
    Shaw and wife against Boyd.
    
      Monday, September 13.
    A female infant in contemptation of marriage, with consent of her parent and guardian gave her bond, in consideration of 500 dollars to be paid to her by her intended husband's executors, &c. after his decease, engaging to release her dower in lands, of which he should die seised, and after the death of her husband the 500 dollars were paid to her, and she by deed (being still a minor) released her dower to the heirs and representatives of her deceased husband, and the money was appropriated by her second husband to his own use. Held, to be no bar of her right of dower, and that she might recover in an action of dower without refunding or tendering the money. bar of her right of dower, and that she might recover in an action of dower without refunding or tendering the money.
    In Error.
    ERROR to the Court of Common Pleas of Fayette county.
    
      James Shaw, and Margaret his wife, late Margaret Boyd, widow of William Boyd deceased, brought this writ of dower unde nihil habet against Thomas Boyd, of a certain messuage and tract of land, with the appurtenances, in Fayette county, containing 232# acres, whereof the said William Boyd lately died seised, &c. Two pleas were pleaded by J J 7 r r j the defendant.
    1st. That Margaret Shaw late Margaret Boyd, on the 19th day of November, a. d. 1811, at the county aforesaid, before her marriage was had and solemnised with the said William Boyd, by her deed in writing under hand and seal bearing date the day and year aforesaid, and made , , , , , - , J and with the consent and advice ol Elizabeth ranee, her ther and only parent and guardian, in contemplation of the marriage to be had and solemnised between her and the said William Boyd, did agree with Thomas Boyd, (prout bond,) in consideration of $500 to be paid her by the executors or administrators of the said William, after his decease to release and quit all claim and right of dower, (inter alia,) which she at any time might have or be entitled to, of, in, to, or out of the lands, tenements, and hereditaments, of which the said William might be at any time seised during his life and that in pursuance of said agreement afterwards, to wit, on the 20th day of June, 1812, at the county aforesaid, and after the death of the said William Boyd, and in consideration of the $500 aforesaid, then, and there to her paid in hand by the said Thomas Boyd, the defendant, and Robert ^ ^ Boyd, administrators of the estate of the said William, then deceased; she the said Margaret Shaw, then Margaret Boyd, by her deed bearing date the day and year aforesaid, did remise, release, and forever quit claim unto the said Thomas Boyd, the defendant, Robert Boyd, and all the other children, heirs, and representatives of the said William Boyd,, and to their heirs, executors, administrators, and assigns, respectively, all, and all manner of dower, and right of dower, title, or claim thereof, which she, the said Margaret then had, might, should, or of right ought to have or claim, of, in, to, or out of, all the lands, tenements, and hereditaments whereof the said William Boyd was seised, from the time of his intermarriage with the said Margaret until his death, &c. prout deed, &c.
    2d. That the $500, so as aforesaid received by the said Margaret, have since her intermarriage with the aforesaid James Shaw, been applied and appropriated by the said James Shaw to his own proper use, &c,
    The plaintiff replied to the first plea of the defendant, that the said Margaret Shaw, late Margaret Boyd, was an infant under the age of twenty-one years at the several times of giving the bond, receiving the $ 500, and executing the release mentioned in the defendant’s said plea, &c.
    And to the defendant’s second plea the plaintiff demurred, and the defendant joined in demurrer.
    To the plaintiff’s replication to the defendant’s first plea, the defendant demurred, and the plaintiff joined in demurrer.
    The Court below gave judgment for the defendant.
    The case was now argued by Lyon, for the plaintiff in error, and Campbell, for the defendant in error.
   The opinion of the Court was delivered by

Gibson J.

