
    Morgan vs. Elam and others.
    
    Where an estate is vested by deed, cancelling the deed afterwards will not divest it.
    The power of a married woman over her separate estate, does not extend beyond the plain meaning of the deed creating the estate; she is therefore to be considered a feme sole in relation to the estate, only so far as the deed has expressly conferred on her the power of acting as a feme sole.
    
    When a particular mode or manner is pointed out for the disposition of the separate estate of a married woman, she cannot dispose of it in any other way.
    Where a marriage settlement vested personal property or slaves in a trustee, for the sole and separate use of the intended wife, and for the uses and purposes therein mentioned, to wit, “to suffer and permit the said Elizabeth to hold the same as her absolute estate, until the solemnization of the said intended marriage; and from and after the solemnization thereof, then to hold said estate in trust; to suffer and permit the said Samuel and Elizabeth to have and enjoy the use, advantages and profits thereof, for their support and maintenance during their joint lives, using the said stocks and their increase as may be proper and usual with persons owning such property, and so as to keep up a sufficiency for the ordinary purposes of such plantations; and after the death of the said Elam, if he shall die first, then to the sole use of the said Elizabeth as her absolute estate; and after the death of the said Elizabeth, if she shall first die, to such persons as she by writing in the nature of a last will, executed before two witnesses, shall appoint to receive the same; and in default of such appointment, then to the next of kin, or right heirs of her, the said Elizabeth: provided, nevertheless, that it shall be lawful for the said Hamblin, upon the request of the said Elizabeth in writing, to make sale of any part of the said estate, and to invest the proceeds in any other property which may be expedient and proper for the parties, or for the more comfortable support of the said Samuel and Elizabeth, during their joint lives.” Held, that the wife could not dispose of, or give the estate to her husband.
    A marriage settlement not being proved or registered, according to the Virginia act of 1792, ch. 90, sec. 4, Revised Laws, 362, does not render it void as to the creditors of the husband.
    Mrs. Elam, previous to her marriage, with defendant, Samuel Elam, resided in the State of Virginia. The-s^aves controversy were her property; and a marriage being contemplated between her and the defendant, Samuel, a marriage contract or agreement was entered into between them, by which all of her property was conveyed to a trustee for her separate use. The marriage contract is as follows:
    “An indenture made this 22d day of November, in the year of Christ, one thousand eight hundred and twenty, between Samuel Elam of the first part, Elizabeth Stokes of the second part,- and William BroWn Hamblin of the third part. Whereas, a marriage by the permission of God, is intended to be shortly had and solemnized between the said Samuel ■ and Elizabeth; and whereas, the said Elizabeth is in possession of a considerable estate, devised to her under the will of her late husband, Allen Stokes, deceased, which it has been agreed between the said Samuel and Elizabeth, shall be secured and made over unto the said Hamblin, for the sole and separate use of the said Elizabeth, and for the other purposes hereinafter mentioned, declared and specified. Now, therefore, this indenture witpesseth, that the said Elizabeth Stokes, in consideration of the premises, and of the sum of ten dollars, to her by the said Hamblin in hand paid, the receipt whereof is hereby acknowledged, hath granted, bargained and sold, assigned, transferred and made over, and by and with the ’assent of the said Samuel Elam, testified by his becoming a party hereto, she doth by these presents, grant, bargain and sell, assign, transfer and make over unto him the said William B. Hamblin, all the estate, real and personal, which she now hath, or may have, and which was devised and bequeathed to her by the last will of the said Allen Stokes, deceased^ consisting chiefly of a tract of land in the county of Dinwiddie, containing, by estimation, about seven hundred and six acres, more or less; a tract of land in the county of Mecklenburg, containing about twelve hundred and fifty-six acres, more or less; about forty slaves, namely: Will, G-eorge, Phill (A,) Phill (B,) Em-brough, Jim, Pleasant, Julius, Nero, Little Phil, Lewis, Charles, Plutarch, Billy, Claborne, Jerry, Hannah and child, Edy and child, Ellick, Tom, Giles, Myrtilla, Rachel, Sylvia, Lucy, Edward, Phillis and Atkins, together with their increase since they were assigned to the said Elizabeth Stokes, and their future increase; one hundred and three shares of United States government loan stock; all the stock of cattle, horses, mules, hogs and sheep; and all the household, kitchen and other furniture, plantation untensils and implements of every description, with the appurtenances and advantages of every kind to-the said estate, or any part thereof, belonging. To have and to hold the said estate, unto the