
    Elizabeth Coleman vs. Wilson Coleman and others.
    
      Marriage Articles — Husband, and Wife— Trusts and Trustees.
    
    Furniture not included in the schedule to marriage articles, held, not to pass under general terms and provisions contained in the body of the instrument. Marriage articles covered certain property mentioned in the schedule, and provided that all property afterwards acquired by the wife, should be subject to the provisions of the instrument. Among the property mentioned in the schedule was the wife’s interest in lands of her first husband, -which had been1 sold for partition, and purchased by herself and R., and for the purchase money of which she and R. had given their joint bond with mortgage of the lands. On settlement afterwards had of the first husband’s estate, a balance due by R. on the bond and mortgage was transferred to the wife, and then C., her husband, under executions against R., purchased his equity of redemption in the lands: held, that the interest-acquired by the wife in-the amount due by R. on their joint bond and mortgage, was subject to the provisions of the marriage articles as property afterwards acquired by her.
    
      Held, further that C.’s purchase of the equity of redemption was in his own right, and not as trustee for his wife.
    BEFORE WARDLAW, CH., AT LEXINGTON,
    JUNE, 1856.
    Wardlaw, Ch. Most of the facts upon which the questions of this case depend are stated in the report of Coleman vá. the Bank of Hamburg, 2 Strob. Eq; 285, and for the grounds of my judgment, not much additional statements is needed.
    Before the intermarriage of James B. Coleman and the plaintiff, now his widow, they executed a deed bearing date August 29, 1838, whereby, after reciting that the “parties are seized and possessed of and entitled to considerable real and personal estate, which they are desirous should be secured ultimately to their respective children,” both of them having children by former marriages, it was covenanted and agreed between them and her son John P. Blewer, who interposed as her trustee, that in the event of marriage, 1. All her debts to her son John, as ward, and all the rest of her liabilities should be “paid and discharged out of the property which she is seized and possessed of or entitled to, a schedule of which property is signed by the parties bearing even date with these presents; and is to be taken and considered as a part of this deed; “with further provisions that the estate of said “James B. shall be exempt and indemnified from liability for her debts, and that her estate shall beexemptfrom liability for his debts; that he shall have power, by barter or sale of her property, to discharge her debts. Z. The said James B. should hold her said property for their joint use during their joint lives, and upon the death of one of them the said property, or so much as should remain of it, should be re-vested in her, if she were the survivor, or in her children” or appointees by will, if he survived. 3. Neither party to have any share in the estate of the other by common laws or statute, except as above. 4. “All the property, real and personal, which may hereafter fall to or be acquired by the said Elizabeth M. by -deed, will or otherwise, shall be subject to the operation of this instrument of writing in the same manner as the property now owned by her.” The schedule annexed to the deed specifies half of the land bought by her and Peter Redheimer, at the sale for partition of the estate of her former husband, John G. Blewer, (which land had been divided between Redheimer and herself,) and other lands and some slaves, and nothing more. In the former suit of Goleman vs. Bank of Hamburg, the present plaintiff is joined as a party complainant with her husband, but the bill was filed in conformity to his instructions, and its statements verified by his affidavit. I suppose that the statements of the bill bind as admissions himself and volunteers claiming through him, and are not conclusive on the wife. The bill contains no mention of the marriage articles, and the execution of this instrument is not now proved as against the infant defendants, although the execution was admitted by the adult defendants, and the counsel of plaintiff probably put off his guard.
    
