
    
      Jonathan M. Hill and wife vs. Henry H. Hill and John Bates, administrators. Henry H. Hill and John Bates, administrators, vs. J. M. Hill and wife and others.
    
    If there be a donation of personal property to several persons, with a limitation to survivors, in the event of the death of either without issue, and one" die and his portion is distributed among the survivors, and then a second die, the proportion of property of the first, taken by survivorship by the second, does not go over to the remaining survivors, but becomes the absolute property of the survivor to whom it so accrues; and the marital rights of thehusbandiof one of the several persons thus endowed, will attach to the portion or portions of the property originally taken by "the donees, which may survive ¡to -her, so as to vest the legal title m him absolutely; nor will his having joined her in a suit for its recovery, alter-the case.
    
      The rale is well known, that if there be a perfect legal title and the present right of possession, this is enough to vest the property in the husband, though there may be no actual, manual possession; and the husband may sue alone for the property, being thus vested with the perfect title.
    When husband and wife bring suit for a distributive share of an intestate estate, to which they are entitled in right of the wife, while the fund remains under the power of the court, it will, on a proper application in the cause, or where there is an original proceeding by the wife, for tire purpose, direct a suitable settlement to be made on her; nor will the alleged agreement with the administrator, to which tire wife was no party, that tire amount of his purchases at the sales should be discounted, by the husband, against the shares and interests of his wife, invalidate her claim.
    While the proceeds of a married woman’s real estate remain in court, they are subject to its disposition, and stand on tire same footing as her choses in action.
    
      Before Johnston, Ch. at Edgefield, June, 1843.
    The deed under which have arisen the questions here litigated, is as follows:—
    DEED.
    Know all men by these presents, that I, John P. Bond, of the State of South Carolina, and district of Lexington, in consideration of the natural love and affection which I have and bear for my children, Felix Paddon, Lucinda, Moses and Theodore S. Bond, and also for divers other good causes and considerations, I, the said John P. Bond, have given, granted and confirmed, and by these presents do give, grant and confirm unto the said Felix P. Lucinda, Moses and Theodore S. Bond, all and singular, twelve negroes, designated as follows, viz:
    First. I give, grant and devise unto my son Felix Paddon Bond, my negro girl Tener, (who I purchased of Warren Hart,) also Joe and Polly, (children of Thom and Peggy, and Esau. and Julia, whom I purchased of Mrs. Burket and Charles O’Neal,) to be his right and title, in whose hands, custody or possession soever they may be, with their future increase from the date of this deed.
    Secondly. I give, grant and devise unto my daughter, Lucinda Bond, my negro man Esau and his wife Julia, and their son Frank, to be her right and title, in whose hands, custody or possession soever they may be, with their future increase from the date of this deed.
    Thirdly. I gave, grant and devise unto my son Moses Bond, my negro girl Hannah, (who I purchased of Warren Hart,) and Thom and Philip, (sons of Esau and Julia, which I give to Lucinda -Bond,) to be his right and title, in whose hands, custody or possession soever they may be, with their future increase from the date of this deed.
    Fourthly. I give, grant and devise unto my son, Theodore Stanmore Bond, my negro girl Judy, (who I purchased of Warren Halt,) and Thom and Prince, (sons of Thom and Peggy, whom I purchased of Mrs. Burket,) to be his right and title, in whose hands, custody or possession soever they may be, with their future increase from the date of this deed.
    To have, hold and enjoy, all and singular the said negroes, as above designated, unto the said Felix P. Lucinda, Moses, and Theodore S. Bond, their heirs and assigns forever, to be and remain their right and property. That if either one or more of the said above named children should die without a lawful issue, that the deceased’s part or parts shall be equally divided among the survivors nominated in this deed, against me, my heirs, executors, administrators or assigns, and against every other person or persons whomsoever. Given under my hand and seal, this 2nd day of August, in the year of our Lord one thousand eight hundred and twenty-three, and of the forty-seventh year of the American Independence.
    Jno. P. Bond, [Seal.]
    Thomas R. Bond,
    Henry H. Hill,
    Nathan Norris.
    The main question in this case was decided by his Honor Chancellor Johnston, at Edgefield, June, 1836, and, upon appeal, his decree was affirmed in May, 1837. (The case is reported in Dudley’s Eq. Rep. p. 71.) From that time no proceedings-whatever appear to have been taken by either party until June, 1842, when a reference was had under the decree of 1836.
    The Chancellor, in that decree, after settling the proper construction of the deed, ordered an account to be taken according to the principles of the decree. John P. Bond, the elder, died in 1823, leaving six children by his first marriage, viz: — Martha, wife of Henry H. Hill, Epsiby, wife of John Bates, John P. Bond, Matilda, now Mrs. Daniel, Felix P. and Lucinda, the complainant, and two children by his second marriage, viz: — Moses and Theodore S. Moses died in 1826, an infant, unmarried and intestate; Henry H. Hill was his guardian. Theodore died in May, 1834, also unmarried and intestate. H. H. Hill and John Bates administered on his estate. Felix P. Bond died in September, 1834, unmarried and intestate. H. H. Hill and John Bates administered on his estate. On the 23d December, 1834, H. H. Hill and John Bates, administrators, sold the estates of Theodore S. and Felix P. Bond. At this sale, Jonathan M. Hill was present and bought property. At the sale of the estate, supposed to be Theodore’s, his purchases amounted to $2,544 00; at the sale of the estate of Felix P. Bond, his purchases amounted to $5,812 00; for the first amount, he gave his note to the administrators, with Bryan Deen and Theophilus Hill sureties ; and for the second amount, his note, with Theophilus Hill surety. In these purchases are embraced the negroes Tom, Polly, Judy and Philip, included in the deed of John P. Bond, the elder — these negroes sold for $3,244. The Commissioner, in his report, allowed to the complainants one-third of the value of the negroes given by the deed directly to Moses, one-half of the value of those given to Theodore, and the whole of the value of those given to Felix. And in distributing the estates of Theodore and Felix, adopted the principle that the portions which respectively accrued to, them, as the deaths occurred, did not survive under the deed, but Were distributable as intestate property. In making up the accounts between the parties, the Commissioner allowed to the defendants, by way of set-off, the amount of the two notes given by the complainant, J. M, Hill, at the sales aforesaid, except $945 21, which Theophilus Hill had paid to H. H. Hill on the judgment. Exceptions to the Commissioner’s report were filed by the complainants’ solicitor, that he had not allowed them the whole amount for which all the negroes embraced in the deed had been sold, and that he had allowed the defendants to set off the amount of said notes against complainants’ demands. And urging the expediency of securing the rights of the complainant, Mrs. Hill. Other exceptions noticed in the Chancellor’s decree, were also taken to the report. The Chancellor pronounced the following decree.
    Johnston, Ch. This is the same case upon which a Circuit decree has been already pronounced, which, upon appeal, was affirmed in December, 1837. The case is correctly reported by Dudley, at page 71; except that in the copy of the deed, the counsel who carried up the case omitted the fourth clause, which is as follows.
    