said William B. Hamblin, his heirs, executors, administrators and assigns: But in trust and upon condition, nevertheless, for the uses and purposes hereafter mentioned, and none other, that is to say, to suffer and permit the said Elizabeth to hold the same as her absolute estate, until the solemnization of the said intended marriage, and from and after the solemnization thereof, then to hold said estate in trust; to suffer and permit the said Samuel and Elizabeth to have and enjoy the use, advantages and profits thereof, for their support and maintenance during their joint lives, using the said stocks and their increase, as may be proper and usual with persons owning such property, and so as to keep up a sufficiency for the ordinary purposes of such plantations; and after the death of the said Elam, if he should die first, then to the sole use of the said Elizabeth, as her absolute estate; and after the death of the said Elizabeth, if she shall first die, to such persons as she, by writing in the nature of a last will, executed before two witnesses, shall appoint to receive the same; and in default of such appointment, then to the next of kin, or right heirs of her, the said Elizabeth: Provided nevertheless, that it shall be lawful for the said Hamblin, upon the request of the said Elizabeth in wri-^n5’ t0 ma^e sa^e °f a,1>' part of the said estate, and to invest the proceeds in any other property which may be expedient and proper for the parties, or for the more comfortable support of the said Samuel and Elizabeth during their joint lives. It witness whereof, the said parties have hereunto set their hands and affixed their seals, the day and year first written.”
    This agreement was not proved or registered, either in Virginia, where it was made, or in Tennessee, where Elam resided.
    After the marriage was had, Mrs Elam, wishing to vest the property in her husband, wrote to the trustee, Ham-blin, to cancel the marriage contract, as she stated in her letter she was determined “to blend her fate with that of her husband.”' The trustee cancelled the contract by cutting out his name as trustee.
    Elam being indebted to Morgan, the latter attached the slaves mentioned in the marriage contract, as the property of Elam; who,- to secure Morgan, and to have the attachments discharged, mortgaged them to Morgan to secure his debt; and this bilí was filed to subject them to the payment of said debt.
    Mrs Elam, by her answer, resists the complainant’s claim, upon the ground that the negroes are her separate property by virtue of said marriage contract; that her directions to have it cancelled, and the attempt to vest the property in her husband, was net authorized by the contract, and did not operate a divestiture of her interest, &c.
    
      G. S. Yerger, for complainants.
    The marriage contract in this case is void as to creditors and purchasers, unless proved and registered within the time prescribed by the Virginia act of 1792, Revised Code, page 362. The act says, “all deeds of settlement upon marriage, wherein either lands, slaves, money or other personal thing shall be settled or covenanted to be left or paid at the death of the party or- otherwise, and all deeds of trust or mortgages, whatsoever, which shall be executed, shall be void as to all creditors and subsequent purchasers, for valuable considerations without notice, unless they shall be acknowledged or proved, and lodged with the clerk to be recorded, according to the directions of this act, &e. &c.”
    The creditors and purchasers contemplated by this act, and which the act from the generality of its expressions embraces, are of two descriptions. First, where the ■wife conveys her own property to trustees, intrust for her separate use after marriage. Second, where property is conveyed in consideration of the marriage by a third person or stranger, in trust for the wife. In the first case, the act means (or it means nothing) that the conveyance shall be void as to the creditors of, and purchasers from the husband, and not creditors of, or purchasers from the wife. The latter construction will defeat the whole object and intention of the legislature in passing the act; and in fact, it makes the legislature speak a language so absurd and inconsistent, that it cannot possibly be sustained.
    By the rules of the common law, the husband upon the marriage, becomes the absolute owner of the wife’s personal property in possession. This transfer of her property by the marriage may be provided against by contract. The Virginia act, and all similar acts, are passed to notify all persons, that the property did not vest in the husband by the marriage,' but was reserved to the separate use of the wife. Hence, it becomes necessary to comply strictly with the provisions of this act, by having the deed proved and registered in order to prevent third persons from being imposed upon; and as the words in the Virginia act are sufficiently broad and comprehensive to embrace creditors of the husband, it would- be a violation of settled rules for the construction of statutes to exclude them.
    What will be the effect of confining the words £Ccreditors and purchasers, to mean creditors of, and purcha- . r, ’ r sers irom the wife?