      In the present proceeding the plaintiff claims the Redheimer tract of land, of which her late husband purchased the equity of redemption at the Sheriff’s sale under executions against Redheimer in August, 1843; or that her lien on said land arising from the delivery to her by Commissioner Terry of the bond and mortgage of herself and Redheimer may be foreclosed. She also claims some small articles of furniture owned by her before marriage; and I dismiss this part of her suit at once, with the-remark that the furniture is not within the reasonable intendment of the articles limiting the marital rights. Her claim to the land itself has as little foundation. Her husband bought the equity of redemption for himself, and not as her agent or trustee; and there is no merger of his title and her lien. The matter is so treated in the former case.
    The serious controversy in the cause relates to the existence of a lien in her behalf upon the land for the balance due to her from Redheimer on their bond and mortgage to Commissioner Terry, delivered to her by agreement as a security. 1 have had difficulty in determining this point. This lien is not specifically mentioned in the articles, although the bond and mortgage from which it arises had been previously given; nor is any debt or right in action belonging to her expressly settled. Still it is provided in the articles that all property subsequently acquired by her should come under the operation of the settlement and the agreement that the lien should subsist, and Redheimer’s default in payment creating the debt to her occurred after the marriage.
    In the bill of Coleman and Wife vs. Bank of Hamburg, sworn to by him, the circumstances inducing and attending the transfer of the bond and mortgage by Commissioner Terry are fully narrated, and it is expressly mentioned that by agreement between Coleman and wife, Redheimer and Terry, the bond and mortgage were delivered to Coleman and wife September 27, 1842, “as a valid and effectual lien upon. so much of the land in the said mortgage specified as had been allotted to the said Peter Redheimer in the aforesaid partition (between him and Mrs, C.) for the balance of $1,344 42, and interest thereon,” and that the bond and mortgage remained in the hands of Coleman and wife, and'that no part of said balance had been paid. In the course of the bill Coleman alleges that “combining in himself the mortgagee’s estate and the equity of redemption, he acquired a good and perfect title to the said landbut there was no attempt to have the respective rights of his wife and himself adjudged and determined. One of the prayers of the bill is that the said mortgage on the said land allotted to the said Peter Red-heimer may be declared to be a valid lien on said land in favor of your orator and oratrix, (Coleman and wife,) and that they may have all the benefits thereof in the same manner, and to the same extent that the said James Terry might have had, if he had retained the same and were now seeking a foreclosure, and that your orator and oratrix may be subro-gated to the rights of the said James Terry, touching the said mortgage.” 1 repeat, she is not concluded by the averments of his bill.
    A deed of marriage articles should receive a more benign construction than might be authorized concerning an executed conveyance, yet it would be unreasonable and improper to make interpolations in the articles without the clearest proof of mistake and miscarriage, of which none exists here. This proposition contains the view upon which I exclude the claim for furniture, and recognize that a chose may be included in the term property.
    The mortgage to Terry contains no operative words of grant of the mortgaged premises, unless they may be implied from the insertion of the clause “to have and to hold,” and from the instrument calling itself a release. I suppose, however, that it might be treated in this court as a valid agreement to mortgage which could be specifically executed. An imperfect writing of this description would at least be evidence of the intention of the parties; that the statutory lien under the act "of 1791 should still subsist. 1 uphold the lien.
    
    
      The whole tract of land purchased by the plaintiff and Redheimer was originally subject to the lien of the mortgage; but as the moiety of plaintiff was first aliened, (Adams vs. Nelson and Bendy, M. S'.) and as by express agreement in September, 1842, Redheimer’s moiety was to sustain this burden, the plaintiff has an equity, that this latter moiety should primarily satisfy the lien.
    
    It is adjudged, that the plaintiff is entitled to foreclosure of the lien for the balance due to her from Redheimer on their bond and mortgage by sale of the Redheimer portion of the land; but it is not safe now to order a sale. And it is ordered that it be referred to the Commissioner to ascertain the balance which may be due to her. If it appear on this accounting that the plaintiff, since the death of James B. Coleman, has received from the rents and profits of the Redheimer tract, all or any part of her debt, the proper .deduction for payment from this source must be made. So also if it appear that James B. Coleman paid the note of February 24, 1849, to Wm. Coleman, Sr., for $640, in which he was surety of his wife, from his own funds, and not hers, deduction may be made on this account. And considering the indulgence proposed to be granted to the plaintiff as to proof of the marriage articles, I further allow that the defendants may offer proof before the Commissioner on the reference., additional to the payment of the note or extinction of plaintiffs lien, by his payment of her debts, And finally, it is ordered that plaintiff may offer proof before the Commissioner on the reference of the execution of the marriage articles.
    The plaintiff appealed from so much of the decree as decided that she was not entitled to the land under James B. Coleman’s purchase of the equity of redemption at Sheriff’s sale; and also from so much as restricted her rights under the marriage articles to such property only as is specified in the schedule on the grounds:
    1. Because James B. Coleman, under the marriage articles, was the trustee in fact of the whole of his wife’s property, being possessed for their joint support With power to barter or sell for specified purpose; and the title to the land in question, which he acquired from the Sheriff for a nominal consideration, was obtained by him by means of the relation of trustee and agent of his wife, and was a speculation or good bargain based upon that relation and his wife’s separate property, under circumstances in which she had no power to act except through her husband. The Sheriff’s title, therefore, should enure to her separate benefit.
    
