
    Thomas Barksdale, Trustee, and Sabina Payne, vs. Robert Keith Payne, Executor of J. W. Payne.
    Heard before Chancellor J. Johnston, Charleston, January-Term, 1835.
    DECREE. — The plaintiff’s claim, 1st, under the marriage settlement, certain bank shares, and the amount of Mr. Edwards’ bond. 2d. Dower in certain lots.
    The defendant objects to the marriage settlement, that it was executed by J. W. Payne, while an infant; that there is a want of mutuality in it, evincing unfairness in obtaining it, added to positive misrepresentation ; all of which he contends should set it aside, or at least, deprive the plaintiffs of the aid of this court, in compelling its execution.
    If he fails in this, he maintains that he is only accountable for the income of the bond, and bank shares, from the date of Mr, and Mrs. Payne’s separation. And to this, no objection is made.
    But he contends, that he is not accountable for the bond at all; because — 1st. Mr. Payne did not receive the money secured by it. 2d. If he did, he was an infant at the time. 3d. That he expended the money in a carriage and horse ; which he again sold, and ap. plied the avails to family expenses.
    And’he contends, as to the bank shares, that Mr. Payne is not chargeable with them. 1st. Because he did not receive them. 2d. That if he did, it was with the trustee’s consent, that be should apply them to repair the houses belonging to the trust, which he did; and that by the enhanced value, which the repairs imparted to the houses, in a subsequent sale of them, the trustee has been reimbursed.
    As to the dower, he contends that the plaintiff, by the original bill, as well as by the voluntary separation of Mrs. Payne from her husband, has forfeited her claim, but concedes, if she is entitled, the value of the dower may as well be assessed, and paid out of Mr. Payne’s assets, he having aliened with warranty.
    1st. As respects the validity of the marriage settlement. Conceding that the marriage settlement of an infant, stands upon no higher ground than any other instrument he can execute, this mar. riage settlement is, at most, voidable only. When an infant takes a benefit under a contract, he may insist on it, or rescind it; although the other party is bound, without any such liberty. But as an infant may affirm, the question is, whether Mr. J. W. Payne has affirmed this settlement. ?
    To the original bill in this case, he answers, after he has arrived at nearly thirty-three years of age, that he executed the settlement, and had even gone so far as to offer a compromise upon the basis of it. Does he claim the benefit of his infancy ? Not a word of that sort, or on that subject, escapes him. He goes further : he says that as the plaintiff had claimed more under his offer, than h® intended, he now puts himself on his legal rights. To set aside the settlement ? No, but to enforce it, by insisting on his full partió» ©f the income under it. Again, he insists, in the same answer, as one ground why he is not answerable for Edwards’ bond, that be contributed the money received on it, in giving additional value to the trust property, and thereby furthered the objects for which the trusts were created. Is this no affirmation ? If he was an infant when he received the money, and made the expenditure, (if he did make it,) he was at least of age, and nearly twelve years over it, when he made this defence. Then, why not say at once the deed is void, and I am not accountable ?
    He makes a similar defence respecting the bank notes which came to his hand in 1816, after he catite to full age. He says he bought a carriage with them, and is not accountable. Why ? Because the deed was signed when he was an infant? bio. But because the trustee concurred in this application of them.
    These acts are sufficient, in my opinion, to repel the objections to the settlement. Mr. Payne admits the settlement; puts in no plea in derogation of it; insists on his rights under it; and claimsto.be allowed for expenditures, on the ground, that he made them in part execution of the trust.
    Then, shall he be charged with the value of the bond and bank shares, with interest from the separation ? This is all that is claimed.
    As regards the bank shares, he did receive them. His answer admits that, and his brother, who was a witness, proves that he disposed of them in 1815 and 1816. He received them after he came of age. He is, therefore, accountable. He must account like any other trustee. If he show's expenditures, allowable under the terms of the trust, that will form a good discount for him. If he applied them in the purchase of a carriage, as he says he did, he may raise a discount for the original cost of the carriage, if it was suitable to the circumstances of the family, charging him again with the avails, when the carriage was sold, and again giving him credit for any proper expenditure of those avails. If he employed the bank shares in necessary repairs, as his executor thinks he did, he should be allowed a discount for the expenditures. And if he employed his own funds in those repairs, he should be allowed to the extent of the repairs. If his expenditure of his own, or his trust money, was not for repairs, but additions to the buildings, he should have credit for the amount which the improvement added to the price of the house, when sold, as trust property.
    As respects Edwards’ bond, the money, according to Mr. Edwards, was received by Mr. Payne, but' his wife gave the receipt. He was under age. But in his answer, long after he came of age, he admits that he received the money, and had the subsequent control of it. He made no objection of infancy, but retained the money. He may be allowed a discount for any proper expenditure, but he must account.
    2d. As respects the dow'er, IJ this case stood on the original hill, it could not be recovered; but the claim being distinctly made, as supplemental matter, in the bill of revivor, (and that not in the alternative of the settlement being not set up, as the defendant’s counsel supposes,) I see no reason why it should not be allowed.
    Let the commissioner, (alter ascertaining the assets of John Payne, if his executor does not not admit sufficient to pay the' plaintiff’s claims, hereby allowed,) make up the accounts, according to the foregoing opinion. Each party to pay his own-costs.
    J. JOHNSTON.
    Filed 4th January,-1836.'
    And from this decree, the defendant appeals, on the grounds :
    1. That the said marriage settlement is voidable, and ought)’ under all the circumstances of this case, to he set aside, and the' estate of John W. Payne declared not to be answerable for any of the property mentioned in the said settlement.
    2. That at all events, should the said marriage settlement be sustained, the defendí, nt is entitled to one moiety of the income of the settled property, to the time ol the death of the said John W.Payne.
   Chancellor J. J oiinston

delivered the opinion of the court.