    When the legislature declare a deed or other instrument void as to a certain class or description of persons, it will hardly be contended that it does not mean to confer a benefit or right upon that class. Thus, when property is conveyed to defraud creditors or purchasers, the effect of the deed being declared void, is to vest the property in the purchaser at the creditor’s sale, or in the purchaser direct from the party. But the construction contended for will have a wholly different effect. Take first, for instance, the case of a purchaser: <£the conveyance shall be void as to creditors of, or purchasers from the wife, if not registered.” It is clear the wife has no power to convey, unless the selling of the property to her separate use, gives her the power. She has no power by the common law, because the property is her husband’s by virtue of the marriage. The trustee has no right to sell the property except he is authorized by the settlement to do so. Suppose, then, the deed of marriage settlement, which gives to the wife the power of selling and disposing of her property, is not registered, and she sells it: by the construction contended for, will any interest vest in the purchaser? The argument is, that the deed is declared void as to him for want of registration; if it is void as to him for want of registration, by what right can he hold the property? If the deed or instrument through which he claims is void as to him, can he hold any interest under it? Surely not. A purchaser from the wife does not want or wish the deed to be declared void for want of registration, for upon the validity of the deed depends his right or title. It is his interest to set up the deed, otherwise the sale to him is invalid and passes no right. But a purchaser from the husband stands in a wholly different situation. If the deed is pot registered, and void as to him, then the property is vested in him, It is the interest of the purchaser from the wife to have the deed registered; but it is the interest of the purchaser from the husband that it should not be registered, because by de-daring the deed void, it vests the property in him; but by declaring the deed void, as to the purchaser from the wife, he takes no interest at all. Is it not strange that the purchaser, whom the legislature was solicitous to protect, should by this construction be actually deprived of all right; yet such are the absurd consequences which result from this construction. But where a stranger convey, the act clearly means purchasers from the grantor.
    Next as to “creditors.” Could the Legislature have meant or intended the word “creditors” to be confined exclusively to creditors of the wife? Will not this construction involve the same inconsistencies as confining the word “purchaser” to persons who purchased from her? 1st. Does it mean creditors of the wife before marriage? It certainly does not, for as to these creditors, whether it is registered or not, they are protected without the interference of the act. As to them, whether the settlement is void or not, they are perfectly safe. Suppose the settlement is valid; whether it is registered or not, is not the property subject to their demands in equity? Will a woman who is largely indebted, be permitted to settle her property for her own use and benefit, and by this means defeat her creditors of their just rights? Her husband it is true, is liable during the coverture as husband; but if he is unable to pay, or insolvent, will the settlement prevent her creditors from resorting to the property for the satisfaction of her demands? Undoubtedly it will not. Equity will subject the property in the hands of the trustee to the payment of these debts. Then as to these creditors, there was no use for the provision, for if the deed is good, their claims will be satisfied; if it is void, the consequence is that the property vests in the husband, and they can sue him, and thus have satisfaction. In either event they are safe: at law the debt becomes the husband’s, not as debtor, but as husband: in equb ty, her separate estate is liable, because notwithstanding the marriage, it is still her debt. 2 Kent’s Com. 123. On the other hand, if the separate estate cannot be made liable for her previous debts, because the debt by the marriage became the husband’s, then the act cannot apply to her creditors before marriage, because, whether registered or not, they are no longer “her creditors,” but creditors of the husband; and as to these, it is said the deed is good whether registered or not. The consequence then is, that as to the creditors of the wife before marriage,- if they by the marriage, do not become creditors of the husband, there was no necessity to declare it void as to them, because they could subject it in, equity; but if they do become creditors of the husband by the marriage, then they lose their debts entirely, for it is only void as to her creditors and not the creditors of the husband. In either point of view, the construction contended for is irreconcileable with legal principles or sound legislative views.
    But it may be said it means her creditors after marriage. By the common law she can have no creditors after marriage. But in equity, where she has a separate estate, she may charge it specially. 2 Ro.per, 241. Admitting the law to be that her general creditors may resort to her separate estate for the satisfaction of her debts, it only proves that without a separate estate the married woman can have no creditors. Then for the Legislature to say, that the very instrument which enables her after marriage to have creditors, shall be void as to those creditors if it is not registered, is inconsistent and absurd. If the instrument is void, she has no separate estate; if she has no separate estate, she can have no-creditors. But if she could have 'creditors, it is their interest that the deed should be valid; for if if is declared void, the property vests in the husband, and they cannot recover from him unless the wife contracted the debt by and with his assent. It follows then, that the true construction of this act is, that if the deed is not proved and registered within the time specified in the act, it is void as to the creditors of the husband. This is the construction put upon the act in Virginia, (2 Call’s Rep. 198,) and so in North and South Carolina, upon a statute similarly worded. 2 Law Repository, 456: 2 Dess. Ch. Rep. 401: 4 Dess. Ch. Rep. 238.
