
    Richmond.
    Woodson, trustee, v. Perkins.
    (Absent Cabell, P.)
    1. A deed of marriage settlement settles the wife’s property upon her for her exclusive use and benefit, and to be at her sole and only disposal; and then provides that the trustee shall convey and deliver the property, or any part of it, to such persons, in such proportions, and at such times, as the wife shall, from time to time, notwithstanding her coverture, by any writing under her hand and seal, attested by three or more credible witnesses, or by her last will and testament, executed in writing in like manner, before the like number of witnesses, direct. Held :
    1. That the wife is invested with the full power of disposing of or charging her personal estate, to all intents and purposes as if she were a feme sole.
    
    2. That the clause in reference to the mode of her direction to her trustee to convey, though it may enlarge her power, so as to enable her, by her sole act, to dispose of portions of the property embraced in the deed, which otherwise she could not have aliened by deed without her husband’s joining with her, does not operate to restrain or limit the general power of disposition which she retains over her personal estate by the terms of the deed.
    2. A married woman having given a mortgage on her separate estate, to secure a debt which she had contracted, afterwards obtains a further loan from the mortgagee. Upon a bill filed by her trustee against the mortgagee to redeem the mortgage, she will be required to pay the debt contracted since the mortgage, as well as the mortgage debt; if the interest of third persons is not affected by it.
    3. Upon an appeal from an interlocutory decree, the principles of the decree, and not mere informalities in the form thereof, are the proper subjects of consideration in the Appellate Court. The decree will not, therefore, be reversed for such errors of form; but will be affirmed without prejudice to the appellant’s right to move the Court below for a modification of the decree in these respects.
    4. There having been no misconduct in the trustee of a married woman, it is error to make a personal decree against him for the debt of his cestui que trust.
    
    
      5. On a bill filed by a trustee of a married woman, impeaching a mortgage made by his cestui que trust, and claiming the right to redeem, and praying for a settlement of accounts between the cestui que trust and the mortgagee, such settlement is made, and a full opportunity is afforded the cestui que trust to controvert the pretensions of the appellee, and a full defence is made. It is not necessary, in such a suit, prosecuted by the trustee, to assert and defend the rights of the cestui que trust, to make her a formal party.
    In April 1836, John H. Pence and Sarah B. Lyle being about to marry, they executed a deed, which, after setting out the property of Mrs. Lyle, recites that it hath been agreed that the said Sarah B. Lyle, after the intended marriage shall have been had, shall receive and enjoy during the life of the said John H. Pence, and after his death, the full rents, issues, hires and profits of the property, real and personal, aforesaid, and of all other property, real and personal, to which the said Sarah B. Lyle hath now right or title, or to which she may hereafter have right or title in any way whatever; and that the said property, with the interest, hires, rents and profits thereof, before and after the said marriage shall have taken place, and during the life and after the death of the said John H. Pence, shall be at the sole and only disposal of the said Sarah B. Lyle, notwithstanding her coverture, and in the same manner to all. intents and purposes, as if she were a feme sole. The deed then conveys the property to John Napier, in trust, “ that the said John Napier, his heirs and assigns, shall do and permit the said Sarah B., during the life and after the death of the said John H. Pence, to have, receive, take, use and enjoy all the interests, hires, rents and profits of said property, to and for her own sole use and benefit; and upon trust that the said John Napier, his heirs and assigns, shall and do convey, assign, transfer and deliver over all the said property, or any part thereof, unto such person or persons, and in such proportions and parts, and at such time or times, and in such manner and form as the said Sarah B. shall from time to time, notwithstanding her coverture, by any writing or writings under her hand and seal, attested by three or more credible witnesses, or by her last will and testament, executed in writing in like manner, before the like number of witnesses, direct, limit and appoint; to the intent that the said property, with the profits thereof, may not be at the disposal, or subject to the control, debts, forfeitures or engagements of the said John H. Pence, her intended husband; and in default of such direction, limitation or appointment by the said 
      Sarah B. in her lifetime, then to such person or persons as would inherit from the said Sarah B. under the laws of distribution in Virginia, as if she were to die a 7 . 7 7 . . feme sole, unmarried and intestate.” This deed was executed by all the parties, and was admitted to record in the clerk’s office of the County Court of Fluvanna, on the acknowledgment of Pence and Napier.
    