      2. By the general terms, meaning, and spirit of the marriage articles, it was the intention of the parties that all the property of each should remain and continue separate and distinct; and that the marital rights of the husband should not attach qpon any part of the wife’s property; the instrument of writing being only marriage articles and not a deed, and no creditors or purchasers being interested, it is submitted that the Court should restrain and debar the marital rights of the husband from attaching upon any part of the wife’s ^property according to the understanding of the parties, and the spirit of the agreement.
    The defendants also appealed from so much of the decree, as decided that the complainant was entitled to foreclosure of the lien, for the balance due, on the bond and mortgage upon the grounds:
    1. Because the said bond and mortgage are not contained in the schedule annexed to the marriage settlement, although they existed at the time of the execution thereof.
    
      2. Because the said bond and mortgage; were delivered to James B. Coleman and wife, in payment of her distributive share of her former husband’s real estate, which was due to her at the time of the execution of the marriage settlement.
    
      Baushett, for cómplainant.
    
      Boozer, Jones, contra.
   The opinion of the Court was delivered by

Dunkin, Oh.

By the ante-nuptial contract, 29th August, 1S38, it was stipulated that the covenants should become “obligatory in the event of the contemplated marriage taking effect.” No further settlement was covenanted for, or probably intended. Still, all such agreements should receive a liberal interpretation, in order to accomplish the obvious intention of the parties. The plaintiff complains that the furniture of the wife was not construed by the Chancellor to fall within the provisions of the articles, although not specified in the schedule. The preamble recites that the parties, respectively, are seized and possessed of considerable real and personal estate, “which they are desirous should be secured, ultimately, to their respective children.” The first article covenants for securing the wife’s property, “a schedule of which property is signed by the parties, bearing even- date with these presents, and is to be taken and considered as a part of this deed.” The furniture is not included in the "schedule, and the obvious conclusion is that the parties did not regard some articles of household furniture, probably to be worn out in the use, as of sufficient importance to be “ultimately secured to the children,” and were, therefore, not specified in the schedule. We are not called on, however, to speculate upon the probable views of the parties. The Court sees no cause to suppose that the omission of the furniture from the schedule was the result of accident or mistake, or that the same does not set forth a full statement of all the property which the parties who subscribed the schedule desired to have secured to their respective children.

The plaintiff, also, appeals because the decree did not declare the Redheimer tract to be vested in her under the purchase from the Sheriff, instead of establishing a lien in her favor under the bond and mortgage; while, on the other hand, the defendants insist that the bond and mortgage were given for her interest in her former husband’s estate, and were not included in the schedule, although they existed at the time. These objections may be conveniently considered together. The difficulty arises from some confusion in facts and dates, rather than from any doubts as to the legal conclusions.