    if a deed is made void by statute for want of registration, a court of equity cannot set it up. Equity cannot supply a defect or circumstance required by a statute. Hubberts vs. Roulston, 3 Bro. Ch. Rep. 571: 2 Vesey, 128: 4 Wheaton’s Rep. 466.
    But it is contended, that the case of Turner vs. Pierce (5 Cranch’s Rep. 154) conclusively settles this point. I admit tliat case decides the point against me; but however respectable the decision may be, emanating from so high a source, I deny its conclusive authority upon this court. The case is undoubtedly entitled to great weight; but if after mature deliberation, this court cannot come to the same conclusion, it is its duty to declare the law otherwise.
    The general rule laid down in that case is, that where a statute declares a deed void as to creditors or purchasers, it means creditors and purchasers of the grantor. But it is submitted, that in the case of marriage contracts, from the intention with which they are made, and the effect they have upon the- property, in preventing its transfer by the marriage, and from the legal effect of the marriage as to the rights of the parties and of third persons, they must, where the property is transferred by the wife, necessarily operate as an exception to the rule. Upon principle, then, that case cannot be supported, and with due deference to the very learned tribunal who pronounced that opinion, I think its reasoning is very inconclusive and unsatisfactory. The court admits that the words are broad enough to comprehend the creditors of the husband, but a majority believed it ought to be confined to the creditors and purchasers of the grantor, which, in that case, was the wife. The court says, “In no case but , . , , r , one, where a title can be set up lor the grantee, paramount to the deed, can it ever be the interest of a creditor of the grantee to insist upon such a construction as is contended for in this case; for as he must derive his title under the deed, if it be void as to him, it is impossible for him to found a claim upon it in right of the grantee whose only title is under the deed. It would be strange that a deed should be binding upon the grantee, and yet void as to persons claiming under him; and yet such would be the consequence, if the words “creditors and purchasers” should be understood to apply to persons claiming under the grantee, as well as those claiming under the grantor. Indeed, it would seem repugnant and absurd to apply the same expressions to persons, who, if they claim at all, must claim under the deed, and also to those who claim against the deed.”
    The fallacy of this argument is apparent; its sound-' ness depends entirely upon this, whether the husband is a grantee; for although he is a party to the deed, yet unless he is a grantee, the argument fails. Now, if he were the grantee, there would be no use for the argument; then the property would be his, and subject to his creditors. But creditors do not claim under the deed; they do not say that any right is vested in him by the deed, but they say he has not relinquished bis marital rights; or if he has, the relinquishment is void, and the property vested in him by the marriage. The intended effect of a marriage contract is, to prevent the property from vesting in the husband; and yet, by the above argument, the supreme court places the creditors of the husband in the ridiculous attitude of contending that the property could only vest in him by the deedjand yet wishing to have that deed declared void. The fact is, the husband is in substance a grantor, or releasor, as well as the wife. By the law upon the marriage, the property would be vested in him; this is his right; by joining in the deed, he releases or gives up the right, and thereby prevents the legal estate from vesting. He is in no sense, a grantee. How can it be contended, that a relinquishment of a right which actually prevents the property from vesting in the husband, makes him a grantee of the property? But the court, aware of the dilemma in which they were placed, attempt to get round it, by putting this question: “ But if in every other case which can be stated, the invalidity of the deed is applicable to the creditors of the grantor, and to none other, by what rule of construction can the same words have a more extended meaning, so as to be applied to persons who claim in right of a party to a deed other than the grantor?” In the first place, the rule is not so “ in every other case which can be stated. ” Suppose the legislature declare that conveyances of all equitable interests, to defraud creditors, or subsequent purchasers without notice, shall be void; and suppose A has an equitable interest in land, the outstanding legal title in B, and for the purpose of defrauding his creditors, he directs B to convey to C. In this case, according to the construction contended for by the Supreme Court of the United States, the conveyance is only void as to the creditors of B, because he is the grantor. Could such a construction be contended for and be sustained in law? And yet here would be a case, where the creditors of a party to a deed, who was not the grantor, could have the deed declared void. In fact, it would be void if he were not a party, as to his creditors. Be* cause a deed cannot be void as to the creditors of a grantee, (which is admitted,) does it therefore follow that it cannot be void except as to the creditors of the grantor? When the intended husband joins the intended wife in conveying property then vested in her, to trustees, is he not a grantor with her? does he not grant, assign and relinquish a possibility or contingency?