      “ Fourthly, I give, grant and devise unto my son, Theodore Stanmore Bond, my negro girl, Judy, (who I purchased of Warren Hart,) and Tom and Prince, (sons of Tom and Peggy, whom I purchased of Mrs. Burket,) to be his right and title, in whose hands, custody or possession, soever, they may be; with their future increase, from the date of this deed.”
    The Commissioner has made a report upon the accounts, as directed in the circuit decree ; to which both parties have excepted; he has decided upon the exceptions, and his de-L cisión is appealed from. It is upon these that the case now comes up. I refer to these proceedings for a statement of facts and explanation of the questions to be now adjudicated.
    The first exception of the plaintiff is : “ That, by the terms of the deed and the decree of the Court, the complainants are entitled to the whole amount for which the negroes, specified in the deed, were sold, in exclusion of the other supposed distributees of that fund, and that this amount, together with the price, ($800,) for which Felix Bond sold a part of the negroes to MacCarty, constitute the separate and exclusive property of complainants, no part of which is subject to distribution as the estates of Theodore or Felix Bond.”
    The Commissioner’s decision is as follows: “ The complainants’ first exception is overruled, on the ground that the accruing shares, under the deed, do not survive, but pass, as intestate property.”
    Neither the exception itself nor the decision upon it are sufficiently pointed, without a perusal of the pleadings and the report, to indicate the questions intended to be raised.
    It appears that, of the former beneficiaries under the deed, Moses and Theodore were full brothers, and that Lucinda and Felix were brother and sister of whole blood, but related ■to the two former by half blood only. Lucinda and Felix had three sisters and one brother of the whole blood.
    Moses died, a* minor and intestate, in 1826, leaving Theodore as his sole distributee; defendant, H. H. Hill, was his guardian. Theodore died, intestate, in May, 1834, leaving Felix and Lucinda and their three sisters and one brother aforesaid, his distributees. The said H. H. Hill was his guardian, and became his administrator.
    Felix died in September, 1834, leaving Lucinda and his three other sisters and brother aforesaid, his distributees. The defendants, H. H. Hill and John Bates, became his adminis•trators. Felix, in his life-time, had and- sold part of the negroes for $800, and his said administrators sold the residue after his death.
    The exception intends to assert that the whole corpus of the property covered by the deed passed over, by the terms of the instrument, and by virtue of the decree, by successive steps, to Lucinda, the last survivor among the beneficiaries.
    The Commissioner, in his report, ■ had taken a different view, which was, that upon the death of Moses his share passed, by the terms of the deed, to the surviving grantees, Theodore, Felix and Lucinda, share and share alike; each of whom thus became entitled to one-third of Moses’ share, in addition to his or her own original share. That upon the death of Theodore, his original share passed over, in virtue of the deed, to the two survivors, Felix and Lucinda, in equal portions; but that so much of the share of Moses as had survived to him, became distributable as intestate property, freed from the further operation of the deed, between his brother and sisters of the half blood, Felix, Lucinda, and the brother and three sisters aforesaid, who were his only distributees. That Felix and Lucinda, by this means, each became entitled, (in addition to his or her own original share) to one-third of Moses’s share, by. survivorship; to one-half of Theodore’s share by survivorship, and by the statute of distributions to one-sixth of so much of the portion of Moses as had survived to Theodore; and that upon the death of Felix, his original share only passed to Lucinda, by survivorship, under the deed; the rest of his accumulations aforesaid being divisible as his intestate estate, between Luchada, her three sisters and brother' before referred to.
    This view is inteiaded to be confirmed by his decision, overruling the plaintiff’s first exception.
    The authorities quoted by the defendants’ counsel abundantly sustain his position, that where a conveyance is made to a number of persons exceeding two, with limitations to the survivors, upon the death of the graiatees severally, the right of survivorship attaches only to the original shares, and aaot to the sub-divisioias. These last are lodged by the first transfer in the then survivors, which satisfies the terms of the instrument, aiad being so lodged are freed from the deed.
    It has been suggested, that the terms of this deed call for something beyond this ; that they provide, upon the deaths of the beneficiaries successively, for a transfer, not only of each oiae’s original share, baat of what that one had received, by survivorship, from any predeceased beneficiaries ; and that this process is to be carried on until the whole corpus settles in the last survivor. If the grantor has said so, he- should be obeyed. Every donor is entitled to be the sole legislator as - to the terms of his gifts. Cujus est dare ejus est disponere. But what has the grantor said here ? “ That, if either one or more of the said above-named children should die, without a lawful issue, the deceased’s part or parts shall be equally divided amongst the survivors nominated in this deed.” Upon these words, it is conteiaded that the proper construction is, that upon the death of any one of the beneficiaries, after the predecease of any other of them, not only his own original part, but the part he may have received from the predeceased, shall go over; and that this is called for by the word “parts” in the plural. But it is not evident that the words “part or 
      
