the children for an execution of the articles during the marriage. She retained possession of the land after her husband’s death, until her own death in 1832: It is obvious that the possession of the land was properly retained by her, whether it was claimed nnder the law or under the articles. During all that time, she never was called upon to execute the marriage contract. Whether she ever took anything under those articles does no wise appear. Under the circumstances of the case, the lapse of time would be a conclusive bar to a bill for specific execution. And the only answer to that bar would be, to shew that she had claimed under the marriage articles. There is, as I have said, no proof that she ever did claim under them. Mr. Harrison alleges that Robinson acknowledged in his answer that she did. I invite the Court to examine that answer ; and I submit that it does not acknowledge any such fact — that the answer, upon this point, is wholly hypothetical.
    But it is said that Robinson had notice of the articles, because he had notice of the deed which recites the articles. Of this fact the only evidence is the answer of Rowan; and the answer of one defendant is not evidence against another. But take it, that he had notice of this deed ; the recital in the deed is not evidence of the fact recited. The wife was sub potestate viri, as well as to the facts recited, as to the conveying part of the deed. The recital might have been false, Kenney v. Browne, 3 Ridgw. P. C. 462. Robinson says in his answer, that there was a floating rumour of the fact of the settlement being executed. This floating rumour was not enough to put him upon an enquiry; and can, upon no construction, amount to notice. Sugd. Law Vend. ch. 17, p. 490. Yet, upon this floating rumour coming to Robinson's ears, he made enquiry for the deed where, if any where, it was likely to be found, namely, in the clerk’s office of Middlesex, of which one of the persons claiming under the deed, and likely to be apprised of the truth, was the clerk ; and received information that there was no such deed. How can a person be charged with notice of the facts when he was only bound to enquire into the fact, when he diligently made enquiry, and upon such enquiry, received information that the fact did not exist ?
    
      Harrison, in reply. “It is remarkable,” says Mr. Leigh, “that if she had children by this marriage, she never could provide for any children by any other marriage ; and the husband’s property was not bound at all.”
    Now, this comes out in the argument of counsel, only in the Appellate Court. The inadequacy of the consideration for the settlement, or the unreasonableness of the contract, is no where put in issue by the pleadings, or alluded to in the answers of any one of the defendants. It was a material ground of defence, if put in issue-by the pleadings, and by persons capable of making such defence. And who should these persons be ? Either the wife, a party to the contract, or the issue by the second marriage, if any, or their descendants. But the wife, or widow, never complained of this in her lifetime ; and although she had for a long time the opportunity of making a second marriage, and perhaps by that marriage procreating other issue, it did not please her to do so. There is no issue of any second marriage ; the wife never did in her lifetime; and who then is there now in existence to complain of this inequality of the contract, or inadequacy of consideration, so manifest as to induce a Court of Equity to set it aside upon that ground, or as a circumstance which should have any influence in the determination of this cause, at the distance of forty-six years after the wife became a feme sole, and after she had ratified the contract by electing to take as her own property the seventy slaves secured to her by that contract! And although he settled no property of his own upon the wife, still, non constat that the mere marriage itself was not on the part of the husband a fair and adequate consideration for the marriage contract; more especially as two gentlemen of great respectability, her guardians, selected by her father as such, who prepared and signed the marriage articles, so thought. Is it reasonable then to presume that these guardians would have bargained away their ward upon unreasonable or inadequate consideration ?
    Again, Mr. Leigh says: “ But it is said that Robinson had notice of the articles, because he had notice of the deed which recites the articles.” And “ of this fact the only evidence is the answer of Rowan, and the answer of one defendant is not evidence against another;” but let it be remembered that Rowan claims under Robinson; Rowan claims in privity of estate, and although this answer be not evidence against Robinson, it is surely evidence against Rowan.
    