    Again: the court say, “If the deed in question had granted to Charles Turner an estate in fee as to the land, and for life m respect to the slaves, would it have been void as to simple contract creditors, who could go only against the personal estate, and good as to specialty creditors, who could only subject the real estate? And yet if the deed he void at all, as to creditors, it must be so throughout. ” This, it is conceived, is clearly not the law. If a particular class of creditors have no right to resort to the fund, they are not embraced by die act. How can a conveyance of property, which is not liable for the payment of their debts in the hands of the grantor, be void as to them, however fraudulent the intent may he? To illustrate the case, suppose A indebted by simple contract, and by specialty conveys his lands and personal estate to defeat his creditors; the deed is void in toto as to the specialty creditors. But if they are after-wards paid, can the simple contract creditors set the whole deed aside? Surely not; because, as they have the right only to reach the personalty, the deed is only void as to that, so far as they are concerned.
    The court again say, a The title of her husband’s creditors being clearly derivative, if he had no title under the deed, (and being himself bound by it he could have none inconsistent with it,) then his creditors could have none.” This argument, if true, operates as a complete repeal or prostration of the statutes declaring void conveyances for fraud. In all conveyances to defraud creditors, the grantor and his heirs are bound; and if, because he was bound, and could claim no title inconsistent with his grant, his creditors, whose titles would be derivative, could claim none either, then indeed would all conveyances to defraud, be binding on creditors and all. But the creditors in neither case claim under the deed; they claim under him, it is true, but they claim by title independent of the deed. In the case of a marriage contract, the creditors claim by virtue of the marriage, which vests the property in him as to them, unless the deed by which his right through the marriage is relinquished, has been registered. Declare this deed void as to them, and the effect is to vest the title in him, not by the deed, but by the marriage.
    Again: the court says, “But if he (the husband) had a title incompatible with that granted by the deed, then he was not bound bjr the deed, contrary to the statute which declares that he was bound.”
    This is a mere play upon words. So far as regards the husband, he could have no title inconsistent with the deed, and he is bound by it. But does it follow because he was bound, that his creditors are also bound? The very argument I rely on is, that the legislature meant his creditors. Now take it for granted that his creditors were meant, is there any reason in the argument? If the legislature has declared it (the deed) void as to his creditors, although it is binding on him, what is the effect? Why, surely, as to them, his title is as if there never had been a deed; and so far as they are concerned, the property vests precisely as if no deed of settlement ever had been made. “If his creditors have any such title,” says the court, “it cannot be derived from him, when in point of law he had none himself; and independent of his title, it is impossible to show any in them.” The very same argument may be used, and with just as much force, when a conveyance is made to defraud creditors. The conveyance being binding on him, he has no title; and independent of his title, it is impossible to show any in the creditors; and therefore, he having no title, his creditors can have none. The answer is, that in the one case, without the conveyance, he has title by the marriage; in the other, he had title before he made .the fraudulent conveyance. Declare the conveyance in both cases void, and the creditors hold by the title which he derived by the marriage, in the one case, and by the title which he had previous to the conveyance, in the other.
    
      Assume the position that the legislature meant creditors of the husband, (which I have clearly shown they did.,) and all the far-fetched, fine-spun reasoning of the court in the case of Turner v Pierce, falls to the ground. In fact, the reasoning has no tendency whatever to prove that such was not the meaning of the legislature. The .opinion of Judge Johnston, in that case, conclusively proves to my mind, that such is the meaning of the statute.i '
    But, it is said, that the negroes being mortgaged to Morgan, he is a purchaser, and having notice of the unregistered marriage contract, is bound by it. Morgan was a creditor of Elam; as to him the contract is void whether he has notice or not. 3 Con. Rep. 406: 4 Bibb’s Rep/,78: Washington vs. the Bank, M. & Yerg. Rep. The act makes it void as to creditors, with or without notice; but as to purchasers, if they have notice they are bound. If Morgan was a creditor, and it was void as to bim, taking a mortgage to secure his debt could not make it good. The mortgage was a mere security for his debt; his taking the mortgage did not make him a purchaser. 2 Cruise’s Digest, 90, 41: 7 John. Ch. Rep. 40: 1 John. Rep. 580: 15 John. Rep. 205, 319: 5 Bacon, Mortgage C.: 2 Fonblanque’s Equity, 237, notes.