      parts” are correlative to the number of children, the probability of whose decease is contemplated, and provided for, and who, in the words of the deed, may be “ one or more.” If “one,” his “part,” if “more”,than one, their “parts,” are limited over, meaning, certainly, the original parts of each. This is the plain intention of the paper, which is not to be sacrificed to a construction too narrow and literal. Such a construction, it may be pertinent to observe, by the way, would defeat the plaintiff, Mrs. Hill, altogether; and that by the same process of insisting upon the full effect of a plural noun. The limitation is to “survivors she, as the last, is only a “ survivor.” The latter would restrict.the operations of the deed, by way of limitation, to the last deceased, when “ survivors” were left, and deprive her not only of the original “part” of Felix, but o'f those “parts” he had acquired from his two ante-deceased brothers.
    The exception insists not only upon the terms of the deed, but upon the terms of the decree, as sustaining the plaintiff’s-claim. The only points decided by the decree, were that such limitations as are contained in this instrument might be effectually made, by a paper which is neither a trust deed, a marriage settlement, nor a testament; and that the limitations themselves were not void for remoteness. The answer sufficiently sets forth the facts upon which the accounts, which were ordered to the Commissioner without directions, might be made up. The Court concurs with the Commissioner in overruling this exception; ■ and it is overruled accordingly.
    The plaintiff’s second, third, fourth, and fifth exceptions, were neither argued nor insisted upon. Upon looking at the report and the Commissioner’s decision upon these exceptions, I see ho error, although the account might have been, and should have been, more methodically cast. These exceptions are overruled, and the Commissioner’s decision upon them confirmed.
    The sixth exception has been allowed by the Commissioner, and the report corrected accordingly, which correction is confirmed.
    The plaintiff’s seventh exception is, that “the Commissioner erred, in allowing the defendants credit for the amount of the' notes of Jonathan M. Hill, and others; the circumstances of the complainants rendering it highly expedient, that the rights of Lucinda Hill should be secured to her; and at all events, no larger credit should be allowed than .the balance due on these notes.”
    The Commissioner’s decision on this, is thus expressed. “ The seventh exception is sustained so far as to allow the defendants credit -only for the balance due on the notes, and the report is corrected accordingly. In other respects, it is overruled.”
    The notes referred to in this exception, (which should have been specified in the exception itself,) I find, upon examining the report, are;
    1. A joint and several note given by JonathanM. Hill, Theodore Hill and Bryan Been, to the representatives of Theodore Bond, for $2,544, payable 12 months after date, and dated Dec. 23,1834, the consideration of which is stated in the report to be “property purchased at the sale of Theodore Bond’s estate,” (by Jonathan M. Hill.)
    2. A joint and several note of Jonathan M. Hill and Theophilus Hill, given to the representatives of Felix Bond, for $5,812, due and dated as the foregoing note. The consideration of this note is stated in the report to be “property purchased at the sale of Felix Bond’s estate,” (by Jonathan M. Hill.)
    The report states that “judgments have been obtained on both the above notes, against the sureties only; and the surety, Theophilus Hill, has paid to the Sheriff, in the first case, (on the note first mentioned,) $31 50, and in the second case, $987 70; of the latter sum, $946 21, was paid Oct. 11,1838; the balance in both cases was paid 9th December, 1839, which was for costs.
    It appears that the sales of Theodore and Felix’s estates took place at the same time, and are spoken of in the bill as one sale. In the bill, which is brought by Jonathan Hill and Lucinda, his wife, jointly, it is stated “ that the complainant, Jonathan, was present at the public sale made by the defendants ; but having recently arrived from Alabama, where he resided, and not being well advised of his rights, he did not forbid the sale, but gave notice of his intention to seek advice, and bid and purchased largely.”
    We are to infer, from detached passages in the pleadings .and report, as well as from the intent with which these purchases were made, that the property purchased consisted of negroes covered by the deed.
    The first question under this exception, is, whether the purchases made by her husband amounted to' a reduction of Mrs. Hill’s interests into his possession. I cannot perceive that this did. It may be, that a sale made for division, with a distinct understanding and agreement, that the amount of the purchases made by the respective parties in interest, shall have the effect of satisfying the claims. But there was no such understanding here; at least we have no evidence of it. The sale itself was not impugned. It was disputed, that Mrs. Hill had an interest in the property or proceeds. The property was allowed to be sold, as the property of the intestates, respectively. Jonathan Hill became indebted for the amount he bought, as any other purchaser. The property purchased became his individual property, in virtue of his purchases. Now suppose that he had died, immediately after he effected them, will it be said that Mrs. Hill’s right to demand an account from the administrators, would not have survived to her, or that that right would have been defeated, simply by the administrators presenting the note of her husband?
    Then, there is no doubt, the administrator might have paid the husband the amount of the wife’s claim, without suit, and thereby barred her equity to a settlement, and this payment might have been made in his notes. But they have not done so. They contested her claim, and drove her husband and herself to a suit. Having come into this Court, is it competent for either the husband, or those in possession of that to which the wife is entitled, by any indirection to defeat her equity ? a remedy always administered by the Court at her solicitation, when it obtains possession of the subject matter. 1 think not.
    ■It will be remarked, that neither the husband nor wife requests or desires that his notes shall be given up to them in payment of her demands. The administrator, in opposition to their wishes, desires to discount them. Now, are they a good discount ? Set-ofTs must be mutual. That is, the parties must be the same on either hand. Are the notes of Hill and others, third persons, a set off against the claim of Hill and wife ? I incline to the opinion, that they are not.
    I incline, but with hesitation, to the opinion, that this exception should be sustained ; and it is ordered accordingly.
    Before quitting this subject, however, I would observe, that in no view that I can take, could the Commissioner’s report, as regards these notes, be sustained, by allowing the balance as established as due the defendants, by the plaintiffs. If the report were confirmed, it would amount to a judgment that the plaintiffs pay that balance ; and, in case of Mrs. Hill’s surviving her husband, she would be bound for it; which amounts, in effect, to a decree, that the wife is bound as survivor, for the notes of her husband alone. The balance should have been reported against him.
    We come, now, to the defendants’ exceptions.
    Of the first of them I shall take no further notice, than to observe, that I am satisfied with the reasons given by the Commissioner in overruling it; and it is overruled.
    
      The second complains of an error which the Commissioner has corrected ; which correction is confirmed.
    The third was abandoned, except as to the following part: “that the Commissioner has erred,” “in disallowing the note of plaintiff, J. M. Hill, to John P. Bond, of whom H. H. Hill is committee ; and such portions of the notes of J. M. Hill, for purchases at the sales of Felix and Theodore’s estates, as have been paid by his sureties.”
    The latter part refers to the payments already spoken of, made by the surety, Theophilus Hill, upon the notes which are the subjects of the plaintiffs’ seventh exception. The sureties are no parties to this suit, and, of course, cannot be recognized as asking to be repaid the amount advanced by them; and it would be a novelty, at least, if the defendants, already in possession of the sums paid, should be decreed to be entitled to the same amount from either of the plaintiffs, especially from Mrs. Hill.
    The first part relates to a note, mentioned in the report, “of J. M. Hill, dated March 13, 1835, payable to John P. Bond, on or before the 1st day of January thereafter, for $180 00.”
    The Commissioner deciding this exception says: “as to the note of Jonathan M. Hill, due John P. Bond, it would be a proper discount, if Bond was a party to the suit, which he is not.”
    After what I have said on the plaintiffs’ seventh exception, it is hardly necessary that I concur in the remark of the Commissioner, with this exception, that I do not think it would have been a good discomit if Bond were a party. This exception is overruled.
    It is ordered, that the report be re-committed, to be reformed according to the present decision.
    Recurring to the 7th exception of the plaintiffs, it was stated that Jonathan M. Hill had abandoned his wife, and having run through all the property in his possession, had left her in destitute circumstances ; and an application was made for a settlement upon her of what may be recovered in this case.
    It is ordered, that it be referred to the Commissioner to en-quire into the truth of these facts, and report the facts which he may ascertain by evidence; and that he report what would be a suitable settlement to be decreed in the premises, the name of a proper trustee, and the terms and form of a decree.
    The defendants appealed from the decree of the Chancellor, and moved to reverse the same, on the following grounds:
    1. Because, under the circumstances, they had a right to set off the amoimt of the notes of Jonathan M. Hill, given for his purchases at the sales made by the defendants, against the claims of the complainants.
    2. Because the defendants were, at least, entitled to set off the value of the negroes embraced in the deed, which were purchased by the said Jonathan M. Hill, against the claims of the complainants; and because the decree was, in other respects, contrary to law and equity, and the practice of the Court,
    Wardlaw, for the motion.
    