    In October 1839, Mrs. Pence executed a writing, under seal, attested by three witnesses, by which, after reciting that she was indebted to Benjamin M. Perkins in the sum of 757 dollars 77 cents, due the 1st of October 1839, she authorized and requested her trustee Napier to convey and deliver to Perkins five slaves by name, to him and his heirs forever; but upon condition that Perkins should reconvey said slaves to Napier for her benefit, if she paid to Perkins the said sum of 757 dollars 77 cents, with the interest, on or before the 1st of October 1840: but if she failed to pay the money and interest aforesaid by the time specified, then the slaves were to belong to Perkins in fee simple. In pursuance of this authority Napier conveyed the slaves to Perkins, upon the conditions stated in the paper executed by Mrs. Pence.
    
    In December 1840, Napier, as the trustee of Mrs. Pence, obtained from a Judge of the General Court an injunction to restrain Benjamin M. Perkins from taking possession of, selling or removing the slaves mentioned in the conveyance to him from said Napier, till the further order of the Court. In his bill, after referring to the deed of marriage settlement, and the other papers mentioned above, which he insisted was a mortgage, he charged that the same was procured from Mrs. Pence through fraud and undue influence; and that Mrs. Pence did not owe Perkins as much as he had induced her to believe she did. That Perkins was endeavouring by violent means to get possession of the said slaves ; and had threatened to run them off. He therefore prayed for an injunction, and that Perkins' account ° might be correctly settled.
    
      Perkins answered the bill, denying the fraud, and insisting that his account with Mrs. Pence had been correctly settled; he insisted that the conveyance to him was not a mortgage but a sale, and alleged that upon the execution of the paper the slaves had been put into his possession ; though he had always intended that if he sold them for more than he had given, or if he kept them and considered them worth more, that he would return to her the excess. That he so informed Mrs.
    
    
      Pence some time after the execution of the bill of sale to him, when he advanced to her the sum of 300 dollars, upon the understanding that if he could get for the slaves that much more than he had given her for them, he would not call on her for it; but if not, he should.
    When the cause came on to be heard, the Court below held that the conveyance to Perkins was a mortgage, and should be held as a security for any debt which Mrs. Pence owed to Perkins at the date thereof, or which had become due since: and it was referred to a commissioner to settle the account. The commissioner made two statements: the first, founded on the different evidences of debt held by Perkins, with interest thereon up to the time of taking the account: the second, taking the amount admitted to be due by the paper executed by Mrs. Pence in October 1839, with interest thereon from that time, and adding the sum of 300 dollars, which it was proved Perkins had advanced to her after that time, by paying an order drawn by her upon him in favour of Schlater. The only difference between the two statements was, that the interest due in October 1839 bore interest from that time in the second, and did not bear interest in the first. The plaintiff excepted to the first statement, because of some alleged errors and double charges in the accounts on which it was based; and to the second statement, for the same reasons, and also because interest was compounded.
    Whilst the cause was pending in the Circuit Court, the plaintiff Napier died; and Samuel T. Woodson having been appointed trustee in the deed of marriage settlement, the suit was revived in his name as plaintiff, and came on to be heard in April 1842, when the Court overruled the plaintiff’s exceptions to the commissioner’s report; and adopting the second statement, decreed that the plaintiff should pay to the defendant Perkins the sum of 1215 dollars 18 cents, with interest on 1057 dollars 77 cents, a part thereof, from the 1st of April 1842, until paid. And unless the plaintiff or some one for him, should, upon being served with a copy of the decree, forthwith enter into bond with good security in double the sum of 1215 dollars 18 cents, payable to the defendant Perkins, with condition to have the slaves included in the mortgage and the future increase of the females forthcoming at the expiration of six months from the date of the decree, to satisfy the same, that the sheriff should take the same into his possession forthwith, and after advertising the same for six weeks, should sell them, or as many of them as might be necessary, at public auction for cash; and out of the proceeds of sale should pay to Perkins, the said sum of 1215 dollars 18 cents, with interest as aforesaid. But if the plaintiff, or some one for him, gave the bond, then unless he paid the said sum of 1215 dollars 18 cents, with interest as aforesaid, to the defendant within the six months, the sheriff of the county should proceed to take the said slaves into possession and advertise and sell as before directed; and out of the proceeds pay to Perkins his debt, and pay over any surplus of sales to the trustee of Mrs. Pence. And each party was directed to pay his own costs. From this decree, Wood-son applied to this Court for an appeal, which was allowed.
    