The real estate of John G. Blewer, the former husband of the plaintiff, was sold by James Terry, Esq., former Commissioner of Edgefield, in 1837, for partition among the heirs. These heirs consisted of his widow (the plaintiff) and four children. At the sale, the plaintiff and Peter Redheimer, her son-in-law, purchased land to the amount of $10,000, for which they gave a bond, with sureties, and a mortgage of the premises to the Commissioner. Mr. Terry says, in his evidence, that the entire sales amounted to $13,795, of which the widow’s share was $4,500, or thereabouts. Very soon after the sale, the land purchased by the plaintiff and Redheimer was equally divided between them by metes and bounds. The proportion of the bond payable by the plaintiff exceeded her share of the estate. On her subsequent intermarriage with Coleman, in August, 1838, her half of the land thus purchased from Commissioner Terry, in April, 1837, is specially described in the schedule, and also that “it had been since divided between Redheimer and herself.” At that time, she was indebted to her son, John P. Blewer, as his guardian, and otherwise, and special provision is made in the articles that her debt to her son, as well as her other debts, should be paid out of the property included in the schedule. She subsequently sold to her son the land which she had purchased at the Commissioner’s sales, and at the same price. After these transactions, to wit: on 26th September, 1842, a settlement took place, in Mr. Commissioner Terry’s office, between the heirs of John G. Blewer, deceased. This matter is explicitly set forth in Coleman’s bill (under oath) against the Bank of Hamburg; in June, 1847. He says that, at this settlement, it was ascertained and agreed that the bond given by the plaintiff and Redheimer to the Commissioner, had been fully paid, except the sum of thirteen hundred and forty-four dollars and forty-two cents, which wag due by Peter Redheimer on his half of the bond — that the plaintiff was the guardian of her son, John P. Blewer, and “it was thereupon agreed that, instead of exacting the cash from the said Peter for-the balance due on said bond, which he was not then prepared to pay — that the said bond and mortgage should be delivered to your orator and oratrix towards the share of the said John P. Blewer, and should stand as a valid and effectual lien upon so much of the land in said mortgage specified as had been allotted to the said Peter Redheimer, for said balance of thirteen hundred and forty-four dollars and forty-two cents, with interest thereon,” &c. This is fully confirmed by other testimony. Among others Robert Haukison, who had married a daughter, and was present at the settlement, said: “ M rs. Coleman took Redheimer’s bond and mortgage out of the Commissioner’s hands. When he handed it to the old lady he said about $2100 was due, but that they could arrange it among themselves ; that, at this settlement, he (the witness) took a single handed note from Redheimer so that the bond might be given up to Mrs. Coleman.” He subsequently testified that “ John P. Blewer bought his mother’s share of the land before the settlement with Terry, and before he was of age — he took the land at cost — -the witness had first bargained for it — the price was upwards of $4,000. Mrs. Coleman paid her son his stiare of the estate by selling him this place; this sale threw the estate (or rather J. B. Blewer) in debt to her about $1,200, and for this the bond and mortgage were transferred to her. From this statement it is very clear that in August, 1838, the plaintiff’s outstanding bond, as co-obligor with Peter Red-heimer, to the Commissioner in Equity, was entitled to no place in a schedule of her property. Her share of the land, which was the consideration of her bond, was properly included, and constituted more than her share of the entire estate. But in consequence of the subsequent sale of her share of the land to her son, and the adjustment in the Commissioners office in September, 1842, she acquired an equitable title to the balance of $1,344 42, due by Peter Redheimer on the bond, and as an incident to the mortgage of his moiety of the premises. This fell directly within the second article of the marriage contract, by which the future acquisitions of the wife were declared subject to the operation of the instrument in the same manner as the property then owned by her. If, in 1837, Peter Redheimer had given to the Commissioner his separate bond for his moiety, on which, in September, 1842, a balance of $1,344 42 was still due, and the other arrangements above detailed took place, in order to give them legal form, Mr. Terry, the Commissioner, would have assigned to J. P. Blewer, as trustee, under the marriage articles, the bond and mortgage of Redheimer for the balance due. Such is now the light in which the rights of the parties are regarded by this Court. When, in August, 1843, Coleman purchased Redheimer’s equity of redemption at Sheriff's sale, there was no merger of right between debtor and creditor, and, consequently, no extinguishment of the debt. As standing in the place of Redheimer, Coleman may have become liable to pay the bond, but he had no right, either equitable or legal, to receive the money. The strict legal title was in the obligee and mortgagee, James Terry ; but the equitable right was in the trustee of the settlement, or the beneficiaries interested, according to the provisions of the articles. The husband, Coleman, purchased the equity of redemption for himself and took the Sheriff's conveyance to himself in October of same year, and the Court agrees with the Chancellor that there is nothing to fix him with a fiduciary character in this transaction. We concur generally in the decree and the decretal orders made at the Circuit. But in taking an account of the amount due on the bond of Redheimer, the calculation of interest must be suspended from the time of the transfer, in September, 1842, until the death of Coleman, in August, 1852. According to the terms of the settlement, James B. Coleman was entitled to hold the property for the joint use and benefit of himself and wife, during their joint lives. The interest, therefore, which accrued on the bond after it became part ofthe trust estate, he was entitled tc ' i iand'and receive during the coverture. From the posf ’ ^Kvhich he assumed on becoming the purchaser of the equity of redemption in August, 1843, it must be presumed that the interest, which had accrued since the transfer and which subsequently accrued until the period of his death, was extinguished and paid. With this explanation (which is not at variance with anything announced in the Circuit decree) the Circuit decree is affirmed, and the appeal dismissed.

Dargan and Wardlaw, CC., concurred.

Appeal dismissed.  