    The complainants also appealed, on the ground, that they were entitled to recover the whole amount for which all the negroes included in the deed of J. P. Bond, the elder, had been sold.
    Bauskett, contra.
    
    In December, 1844, without hearing the other matters involved in the appeal, the Court of Appeals made the following decretal order:—
    It is ordered, that this cause be continued, and that the defendant have leave to file a cross bill, making Bryan Deen and Theophilus Hill, defendants, charging them, as sureties, with the amoimt of the notes of Jonathan M. Hill, for his purchases at the sales of the estates of F. P. Bond and Theodore S. Bond: and that the brothel’s and sisters of Felix P. Bond, not provided for by the deed mentioned in the pleadings, as well as such other persons as the defendants, H. H. Hill and John Bates, may deem expedient, be also made parties defendants.
    That the bill allege, if such be the fact, that at the sales of the estates of Felix P, Bond and Theodore S. Bond, there was an understanding between the administrators of those estates, or either of them, or any of the parties claiming an interest in the said estates, and Jonathan M. Hill, that the amount of such purchases as might be made by Jonathan M, Hill, at the said sales, should be credited with the amount of his wife’s interest in the said estate, when it should be ascertained what the extent of that interest was; or that the cross bill allege such other agreement in that behalf as was made by the parties in interest; and that it set forth the understanding, if such existed, upon which the sureties of Jonathan M. Hill suffered judgment to be had against them at law, by the .administrators as aforesaid, for the amoimt of Jonathan M. Hill’s purchases, for which they had become bound; together with all other matters necessary to put in issue the points which may affect the final determination of this case.
    David Johnson,
    
      17 th December, 1844.
    
      Under this order the cross bill was filed, and the subsequent facts developed, as they appear in the following decree of his Honor, Chancellor Dunkin, who heard the case at Edgefield, June term, 1846:
    Dunkin, Ch. The principal cause has been twice before the Court of Appeals. The decision on the main question is reported in Dudley’s Eq. R. 71. It is proposed now to advert only to some of the facts, in order to a correct understanding of the decretal order, made by the Court of Appeals in December, 1844, under which the cross bill was filed, and the subsequent facts developed.
    Of the four children interested under the deed from John P. Bond, three had died intestate, to wit: Moses in 1828, Theodore in May, 1834, and Felix P. in September, 1834. Moses died an infant, leaving Theodore, his only brother of the whole blood and next of kin. The distributeei of Theodore were his four sisters and two brothers of the half blood, of whom Felix was one. At the death of Felix P., his estate was distributable among his sisters and brother. Henry H. Hill administered on the estate of Theodore Bond, and he, with John Bates, administered on the estate of Felix P. Bond. An order was granted by the Ordinary of Edgefield District, to sell the estates of Theodore and Felix P. Bond, on 23d December, 1834, on a credit of twelve months, purchasers to give note with approved sureties. At that time, J. M. Hill and his wife resided in Alabama. He attended the sale, however, and purchased largely. The sale bills amounted to $14,887, of which his purchases amounted to $8,356. He passed the winter in Carolina, and either at the sale, or in April following, gave notes with sureties, to the administrators, for the amount of his purchases.
    Proceedings were then instituted in this Court, in the name of J. M. Hill and wife, against the administrators of Theodore and Felix P. Bond, for the purpose of ascertaining the extent of their interests under the deed of 1823, and for an account of the estate of the intestates. The cause was heard at June Term, 1836, and a final decree pronounced by the Court of Appeals in December, 1837.
    The result of that decree was, that the complainant was absolutely entitled to one-third of the negroes which Moses Bond took under the deed of 1823, to one-half of those taken by Theodore, and to the whole of those taken by Felix P. The right of the complainants to a distributive share of the particular estates of Theodore and Felix P. Bond was not disputed, and an account was ordered to be taken on the principles of the decree.
    Pending the litigation, judgment had been entered against the sureties on the notes, but it was under the particular circumstances stated in the pleadings. The payment of about $1,000, which one of the sureties made in October, 1838, the administrator, H. H. Hill, afterwards offered to refund.
    From the time of the decree in 1836, affirmed in 1837, no proceedings whatever appear to have been taken by either party until June, 1842. This delay would appear entirely unaccountable, were it not for the fact, perfectly well known to the parties, that the amount due according to the principles of the decree, was about equal to the amount of J. M. Hill’s notes to the administrators. The impression of the acting administrator seems to have been, that the balance would be in favor of J. M. Hill. According to the report of the Commissioner, the balance may have been, slightly, the o'ther way.
    But in this interval sad events had taken place. The intellect of the complainant’s wife had become disordered. Pecuniary embarrassment had overtaken him, and they were now separated.
    A reference was had on 2d June, 1842, under the decree of 1836. At that reference, it was insisted, on the part of the administrators, Jhat the notes given by J. M. Hill should be discounted against his purchases ; and, they further insisted, that the amount paid by the surety should not be deducted from the discount, thus carrying out the promise which had been made by PI. H. Hill, the administrator, to the surety, that he would endeavor to protect his interests. The Commissioner accordingly allowed credit to the administrators for the amount due on J. M. Hill’s notes, but deducted what had been paid by the surety. On exceptions to this part of the report, the Chancellor says, “I incline, but with hesitation,to the opinion that this exception allowing the discount, should be sustained, and it is ordered accordingly.”
    In December, 1844, the Court of Appeals, without hearing the other matters involved in the appeal, gave leave to the defendants (the administrators) to file a cross bill, making the sureties of J. M. Hill parties defendants, as also the other distributees of their intestates; that the bill allege, if such be the fact, that, “ at the sales in December, 1834, there was an understanding between the administrators, or either of them, or either of the parties interested, and Jonathan M. Hill, that the amount of such purchases as might be made by him at the said sales should be credited with the amount of his wife’s interest in the said estates, when it should be ascertained what the extent of that interest was ; or that the cross bill allege such other agreement in that behalf as was made by the parties in interest; and that it set forth the understanding, if such existed, upon which the sureties of Jonathan M. Hill suffered judgment to be had against them at law ; together with all other matters necessary to put in issue the points which may finally affect the determination in this case.”
    The cross bill was filed on the 6th February, 1845. In relation to the matter embraced in the order of the Court of Appeals, the substance of the allegation in the bill is, that at the sales on the 24th December, 1834, and when the notes of J. M. Hill were executed a few days afterwards, it was “well known to the administrators that J. M. Hill and wife set up a claim on the estates of Theodore and of Felix P. Bond;” and it “ was supposed and expected,” that when the shares were ascertained, a settlement would be made, by discounting the notes of J. M. Hill against the amount of the shares in the estates, although the administrators allege that they “ do not know or admit,” that there was any express agreement, or obligatory arrangement, to that effect.
    In his answer to the bill, thus filed, Jonathan M.Hill states that, immediately previously to the sale of December, 1834, he and his wife arrived in Edgefield, from their residence in Alabama, and that the leading object of their visit was to assert the said Hill’s exclusive claim to the negroes embraced in the deed of John P. Bond ; that from the shortness of the interval between his arrival and the time appointed for the sales, he had no opportunity to consult counsel, or adopt measures to prevent the sale, and under the circumstances, he thought it best for the interest of all the parties not to forbid the sale, but to give notice of his claim, to the administrators. That he did give notice to both the administrators, that he claimed an exclusive right to all the negroes embraced in the deed from John P. Bond — that “ prior to the day of sale, and on the day of sale, he held full and free conversations with the said Henry PI. Hill and John Bates, representing the estates aforesaid of the said TheodoreS. and Felix P. Bond,” in reference to the sales about to be made by them, and the interest of the defendant in the property to be sold — that they were not disposed to admit the claim of the defendant to the extent asserted by him, and the result was an understanding, distinct, “ express and positive,” between the said administrators and himself, that he would bid at the sales, and that the interest of the defendant, in right of his wife, in the negroes, and in the estates of Theodore S. and Felix P. Bond, should be credited on the purchases of the defendant at the said sales, whenever the interest should be ascertained; that “ it was upon this distinct agreement and understanding” between the administrators and himself, that he bid at the said sales; that after the sale, on a conference held with the administrators, it was supposed that his purchases of the property of Theodore would, (or might,) in any view, exceed his interest in that estate, and for that reason, it was agreed that Hannah and her two children, which had been bid off by him, should be set down to Walter S. Daniel, which was accordingly done. It may be as well, in this connexion, to remark that, at the hearing, it was admitted that this change had been made.
    The defendant, J. M. Hill, in his answer further states, that after the sales, the administrators and himself attempted to ascertain and determine, without litigation, the extent of his interest, but their efforts were unsuccessful, the said H. H. Hill insisting that the defendant had no interest whatever in the negroes, as survivor; that their attempts at settlement were protracted until the 20th April, 1835; that the defendant becoming then satisfied that their efforts would be unavailing, was about to return to Alabama, leaving instructions with counsel to prosecute his rights; that it was thereupon agreed between the administrators and himself, that he should give his notes for his purchases, upon the same understanding as existed at the sales — that he accordingly, on that day, gave his note for $5812 50, with Theophilus Hill as surety, for the purchases at the sales of Felix P. Bond’s estate, and a note for $2544, with Theophilus Hill and Bryan Deen, as sureties, for his purchases at the sale of Theodore’s estate — that he remembers the notes to have been executed on that' day, although dated as of the day of sale, from the fact that on that day a mortgage of four negroes was prepared and witnessed by the complainant, Henry H. Hill, from the defendant, to his sureties, to indemnify them against any loss on account of the note of $2544. That the mortgage was given in the presence of the said H. H. Hill, and of the mortgagees, upon the conclusion, after an estimate made, and belief of the defendant and H. H. Hill, that as his interest in the proceeds of sales would, in any event, secure the said Theophilus Hill on the note of $5,812, it was not necessary for the said sureties to take any sort of indemnity beyond the note for $2,544, aforesaid — that, at the execution of the notes and mortgage, it was expressly stated, and well understood by all the parties, that the said notes were only given to secure the administrators the excess, if any, of the defendant’s purchase over his interest in the property sold, “and but for this distinct agreement and understanding, existing at the said sales, and renewed when the said notes were given, the defendant never would have consented to the said sales, or executed said notes, nor would the said Theophilus Hill and Bryan Deen, as the defendant believes, have become his sureties.”
    