    But, suppose the instrument is good without registration. The property is vested in a trustee, for her sole and separate use; and according to the modern authorities, as to this estate, she is to be considered in equity as a feme sole, and may sell or give away the property in any manner she pleases, though a particular mode of disposition is pointed out, unless she, by éxpress words, is confined to that method of disposing of it. The rule now is, that if the deed points out a particular way by which she may dispose of her interest, and does not restrain her from any other, she may dispose of it in the way pointed out, or in any other way she may think proper, either to her husband or any person else, provided there is no fraud in the transaction. 2 Roper on Property, 236: Methodist Episcopal Church vs. Jacques, 17 John. Rep.: Clancy on the rights of Women, 314, 317, 331, 347: 1 Vesey, sr. 518:2 Vesey, sr. 663: 3 Bro. Rep. 340: 13 Vesey, 192: 2Jac. and Walker, 457: 9 Vesey, 369: 11 Vesey, 222: 1 Peters’ Circuit Court Reports, 116: 1 Ser. and Rawl, 276: Sugden on Powers, 120, 2 Roper, 209, 226, 227.
    In such case, if she has an interest for life or for years, with a contingent limitation of the fee, her life interest will pass, and probably her contingent interest in the fee. 1 Young and Jervis, 329: Roper on Property, 238, 187, 189, 206-7-8-9: 1 Maddox, 474: 13 Ves. 190: 9 Ves.’ 520.
    But if there were any fraud or undue and improper influence used by the husband, the assignment of her interest to him would be declared void in equity. But in such case, she must affirmatively prove the fraud or imposition. 2 Roper, 261, 222: 14 Ves. 542.
    The question then is, did she give the slaves to her husband? This is beyond doubt. She writes to the trustee that she had concluded to “blend her fate with her husband’s,” and directs him to cancel the marriage contract; he accordingly cut out his name. This cancellation of the deed by her orders, together with her letter, is strong evidence to show, independent of the effect of the cancellation, that she had parted with her property to her husband. It proves a gift of the property to him, which, the negroes being in his possession, is valid by our law without writing.
    But it is said that the cancellation of the deed does not divest her right; that an interest once vested by deed, cannot revest by destroying or cancelling the deed; and for this is cited 4 Cruise’s Digest, 497, sec. 15, 16, 17: Clancy vs. Clancy, 2 Vernon, 473: Ambler’s Reports, 249:1 John. Ch. Rep. 257: 6 Mass. Rep. 24: 11 Mass. _ _ , j- r Rep. 332: 9 Mass. Rep. 311, 312.
    This is a strange argument to me, so far as the princi-pie is attempted to be applied to personal property. My position is, that a deed or bill of sale transferring personal property from A to B, may, by agreement of the parties, be cancelled, and the property is revested in A. I have examined all the cases cited; they were all cases where real property, requiring a writing either with or without seal to pass the interest, or the cancelling was done by a stranger, or by one party without the consent of another.
    It is admitted, that if the property conveyed requires a deed or writing to pass the interest, the cancelling of an instrument by which the property vested, will not re-vest it, for the plain and simple reason, that the property having once vested, requires a deed or writing to revest it. Thus, land requires a deed; after the execution of a deed, a cancellation by consent will not re-convey the interest: if it would, real property could be transferred without a deed and without writing.
    But can any case be found in which the court has decided that a cancellation by consent of the parties for the purpose of revesting property, which property did not require a writing to pass the interest, was insufficient to pass the interest? It is believed no such case exists? Slaves may be transferred by our laws by parol. If a parol gift or sale with delivery will pass the slave to the original owner without cancelling the deed or bill of sale which he made, is it not perfect nonsense to contend that such gift or sale is invalid, when the original bill of sale is can-celled? Before the statute of 29 Charles II, a leqse could be cancelled, and the interest would revest; but since the statute requiring leases to be surrendered in writing, the mere cancellation is not sufficient. 6 East’s Rep. 90. The reason is obvious; before the statute no writing was required; after the statute it was required. So Sueden, m his essay upon Powers, 400, says, that can celling an instrument by which property has passed, will revest the property, if it is not required by law to be re-vested by writing.