When this case was before me, on the circuit, my attention wab too much drawn to Mr. Payne’s infancy; which was the weakest among the objections made to the deed.

The deed recites,- that Mrs. Bonneau was entitled, in fee, to a house and lot in Trudd sheet and absolutely to thirty slaves; which property she conveys to Mr. Barksdale, in trust; the income to be for the joint use of the parties to the marriage, during their joint lives ; and,- on the death of either,- the realty to go, in fee, and the personalty, absolutely, to the survivor, discharged from all trusts.

But, by the will of Mrs. Bonneau’s father, then and now in full force, the house and lot, and nearly every one of the slaves, are bequeathed to Mr. Gibbes and others, upon the following trusts and limitations.- The annual profits to be allowed to the separate' use of Mrs. Bonneau, (then the wife of Mr. Bonneau,) during her life only. At her death, the properly is limited to her children, who should be living at that time ; but if she should leave no child, them to such of her brothers and sisters, as should survive her, and the issue of such brothers and sisters as should have previously died.

There is no reference, in the deed, to this will. The recitals: and provisions in the former, so inconsistent with the provisions of the latter, ate evidence, that when the deed was executed, Mr-Payne was ignorant of the will. There is no evidence, that whea he filed his answer, or at any time after, during his life, he was in» formed of it.

That he was an infant, when he executed the deed, he knew “when he put in his answer, insisting on his rights under it. The answer might well, tbereiore, bt held a waiver ot the objection of.’ infancy. But it would be extreme injustice to construe it into a waiver of objections, arising Irons’fattss of which he Was never a.pp'riseti. On the contrary, his insisting on his rights Under the deed, is pretty clear proof that he supposed his rights were perfect to every thing which that paper purported to give him.

But what did the deed effectually give 1 What Mrs. Bonneati conveys was not her’s to convey. Y/hat the deed recites to be hers, was not heir’s.

The stipulations in the deed were parcel of- the marriage con» sideration. The fact, that stipulations were entered into, is evidence, that without them, the marriage would never have been solemnized. Mr. Payne’s entering into the marriage, was a pur-; chase, on his part, for valuable consideration, of every right whicli the deed purported to confer on him.

The deed professed ui give the parties equal rights, by giving the property to the survivor, whom that might be. And it asserted such a title in Mrs. Bormeau, as rendered it possible for the limita; tiou to take effect; and that each party should have a remedy to enforce his rights. The contingency of survivorship on the one hand, was set up against that on the other — contingency against contingency — as the real ground of covenant. Equality rights mutual remedies, equal chances, was the rule of the contract.

The assertion of Mrs. Bonneau’s absolute tide to the property, vvas in the nature of a covenant of seizin. Mr. Payne founded his expectations on it; and suppose d he ¡night get the property by survivorship. This assertion is contradicted by the will of her father. Was it ever heard of, that a party, who liad broken the covenant, on his part, in a material point, should have it specifically en*' forced against the other party 1

Again. The want of mutuality is fatal to the plaintiff’s claim, to enforce this deed. It professes to grant to Mr. Payne, upon a contingency, what upon no contingency, he could ever enjoy. It professed to give him a remedy, which could never have been effectually enforced. But I take it to be clear, that whenever a contract intends to give mutual lemedies, and there is something unknown to one or both the parties, which renders it impossible fos one of them, in a material point, to enforce his remedy, the- otfses shall never have a specific execution.

The property, which was in the condition I have described, eonw stituted the bulk of that embraced in the settlement. An acciden. tal failure in the title to an inconsiderable part of the property mentioned in a settlement, might not constitute a solid objection to it. But when there is a failure of the great objects of the parties, that cannot, and ought not, to be disregarded.

, Here, then, we have an application to enforce a contract, which, on its face, migrates a material fact; a contract, in which the party against whom the application is made, was ignorant of a material-fact ; a contract in which the mutuality of right and remedy, stipulated for, was rendered impossible by a fact unknown at the time of the stipulation ; thus frustrating the reasonable expectations-of the party sought to be bound.

It is not necessary that the defects of a contract be sufficient to rescind it. That is not the application now made by the defendant. The court may refuse to decree a performance, when it would not rescind. And the authorities are too clear to admit of a doubt, that whenever there is a concealment, or misrepresentation of material facts, whether designedly os not, or a material breach of contract by the other party, whereby the;reasonable- expectations and inten. tions of the party sought to be bound, have been frustrated, or his-remedies impaired, equity will not enforce the contract against him.

It is unnecessary to observe that the value of Mr. Payne’s rights-is not to be judged of by the event. He, in fact, died first. But the-fairness and equality of this contract, are to be judged of, as mat. ters stood at the time it was executed. He staked contingency against contingency. The one was the consideration of the other. And if the contract had been effectual, his rights under it were valuable ; and might have been disposed of for value.

It is said, however, that the defendant is bound to do one of two things : either account under the settlement, or give back the bond and bank shares, under the will of Mrs. Payne’s father, as if there never had been a settlement. But the defendant, if accountable on that score, is accountable to the trustees under the will.

It is the unanimous opinion of the court, that the circuit decree should be reformed, by reversing so much thereof, as directs an account of the bond and bank, shares.

J. JOHNSTON.

Petigru and King- for motion.

Hunt, contra.

Filed 6th March, 1837.

We concur,

WILLIAM HARPER,

DAVID JOHNSON,

Chancellor Desaussuke absent, from indisposition.  