      The defendant insists, that he is entitled to have the interests derived under the deed of J. P. Bond, and the interests in right of his wife in the estates of Theodore and Felix, discounted against his notes, according to the agreement and understanding; and that especially as to his interest in the proceeds of the negroes embraced in Bond’s deed, as declared by the Court, he .had a plain, legal right therein, and the amount should be credited on his notes as of the day of sale.
    The answer of Theophilus Hill and Bryan Deen is to the same effect, and they “ solemnly aver, that it was their distinct understanding, at the time of the execution of the notes, that they were only to be held responsible for any excess which might remain due on those notes, after deducting the interest of Jonathan M. Hill, in right of his wife, in said estates.” They further aver, that about the time they became sureties, and afterwards, they were told by H. H. Hill, who had almost the entire management of the estates, that he believed there would be enough in his hands belonging to the said Jonathan M. Hill to satisfy the said notes.
    As to the judgments at law, obtained in 1838, the defendants aver that they were permitted to be entered at the earnest solicitation of the complainant, Henry H. Hill, who assured the defendants, that it would be better for them, so far as concerned the application of Jonathan M. Hill’s interest in the estates to the payment of the notes. And the defendant, Theophilus Hill, avers that it was the express understanding and agreement, between the said Henry H. Hill and himself when he consented that judgment might be taken against him, that he, the said Theophilus, was only to pay upon the said judgment whatever might remain after deducting the interest of the said Jonathan M. Hill in the said estates. That when-the defendant, in October, 1838, made the payment mentioned, it was at the earnest request of the said Henry H. Hill, for the purpose of enabling him to meet a debt, due by him, as administrator, and under a positive and distinct understanding, that if J. M. Hill’s interests equalled the amount of the notes, this sum should be refunded; and that, on two different occasions, when the defendant afterwards applied to the said Henry H. Hill to refund the money so paid, the said Henry was willing and agreed to do so, provided the defendant would take in payment a negro man, valued at one thousand dollars, or a tract of land adjoining the defendant’s residence, but which he declined to do.
    It was proved that the mortgage of 20th April, 1835, from . J. M. Hill to his sureties, was in the hand-writing of Henry H. Hill, and was attested by him. It was also proved by James Richardson, that sometime in 1842, at his father’s house, Henry H. Hill told the witness that he had offered Theophilus Hill a negro at $1000, in part for the money which he had advanced for Jonathan M. Hill — that the impression left on the mind of the witness was, that they did not trade, because the price asked by Henry H. Hill was too great.
    Another witness, Benjamin Stevens, said that he had talked with H. H. Hill at his (witness’) house, two or three years after the decree in Jonathan M. Hill’s favor. Henry H. Hill said that “ things had not been settled in the Clerk’s Office he said “ he thought he would fall in debt to Jonathan M. Hill from eight hundred to a thousand dollars, from a rough calculation — said that a man was not apt to force a settlement on himself when he knew he would fall in debt.”
    Sanders Guignard testified, that a few days before the hearing, he was at the house of John Bates, .one of the administrators, who resides in Lexington. In reply to an inquiry of the witness as to the agreement, at the sales in December, 1834, Bates told him it was his understanding at the sales, that the purchasers should have credit for their legacies, (as he expressed it.) He mentioned the amount at which the shares were estimated, and particularly the mode of settlement with Daniel, one of the distributees, and requested the witness to inform the counsel of the sureties of what had passed between them.
    It is proper to remark, that in 1845 Henry H. Hill was appointed the committee of Mrs. Hill, the wife of Jonathan M. Hill, and that he filed an answer, on the 26th June,-1846, insisting on a settlement of her interest.
    The Court need hardly say, that for the purposes of this judgment, the decree of 1837 is the law of the case, and that the Circuit decree of June, 1843, is equally so, except in relation to the right to discount the notes of J. M. Hill. On this subject, it is presumed, the Court of Appeals expected the opinion of the Circuit Court on the state of facts as they might appear on the new pleadings and proofs.
    In Heath vs. Heath, 2 Hill C. R. 104, the Court say, “there is no doubt that when the wife has a perfect legal' estate in goods and.chattels, whether it be in severalty, joint tenancy, or in common, it will vest in the husband, jure mariti.”
    