There is no doubt that in England an infant’s dower may be barred by an equitable, as well as a legal, jointure, even though the settlement be of personal estate. In Drury v. The Earl of Buckinghamshire, (usually cited as Drury v. Drury,) 5 Bro. P. C. 570, a covenant to settle an annuity was held to be a bar, although no lands were charged, hut the Court set apart a particular portion of the personal estate as a fund for payment: and a settlement of stock and leasehold estate has since been held equivalent to a jointure. Williams v. Chitty, 3 Ves. 545. The fact of the feme having been an infant at the time of the marriage, is altogether inoperative; for a jointure derives its efficacy as a bar, not from any supposed contract or assent of the. feme, but by the positive provisions of the stat. 27 H. 8. c. 10. s. 6. which makes no distinction as to age. A jointure will, therefore, be available in the case of an infant, wherever it would be so in the case of an adult. The case of Drury v. Drury, seems to have been misunderstood, particularly in 1 Powell on Contracts, 53, where it is said that, as a consequence of the decision, a feme infant, may wave her dower by an agreement entered into on her marriage; but it appears, that both Lord Mansfield and Lord Hardwicke, without contradiction in this particular from the other Judges, who coincided in the scope of their opinion, entirely discarded the assent of the wife as an operative circumstance, and founded themselves on a jointure being a bar a provisions viri, and not ex contractu; and subsequent decisions have fully established the same principle. But the note appended to Caruthers v. Caruthers, (4 Bro. Ch. Rep. 506,) which contains the first report of Drury v. Drury, that was published, did not appear till a short time after the publication of Mr, PowelPs treatise, who seems to be inaccurately informed of the grounds of the decision. Chancery has, however, gone beyond the statute. That a settlement of a trust estate, should, in equity, be considered equally as beneficial and certain as a legal estate, or that a covenant to settle lands should be equivalent to an agreement executed, was to be expected : but that a settlement of personal estate should be held available, when the statute speaks only of land, is evidence that the doctrine holds, not by force of the statute, but in analogy to it. Whether such a settlement would be a bar with us, who have no court of chancery, I pretend not to decide, being determined to say nothing in prejudice of the question whenever it shall arise. It would at present be unnecessary ; for in the case of personalty the analogy must hold throughout; and, as the feme must have a freehold, there is no reason to say a gross sum, which was to be received as a consideration for having executed a bond, shall be considered as a provision settled on the feme in lieu of dower. But there was, in fact, no settlement by the husband, who did not execute any agreement, or bind himself, or his representatives. There was nothing but the bond of the wife conditioned for the release of her dower, in consideration of five hundred dollars to be paid by the husband’s executors ; and it is settled, a jointure is not a contract by the wife for a provision, but an actual provision by the husband. What is there, then, in the case, but a naked contract by an infant in expectation of marriage, with the advice and consent of her parent and guardian, which, notwithstanding the opinion that seems to have been entertained in Cannel v. Buckle, (2 P. Wins. 242,) and in Harvey v. Ashley, (3 Atk. 615,) is now finally settled to be altogether insufficient to bind her real estate, except perhaps in favour of the issue where they are purchasers : and which she may, at the death of her husband, if she has then come of age, confirm or avoid at her election. It is argued, that the bond operated as an implied covenant of the husband; but I know of no case to that effect; and if it were so, an agreement to settle an annuity might be implied in every case, and thus the infant’s naked agreemerit would always bind her indirectly. Then taking the contract to have been voidable, there is on these pleadings no act of confirmation by the feme herself, who was still an infant when she received the five hundred dollars. The question, therefore, is, whether the contract has been confirmed by her present husband, since her marriage with him. The matter of confirmation contained in the defendant’s second plea, which would answer an allegation of infancy only when it should be made, and which was doubtless intended to do so here, was pleaded atan improper time, and should have been reserved for the rejoinder to the plaintiff’s replication, before which, the ground of infancy could not be disclosed. The demurrer, therefore, to that plea, which was an answer to nothing that had been alleged before it was pleaded, but which was meant to anticipate something expected to be alleged afterwards, might be sustained at all events. But I choose to give the facts alleged, their full operation; and I admit, that confirmation by the husband woxxld bind both him and his wife during the coverture, as was held by Lord Hardwicke in the afore-mentioned case of Harvey v. Ashley, where the husband, having made a jointure during the coverture, which is voidable at the election of the feme, died, leaving the wife an infant, who married again without having determined her election ; and the second husband having entered on the jointure estate, it was held to be a confirmation as to both during the coverture. The second husband, therefore, has the same election, as far as his own interest is concerned, as the wife would have had, if she had remained sole. Here the ground of confirmation is, “ that the five hundred dollars so as aforesaid received by the said Margaret have, since her intermarriage with the said fames, been applied and appropriated, by the said fames, to his own proper use.” Then giving this matter its utmost effect, it is clear, that unless he knew the five hundred dollars were the identical money received as the consideration of the bond, and intended, when he used it, to ratify the contract, nothing of which is stated, the act of using the money would not, per se, amount to a determination of his election. But it is said, the plaintiffs cannot, at all events, recover in this suit while they retain the money received, which should have been refunded or tendered before the action was commenced. But this is not like those cases where chancery, which can prescribe the conditions on which it will interfere, compels the plaintiff to do equity before it affords him relief. A court of common law can impose no conditions on a party pursuing a legal right; and here the plaintiffs are claiming nothing from the chancery powers of the Court, but stand upon a legal title sufficient to enable them to recover. I grant that equity will sometimes, on matter appearing on the face of the contract, relieve against, or controul, a legal right arising from a special provision of the contract itself; as in the case of a mortgage or penalty, or a right of entry for nonpayment of rent; but these form a class of cases depending ou principles very different from those involved in the case before us. If the defendant has a right to have the money refunded, it cannot be enforced in this action : he must pursue his claim in the usual way. We are of opinion, that the judgment in favour of the defendant be reversed, and that judgment be entered for the plaintiff.

Judgment reversed, and judgment entered for the plaintiff. 
      
       The best report of Drury v. Drury is to be found, 2 Eden’s Rep. 39.
     