      
      Patton, for the appellant.
    
      Cooke, for the appellee.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that, by the terms of the deed of settlement in the bill and proceedings mentioned, the said Sarah B. Lyle was invested with the full power of disposing of or charging her personal estate to all intents and purposes, as if she were a feme sole; that she retained said property, with all its privileges and incidents, one of which was the right of disposing of it. That the subsequent clause empowering the trustee to convey the property secured by said deed in such manner as she should from time to time, notwithstanding her coverture, by writing under her hand and seal, attested by three or more credible witnesses, or by her last will and testament direct, though it may have enlarged her power, so as to enable her by her sole act to dispose of portions of the property embraced in the deed, which otherwise she could not have aliened by deed without her husband’s joining with her, did not operate to restrain or limit the general power of disposition which she retained over her personal estate by the terms of the deed in question.

The Court is further of opinion, that, without reference to any supposed liability of the separate estate of a married woman to discharge her general engagements, as a necessary incident to such separate estate, arising from the capacity of contracting which the possession of a separate estate confers, the previous dealings of the parties and the circumstances of the case clearly shew, that the order drawn by the said Sarah B. Pence, on the appellee in favour of John Schlater, for 300 dollars, dated the 18th October 1839, was drawn with the intention of affecting the separate estate, was paid by the appellee upon the credit thereof; and such separate estate would be specifically liable for payment thereof, upon the ground of such intention and the credit so given as aforesaid, independent of any liability of the separate estate for the general engagements of the married woman.

The Court is further of opinion, that as between the original parties, and where, the interest of no third person was affected, it was proper in a bill filed to redeem the personal property mortgaged, to require the payment of the 300 dollars, as well as the debt secured by the mortgage. The rule that the heir shall not redeem without paying the bond debt of the ancestor, although the bond could not be tacked to the mortgage as against the mortgagor, has been adopted to prevent circuity of action ; and because thp mortgaged premises descended would be assets in the' hands of the heir, for the value of which he would be responsible to the creditor by obligation binding the heir. The reason of the rule applies with equal force to the separate estate of a wife. The wife cannot bind her person; but in equity, and equity only, her separate estate can be made liable for debts expressly, or by implication, made chargeable thereon; and it would be subjecting the parties to unnecessary costs and delay, to permit the party to redeem the separate estate covered by the mortgage, by the payment of the mortgage debt, and turn the creditor round to another suit in chancery to charge the same subject with another debt which was contracted upon the faith of, and intended to be paid out of, the separate estate.

The Court is further of opinion, that as the decree appealed from was interlocutory, and not final, upon such appeals the principles of the decree, and not mere informalities in the form thereof, are the proper subjects of consideration. That as there was no ground for a personal decree against the trustee, it would have been competent for the Court at any time before final decree, so to have modified said interlocutory decree as to have relieved the trustee from any supposed personal liability growing out of the general terms of the interlocutory order. And as no execution could issue on said interlocutory decree without the leave of the Court, ample opportunity would have been afforded to the trustee to protect himself from injury by correcting the interlocutory decree in this respect. And such opportunity may still be afforded, notwithstanding an affirmance of the decree, without prejudice to the rights of the trustee to move for and obtain such a modification of the interlocutory order as may relieve him from personal liability for any residue of the debt which may remain unsatisfied after the sale and application of the mortgaged property.

The Court is further of opinion, that as the bill was filed by the trustee asserting the rights of his cestui que trust, by impeaching the mortgage, claiming the right to redeem, and praying for a settlement of the accounts between the cestui que trust and the appellee; and it further appearing that such settlement has been made, and full opportunity afforded to the cestui que trust to controvert the pretensions of the appellee, and a full defence has been made, there was no necessity, in a suit so prosecuted by her trustee, to assert and defend her rights, to make her a formal party; and that the circumstances materially distinguish this case from those in which it has been held, that in bills filed to charge the trust estate, the cestui que trust is a necessary party.

The Court is further of opinion, that the exceptions to the commissioner’s report were properly overruled.

Decree affirmed, so far as it affects the principles determined by it, with costs, but without prejudice to the right of the trustee, or the power of the Court, so to modify the form of the decree as to relieve the trustee from personal liability for the debt decreed to be paid.  