    If he can obtain possession without the aid .of the Court of Equity, he will hold them discharged of the rights of the wife. In relation to the rights of J. Mr Hill, under the deed of John P.' Bond, it is only necessary to apply this very familiar doctrine to what was declared by .the Court, in the decree of 1837; the right to one-third of the negroes held by Moses, to one-half of those held by Theodore, and to the whole of those held by Felix P. Bond, was a perfect legal estate, which he could have established, and reduced the property into possession by an action at law, in his own name. After the negroes had been sold, the proceeds might have been recovered by the ordinary action for money had and received to his use.
    The negroes formed no part of the estate of the intestate. No aid whatever was required from the Court of Equity. The complainants, Henry H. Hill and John Bates, were in possession of his funds, under an implied contract, which the law would recognize and enforce, and his right to direct the appropriation was perfect and irresistible.
    But the complainants in the cross bill held also other funds in which J. M. Hill was interested in right of his wife, as one &f the distributees of Theodore S. Bond and oí Felix P. Bond. This right had accrued during the coverture. As is very fully explained in Addison vs. Boozer, (MS.,) May, 1846, the administrators might have settled with the husband, and on his individual receipt. He could have instituted proceedings in his own name for the recovery of the claim, and the only effect of joining his wife was, that in the event of his death before judgment, or after judgment and before satisfaction, the right would have survived to the wife. But the husband had, at all times, the right “ to assert his exclusive claim,” either by discontinuing the suit, compromising the debt, or receiving payment, and entering satisfaction on the judgment.
    Such being the rights of the defendant, J. M. Hill, as a distributee of Theodore S. and Felix P. Bond, deceased, on the 23d December, 1834, it appears to the Court to have been very satisfactorily established, that the sale was permitted to proceed, and the purchases of J. M. Hill were,made, under a distinct understanding, which both parties knew to be mutually entertained, that the amount of Hill’s purchases were to be discounted against the amount of his interests in the property sold, whenever the extent of his rights was ascertained. That the same understanding existed, was known by all parties to exist, and was permitted to exist, when the notes of J. M. Hill, for the amount of his purchases, were afterwards executed by himself and his sureties.
    In addition to the evidence of the agreement itself, the conduct of the parties speaks a language not to be misunderstood. The memory of witnesses may fail. A change in their interests may imperceptibly warp their recollection of facts, or change their construction of language or of facts. Assuming the existence of the understanding or agreement that the notes were to be discounted against the shares when the extent of the right was ascertained, the subsequent conduct and declarations of the parties are-uniform and consistent.
    The defendants Jonathan M. Hill and his sureties, aver that such was the agreement, distinct and positive, without which the notes would never have been executed. The admissions of John Bates were proved at the hearing.' The only one of the original parties who does not admit an “ obligatory agreement,” although he “admits the understanding” to have existed, is H. H. Hill. He was the acting administrator, charged principally with the settlement of the- estates, and most intimately acquainted with the rights of the several parties. From December, 1837, when the extent of J. M. Hill’s rights was definitely settled by the decree of the Court of Appeals, until June, 1842, no proceedings whatever are taken under the decree. His receipt of nine hundred and fifty dollars, from one of the sureties, in October, 1838, is no exception, but strongly confirms the inference deducible from this long acquiescence ; for it is distinctly proved that he offered, subsequently, to refund the amount which had thus been received from the surety.. But the declaration of Henry H. Hill to the witness, Benjamin Stevens, two or three years after the decree of 1837, fully explains the delay. The notes of J. M. Hill, if they were not to be discounted, were probably barred, as to him, by the statute of limitations. But judgments had been entered in the Clerk’s office against the sureties. Under these circumstances the conversation took place, in which Henry H. Hill said to witness, that “ things had not been settled in the Clerk’s office ; that from a rough calculation, he thought he would fall in debt to J. M. Hill from eight hundred to one thousand dollars — that a man was not apt to forceja settlement on himself when he knew he would fall in debt.” And doubtless, it was under this abiding conviction, and that, at least, nothing was due on Hill’s notes, that he offered to repay to his brother, Theophilus Hill, the money which he had, (in his language) advanced for J. M. Hill.
    But it was furthermore proved by the witness, James Terry, Esq., the former Commissioner, that at the reference in June, 1842, H. H. Hill was present, and he, with John Bates, his co-administrator, insisted that J. M. Hill’s notes should be discounted against his share of the estates, and that there should be no deduction from the discount on account of the payment by Theophilus Hill, the surety. When the Chancellor sustained the exception to so much of the report as allowed the discount, the appeal was made and prosecuted on behalf of the administrators. But the facts in relation to the mortgage of 20th April, 1835, afford strong circumstantial evidence, that the administrator, H. H. Hill, as well as Jonathan M. Hill and his sureties, acted on the understanding and agreement, that so far as J. M. Hill’s shares extended, they were to stand as a discount against his purchases. J. M, Hill was about leaving the country, carrying with him the negroes which he had bought. In order to indemnify the sureties against any possible liability, H. H. Hill himself pre-. pares the mortgage and witnesses its execution, by which the sureties are protected from loss on account of the note of $>2,544 alone, thereby leaving the note of $5,812 to be paid by the shares of J. M. Hill, known to be amply sufficient.
    Without dwelling farther on the testimony, it appears to the Court very conclusive to establish the agreement that the interests of J. M. Hill in the sales of December, 1834, were to be deducted from, or discounted with, his purchases at the said sales ; and that this agreement was well understood by all the parties when the notes were executed for the purchases, with the defendants as sureties. This agreement was, on the part of Jonathan M. Hill, such “an assertion of an exclusive claim,” as is stated in Addison vs. Boozer to be sufficient to vest the right in himself. Having directed the appropriation of the fund in the hands of the administrators, to the payment of his own notes, held by the same parties, and they assenting to the arrangement, the Court will consider that as done which was agreed to be done, so soon as the amount was ascertained.
    The Court is of opinion, that the account should be stated on these principles, and that the administrators should be perpetually enjoined from enforcing their judgments at law against the sureties, beyond any balance which may be ascertained to be due on these accounts, tlms stated. The Court is further of opinion, that under the tacts now developed, the surety, Theophilus Hill, is entitled to re-imbursement from any portion of the shares of J. M. Hill which may remain after payment of what was due on his purchases. It is ordered and decreed, that the sales of the lots in Hamburg, described in the pleadings, be confirmed.
    It is further ordered, that the Commissioner state and account between the parties, on the principles of this decree, and that he report the result.
    The defendant, Lucinda Hill, by her committee, Henry H. Hill, appealed from the decree of his Honor, Chancellor Dun-kin, on the following grounds :
    1. Because there was no sufficient evidence of an agreetaent between the administrators of T. and Felix Bond, on the one part, and Jonathan M. Hill, on the other, that the amount of his purchases at the sales should be discounted against the shares and interest of his wife, Lucinda Hill, in the property sold, to make such alleged agreement binding on the parties.
    2. Because the cross bill of the administrators having been filed under the compulsory order of this Court, the facts stated in the answers of the defendants thereto, should not have been received and considered on the hearing as established by the ordinary rules of evidence and practice of this Court.
    3. The sale of the property by the administrators did not change or affect the equity of Lucinda Hill, as distributee of the estates, or as survivor of Moses, Theodore and Felix Bond.
    4. That as there was no partition made of the negro slaves, held by Moses, Theodore and Felix Bond, under the deed of John P. Bond, or of any portion of their absolute estates, the interest of Lucinda Hill in the same never vested in possession, and consequently the marital rights of the husband never attached.
    5. Because the marital rights of Jonathan M. Hill, in the shares of his wife, as a distributee of the estates of Mosesj Theodore and Felix Bond, or as survivor of them, under the deed of John P. Bond, have never vested in possession.
    6. That even if the marital rights of Jonathan M. Hill did attach to the interest of his wife, Lucinda, in the negro slaves limited over to her as survivor, successively, of Moses, Theodore and Felix Bond, yet the said Jonathan M. Hill conceded to her an interest in the same, by joining her with him, as plaintiff in the suit instituted by him in this Court, and by claiming the proceeds of the sales instead of the specific slaves.
    The defendants also appealed from the decree of his Honor, Chancellor Dtjnkikt, in this case, on the ground :
    That his Honor erred in adopting the decree of his Honor, Chancellor Johnston, in the case of Jonathan M. Hill et al. vs. H. H. Hill and John Bates, administrators, as the law of this case in relation to what are denominated the accruing shares of the negroes embraced in the deed from John P. Bond, the elder, and will insist that all the negroes, by the proper construction of said deed, passed to Mrs. Lucinda Hill, as the last survivor of the donees, and were vested absolutely in her husband before the sale by the administrators of Theodore and Felix Bond, on 23d December, 1834,
    Bauskett, for the motion.
    