    Again: “ Robinson says, in his answer, that there was a floating rumour of the fact of the settlement being executed; but this floating rumour was not enough to put him upon enquiry, and can upon no construction amount to notice: yet upon this floating rumour coming to Robinson's ears, he made enquiry for the deed where, if any where, it was likely to be found,” &c. Well, then, this rumour was sufficient to put Robinson upon enquiry, and he did make enquiry where, if in existence, the deed was to be found. If one search the register, he will be deemed to have notice, unless it be proved that the search was confined to a particular period. Bushell v. Bushell, 1 Scho. & Lef. 90; Hodgson v. Dean, 2 Sim. & Stuart 221; 2 Sugd. Vend. 330.
    Now there is no proof of any limitation in the search made by Robinson, and it must be presumed that it was carried back to the date of the marriage, or it was altogether illusory and a mere blind search. There could have been no diligence in the search, or the deed must have been found, as it was afterwards upon search. The wife was entitled to the possession of all the lands and slaves settled upon her during her life. She died in 1832, and the issue instituted their suit in full time afterwards. There is nothing, therefore, in lapse of time.
   Bxldwin, J.

delivered the opinion of the Court.

The Court perceives nothing to disapprove in the decision of this Court in Tabb v. Archer, &c., 3 Hen. & Munf. 399. The essential principle of that decision is understood to be, that marriage articles made between an infant feme and her intended husband, beneficial to her and her contemplated issue, are obligatory upon the parties, and will be enforced in a Court of Equity by a settlement in conformity therewith, on the application of the issue of the marriage.

Such a contract is thus distinguished from other contracts, voidable at the election of an infant party. The distinction is believed to be wise and salutary. Infants at certain ages being capable in law of contracting marriage, if their contracts with the other party, made in contemplation thereof, and with the view of securing a provision for them and their offspring, could be set aside by them at future periods, by their mere election, the consequence would be, that such agreements or settlements could not be made with safety by the other party to the marriage without a special act of the legislature, and they would be greatly discouraged, or rendered not only precarious, but often mischievous.

The principle of this distinction is countenanced by the opinions of great English Judges prior to our revolution. It is true, that since our separation from the mother country, it has been shaken and perhaps overturned there by a contrary doctrine. But that furnishes no good reason why we should adopt views believed to be narrow and injudicious, especially against the authoritative adjudication of our own Judges.

The Court, however, though expressing, to avoid misapprehension, its approbation of the principle above mentioned, is further of opinion that the same is not properly applicable to the present case. Here the infant feme was no party to the marriage articles; which were made between her guardians on the one part, and her intended husband on the other; and which cannot have the effect of divesting her property, without holding that her guardians had authority without her concurrence, to alienate her estate. This would be unwarranted by any sound principle, unnecessary for the validity of marriage agreements and settlements, and impolitic, in subjecting minors to such dispositions of their property without their knowledge, and even against their will.

The Court is therefore of opinion, that the marriage articles in question were of no obligatory force upon the infant feme; and that the deed of settlement made after the marriage, in conformity with those articles, had no greater effect, being merely void as to her, (even upon the supposition that she had then attained full age, of which there is no evidence in the record,) for want of the privy examination required by law. In such a case, it is true, there may be acts of the feme, after she has attained full age, and when sui juris, of such a nature as to adopt or ratify the marriage agreement made for her by her guardian. What should be the character of such acts, it is unnecessary to consider in the present case, there being no evidence whatever tending that way.

It is therefore the opinion of the Court, that there is no error in the decree of the Circuit Court dismissing the bill of the appellants; and it is decreed and ordered that the same be affirmed, with costs to the appellees.

Allen, J. The wife never having executed the articles entered into between her guardians and intended husband before marriage, and while she was an infant, and there being no evidence of any election to take under the articles after the death of her husband, I concur in the decision affirming the decree; but express no opinion upon the question, whether it is competent for 'an infant to bind his real estate by a marriage settlement: ^ not being necessary to the decision of this case.  