
    CAROLINE AND HENRY KAISER v. GEORGE W. STICKNEY, SURVIVING TRUSTEE, AND JOHN A. J. CRESWELL, ROBERT PURVIS, AND R. H. T. LEIPOLD, COMMISSIONERS OF THE FREEDMAN’S SAVINGS AND TRUST COMPANY.
    Equity. —
    No. 4552.
    I. A deed of trust executed by husband and wife upon her real estate as security for money advanced to the wife alone, is effectual to pass her title in the property for the purpose of securing the loan in a court of equity.
    II. A husband conveyed lands to a third party, who conveyed the same to the wife by arrangement, with the usual covenant of warranty. A creditor who advanced money to the wife for the improvement of the property and to pay off prior liens thereon, took a deed of trust upon the.property from both husband and wife. It was held that she could enter into the contract; that the deed was binding upon her, and that the court would make a decree of sale of the property to pay the indebtedness.
    STATEMENT OE THE CASE.
    The original bill in this cause was filed by Henry Kaiser and Caroline, his wife, for the purpose of preventing a threatened sale of property under the powers of a deed of trust.
    On the 17th day of April, 1871, Henry Kaiser and Caroline Kaiser, being indebted to the Freedman’s Savings and Trust Company in the sum of $12,000 for money borrowed from the trust company, made a joint promissory note for that sum, payable one year after date, with interest at the rate of ten per centum per annum. To secure the payment of this note, they exeeute'd, acknowledged, and delivered to Eaton and Stickney an ordinary trust deed, by which they conveyed to the trustees the property involved in the suit, with power to sell the same at public auction on default in the payment of the note. This note and the deed of trust were executed by both of the complainants. The money borrowed on this security was paid out by the proper officer of the trust company to remove various liens upon the property conveyed by tbe trust deed, and to pay for the erection of a building thereon. This disposition of the fund was made in pursuance of a written contract.
    After this money had been exhausted, another loan was negotiated for by the complainants from the trust company. On the 25th day of October, 1871, they borrowed the additional sum of $4,000, and jointly signed another promissory note for that amount, payable one year after date, with interest at ten per centum per annum, and to secure its payment jointly executed and acknowledged a second deed of trust, by which they conveyed the same property to the same trustees. This deed also contains the usual powers of sale in case of default. These trust deeds were promptly recorded. There is now due on this debt over $18,500 for principal and interest, and the taxes and arrears, which must be paid, amount to over $2,200, so that there is now due not less than $20,000, for which the property is bound.
    The original bill was exhibited, signed, and sworn to by Henry Kaiser and his wife. The grievance complained of is, that this first deed of trust was not the result of the joint act of husband and wife; that Henry Kaiser signed the deed “ by request as a witness,” and that he was not in any manner “ consulted” about it; and they aver that, as the husband of Caroline, Henry was her legal agent and entitled to the management of her sole and separate estate, and to the rents and profits thereof, and that the rents and profits thereof have been diverted to pay the interest on this $12,000 loan; and the bill further avers that Caroline, the wife, had no legal power to make the contracts held by the trust company. The deed is appended to and made a part of the bill, and it shows on its face that it was signed and acknowledged by both Henry Kaiser and his wife, Caroline. The second deed was also signed'and acknowledged by both of them.
    Simultaneously with the filing of the answer of the commissioners of the trust company, they filed a cross-bill asking that the property might be sold by a trustee appointed by the court, because of the harshness of the terms of sale prescribed by the trust deed. To this cross-bill Caroline, the wife, interposes an answer, in which she alleges that her husband is non compos mentis. The debt is not denied, and the mental incapacity of the husband is not sustained by the proofs.
    
      John A. Grow, for complainants.
    
      Enoch Totten, contra.
    
   Mr. Justice Humphreys

delivered the opinion of the court:

In September, 1867, Henry Kaiser, husband of Caroline, executed a deed to the lots in question to Frederick Johnson, who immediately conveyed the same, by deed, to the wife, Caroline, absolutely. This was a good conveyance, as no creditors of tbe husband contest. It is not pretended that he was indebted at the time. This conveyance was good, independent of the statute in force, in this District in relation to the sole estate of married women. Nor is this conveyance regulated by the provision that the title of the wife is as absolute as though she were a feme-sole. In regard to this conveyance, she is not to be regarded as a, feme-sole. Other rules regulate her powers and liabilities over this property.

. Having an estate in the property, without the intervention of a trustee, with limitations in the terms of settlement, she is to be governed in her disposition thereof by the rules of equity. Being the owner of this property, she borrowed, in 1871, of the Freedman’s Savings and Trust Company, the amount in controversy, and executed a deed of trust to secure the amount upon said lots. In this deed her husband joined. The matter may have terminated disastrously to the wife, but she got the money; and it is stated by the record furnished by her counsel — and such is the fact — that the husband was induced to convey the property to the wife.

She took charge of it, and now she complains that, as she was a married woman, she could not bind her estate. An unmarried woman of the proper age may make such disposition of herself and property, in the absence of fraud and im position, as she pleases. A married woman may contract in regard to her separate or absolute property in an equitable mode or manner. In a case of imposition or circumvention or fraud the courts would be very jealous in guarding a married woman, particularly against the intrigues of a husband, trustee, or other person holding a fiduciary relation. But when she assumes to go out on the broad field of trade and speculation, she must abide by her contracts. In this case the record shows us that she induced the husband to surrender his property to her management and control, and that she borrowed, on the credit and faith of her sole management of said property, a large amount of money. The law is too long and well settled, that any person coming into equity must do equity, for us to undertake to shake or unsettle that rule. Better let the old rule of the restrictions and liabilities of trustees to their wards and cestuis que trust remain as it is. But this case is not one, under the statute, of the exercise of power by a married woman as though she were a feme-sole, nor of the power of a married woman under a settlement, ante-nuptial or post-nuptial; but it is a question of a person, with .power to make contracts, asking a court of equity to relieve from the obligations of a prima-facie legal obligation, without even offering to perform any equitable action. The money has been obtained from the savings aud trust company; it has gone to build up the estate of complainant. Even the husband joined in the conveyance by deed of trust, and there is no offer to pay back what has been borrowed. It is sought to declare the whole matter of the obligation to pay back the money, or to hold the security therefor, void and of no effect. We cannot see the case in that light, and before this can be done the parties interested must procure the mandate of a court whose power we are bound to respect. The decree is affirmed.  