    Griffin, contra.
    
   Harper, Ch.

delivered the opinion of the court.

The questions made in this case relate to two portions or classes of property. The first is that contained in the deed of JohnP. Bond, of the 2d. August, 1823. I do not think it necessary to go into a consideration of the cases cited, with a view to the question, if there be a donation of property to several persons, with a limitation to survivors, in the event of the death of either without issue, if one dies and his portion is distributed among the survivors, and then a second dies, whether the proportion of property of the first, taken by survivorship by the second, goes over to the remaining survivors. It is conceded in argument, that the general rule is otherwise, and that the portion so taken becomes the absolute property of the survivor to whom it so accrues; though it is contended that the circumstances of each particular deed or case may lead to a different conclusion. This has been considered by the Chancellor who delivered the second decree in the original cause. There is no doubt but that if property be given to several persons jointly, by the English law, the property will vest in the surviving joint tenants successively, so that the whole may become vested in the last survivor, independently of any limitations to sm’vivors. If such liihitation be expressly inserted, it can, of course, make no difference.

The only circumstance relied upon in the present instance, is the introductory part of the deed, in which the grantor states himself to have given and granted to his four children therein named twelve negroes. I do not know if this is relied on as forming a qu asi joint tenancy. But he goes on in the body of the instrument to give- specific slaves to each, severally, as much so as if it were by several deeds. I suppose that a partition was hardly necessary to enable each to enjoy his property as in his own right. No doubt a grantor may give severally to several donees, and provide that each of the parcels of property shall go entire to the survivors in succession, so that the whole may vest in the last survivor. But there is no indication of any such intention here.

Then upon the death of Moses, the first of the donees who died, his slaves vested immediately, by virtue of limitation, in the three survivors, Theodore, Felix P. and Lucinda, as held by the Chancellor. There was no necessity of any legal representative of Moses to perfect their title, nor would such representative have had any title to the property or any thing to do with it. The survivors might at once have sued him, or any other person in whose possession the slaves had been found, at law, foy their recovery. There are some cases at law, in which it has been held that each of several tenants in common of a chattel interest, may maintain trover for his own share of the common property. But this I do not think it necessary to investigate.

Then upon the death of Theodore, the property taken by him under the deed, not including that derived from his survivorship of Moses, vested in like manner in Felix P. and Lucinda. And so upon the death .of Felix, the whole of his slaves taken originally under the deed, vested in Lucinda.

I say that the legal title vested in Hucinda, but I am of opinion that the marital rights of her husband attached upon the property so as to vest the legal title in him absolutely. The well known rule of the court is, that the possession of one joint tenant is the possession of the whole, and this constitutes such a reduction into possession, as that the marital rights of the husband of a feme joint tenant will attach, though he has none of the property in his actual possession. Such are the cases of Geiger vs. The Ordinary, 1 N. & McC. and Burgess vs. Heape, 2 Hill Ch. 106. The rule is well known, that if there be a perfect legal title and the present right of possession, this is enough to vest the property in the husband; though there may be no actual, manual possession. And the husband may sue alone for the property, being thus vested with the perfect title. There can be no question, in the present case, with respect to the slaves taken originally by Felix. But there is as little doubt with respect to the other slaves which he held in common. No other person had any right or interest in them.

It is true, Jonathan Hill might have joined his wife in the action; as in the case of a bond or note given to the wife during coverture, when she is the meritorious cause of action, the husband has his election, either to sue alone or to join his wife. If he should so join her, and recover a judgment or decree in their joint names, and the husband should die before satisfaction, leaving the wife surviving, she might be entitled to the whole as survivor; according to the decision in Muse vs. Edgerton, Rice Eq. It is true, that in the present case, the husband has joined his wife; as, for some of the purposes of the suit, it was necessary for him to dobut there is no survivorship, nor can we anticipate one. There has been no judgment or decree; the parties are before the Court, standing severally on their rights, and the Court must proceed, reddendo singula singulis.

It seemed to be urged, that by standing by and seeing the property sold as the estate of Felix P. (and perhaps of Theodore) Jonathan Hill has waived his personal right to it, consenting ' that it should constitute a part of that estate, and claiming only a share of the proceeds as the chose of his wife. It is hardly necessary to remark on this. A man may adopt the act of one undertaking to sell his property as a voluntary agent. He may, at his election, go against the vendor for the purchase money, or against the purchaser for the property. So he may stand by and see his property sold by another as his own, if he prefers the money to the property, and claim the proceeds. Only in this case the purchaser would have an equity to restrain the owner from following the property in his hands. It would be a very strange stretch of inference that Jonathan Hill gave up his title to, or transferred, his property, because he forbore to injure the sale by raising a question of disputed title. It follows that one-third of the slaves originally given to Moses, one-half of those so given to Theodore, and the whole of those given to Felix, or their value or proceeds, are the property of Jonathan Hill, and must be adjudged to him.

We are next to consider the case with respect to the property of which Theodore and Felix P. Bond died intestate — • no matter whether acquired from their right of survivorship or from any other source. To a distributive share of these, Jonathan I-Iill and his wife are entitled in right of the latter. The only question made as to this is, whether the wife is entitled to have a settlement of the whole or any part of this upon herself. The general doctrine is not questioned, that a wife is entitled to have a provision made for her out of her dioses in action, which are sued for in this court, as against her husband or any one claiming under him. Various questions have been heretofore made as to the circumstances, and as to the manner, in which this claim shall be allowed. It was formerly held, that only when the husband was suing in this court for the property of the wife, the court might impound the fund and allow it to accumulate until the husband himself should make proposals for a settlement. Afterwards, the husband was acted upon in invitivm, and a settlement directed; and I take it now to be the settled law, that while the fund remains under the power of the court, the court will, on a proper application in the cause, or when there is an original proceeding by the wife for the purpose, direct such settlement to be made. I had occasion to consider the subject fully in the case of Lindsay vs. Lindsay, decided at Spartanburg, from which decision there was no appeal.

But most of this it is unnecessary to consider for the purposes of the present case. The husband is in court, claiming in right of his wife; and though the claim on her behalf is only set up in the cross bill,vboth bills constitute but one suit.

Then the alleged agreement is relied on, between the administrators and Jonathan Hill, in confidence of which the sureties of Jonathan Hill, parties to the suit, were induced to become sureties. The proof of the express agreement was not very distinct, nor do I think it very material. No doubt the comt would execute such an agreement as between the parties to it. Or without any agreement or understanding, the arrangement contemplated would have been carried into eifect, but for the interposition of the claims of the wife. If the administrators had actually paid over to Jonathan Hill the amount of his wife’s distributive share of the estates of Theodore and Felix Bond, this would have put the fund out of the reach of the court, and the marital rights would have become absolute. ' Or if, as ruled in the case of Gillett vs. Powell, Spears’ Eq. 142, there had been a final settlement of those estates, and the notes given up, this would have amounted to an actual payment to the husband, and the court could not interfere. The case of Heath vs. Heath seems to have been decided on the ground of actual payment to the husband. But it is said the comt regards that as done which is agreed to be done — and so it often does, with respect to those who are parties to the agreement. It is hardly necessary to say that an agreement binds none but those who are parties to it. The wife was not a party to this agreement, and this court regards her as a distinct person, entitled to vindicate her own rights. It is the misfortune of the sureties, if they have incurred a liability on the faith of an agreement, by which the parties entering into it had no right to bind a third person, in relation to the subject matter of it. There is no suggestion or surmise that any act or conduct of the wife induced the confidence by which the sureties were persuaded to incur their liability. In the case of Elibank vs. Montolien, 5 Ves. 737, the bill was by the wife against the administrator and the husband. The administrator claimed inofficially to retain the fund for a debt due him by the husband. This he might have done, if the claim of the wife had not been interposed, against any claim of the husband. It is plain that the consent of the husband to this retainer could have added nothing to the administrator’s right, as the proceedings were adverse, both to him and the administrator. Similar, and perhaps, in some respects, stronger, was the case of Carr vs. Taylor, 10 Ves. 574, where the bill was by the wife against the administrator and .the assignees of a bankrupt husband.

One claim was accidentally overlooked by the Chancellor in framing his decree. This relates to the proceeds of certain real estate (lots in Hamburg) sold, as it is understood, by the •consent of all parties, as the property of Felix P. Bond. Mrs. Lucinda Hill was entitled to a share of this. In the casé of Wardlaw vs. Gray, and in other cases, it has been settled, that while the proceeds of a married woman’s real estate remain in court, they are subject to its disposition, and stand on the footing of her chose in action. The commissioner in making up his report must regard it accordingly, as part of the fund out of which provision is to be made for the wife.

It is therefore ordered and decreed, that the amount found due to Jonathan Hill by survivorship in right of his wife, under the deed of John P. Bond, be credited- on the notes in question, and the enforcement of the executions so far enjoined ; and it is further ordered, that the commissioner inquire and report what provision for Mrs. Lucinda Hill should be made out of her distributive share of the intestate estates of her deceased brothers, Theodore S. Bond and Felix P. Bond. In other respects the decrees are affirmed.

Dunkin, Ch.

I concur in this judgment, as I entertain doubts whether the answers of J. M. Hill and his sureties could properly be regarded as evidence of the agreement, and without which, it was imperfectly established.

Johnson, Ch. absent.

Johnston, Ch.

I concur, fully, in the opinion of my brother, Harper, that the marital right of Jonathan M. Hill did not attach upon his wife’s share of the proceeds of the land, sold by consent; nor upon her share of the intestate estates of Moses, Felix and Theodore: — in which are included the shares of the deeded property which accrued to them by survivorship.

And I concur in the opinion, that the agreement, set up in the answers of Jonathan M. Hill and his sureties, was, in its nature, executory; and could not deprive his wife of her equity, unless it had been carried into execution before the filing of the bill. The court would not allow it to be executed, to her prejudice, afterwards. Besides, I conceive, the answers were not competent evidence of the agreement; and the evidence, aliunde, was not sufficient to establish it.-

The doubt I entertain is, whether the marital right of Jonathan M. Hill attached on the shares of the deeded property which accrued to his wife by survivorship, (at least to the extent to exclude her right to a settlement, according to the practice of this court) — those shares not having been partitioned and set off to her; and the husband having been obliged to establish her right by suit; and having joined her in the bill for that purpose. ’ On this point I am not, however, prepared to dissent.

Decrees modified.  