    
      A. M. Clayton, for defendants.
    In this case the first question for decision is, whether the marriage settlement is void as to the creditors of Samuel Elam, the husband, for want of registration. It will be borne in mind, that the settlement was made in Virginia; the effect of the failure to register will therefore be determined by the laws of that state. Whatever doubts once existed as to the construction of the statute requiring the registration of marriage settlements, it is now conclusively settled that the want of registration does not make the deed void except as to creditors of the grantor. Pierce vs. Turner, 5 Cranch: Laud vs. Jeffreys, 5 Randolph. This construction placed upon the statute of Virginia by the supreme court of that State, will be adopted by every other tribunal in which its construction comes in question; and this is done upon a principle of comity from which no departure is admitted. Elmendorf vs. Taylor, 10 Wheaton: Jackson vs. Chew, 12 Wheaton.
    If it be established that the deed of settlement is good, although it was never registered, we are next led to en-quire how far the contract is affected by the surrender of the deed by the trustee of the parties, and by the erasure of his name. The cáse of Tabb and others vs. Archer, (3 H. and M.) is substantially like the present in that particular, and the deed was established. It is there held, that marriage articles cannot be rescinded after marriage, even by consent of both husband and wife, or by any conveyance which they can make. After an estate is vested, it is not divested by the cancelling of the deed which secures it. Lady Hudson’s case, Pr. in Ch. 1 Bro. P. C. 122: Bolton vs. Bishop of Carlisle, 2 Hen, Blk- This is conceived to be the general rule, and if adopted in this case the estate is still clothed with the ori- . , gmal trust, isut.ii this court should incline to a different opinion in cases where all the parties are sui juris, and have right to act for themselves, the question remains, whether Mrs. Elam, whilst covert, could strip herself of a provision made for her whilst sole. In no case has it ever been holden that the wife could by her consent put an end to, and destroy the agreement; on the contrary, the courts have refused her permission to part with her property when she desired to do so. Richards vs. Chambers, 10 Ves: Anderson vs. Dawson, 15 Yes: Lee vs. Muggeridge, 1 Ves. andBea: Ritchie vs. Broad-bent, 2 Jac. and Walk. It is true that some of these cases were decided upon special grounds, which were held to exempt them from the operation of the general rule. The same special grounds, however, exist in the present cause. By the-terms of the contract, a contingent interest is secured to Mrs. Elam in the event of her surviving her husband. This contingent interest she cannot be divested of, either by her own act or that of others. Richards vs. Chambers, Lee vs. Muggeridge, ut supra. Again, the contract contains a limitation in default of appointment to her next of kin; and this it has been held, ties up and prevents any alienation of the property to their prejudice. Anderson vs. Dawson, ut supra. The next of kin excludes the husband, lb. On these two grounds, if there were'no others, I conceive it should be holden, that the -surrender of the deed is void, and that it should be set up in equity in favor of the complainant.
    But should these circumstances, in the opinion of the court, not be sufficient to take the case out of the general rule, in regard to the separate property of married women, it remains to enquire what that general rule is, and what power a married woman has over her separate property. The delivery of the deed to Elam will be regarded asno more than a conveyance of the property to him, for that is its simple effect. How far then had Mrs. Elam power to direct a conveyance of this property to her husband? The instrument of settlement certainly confers no power on her to make such conveyance, and the plain question is, does such power result necessarily from the possession of separate property? Two opposite rules on this subject have been laid down, which have produced great confusion and distraction in the cases.- According to one, the feme covert can exercise only the powers conferred upon her by the instrument under which she claims; according to the other, she is, as to her separate property, regarded as a feme sole, and capable as such of disposing of it at pleasure, except so far as she may be restrained by the instrument under which she claims. The former rule is founded on this simple principle; by the common law a married woman has no property or powers, but equity permits her to be exempt from this rule so far as she stipulates for exemption. So far as she takes herself, or her friends take her out of that rale, she is exempt from it, and no farther. The advocates of the latter rule find it difficult to discover any principle on which to base it. From some of the cases it would seem to have been adopted because restraints on alienation are never to be presumed; thé jus disponendi is not to be taken away unless by express words, and therefore this extended power is given to married women. Every marriage settlement is made, and must be made, to prevent alienation, and to abridge the husband’s rights; they create no mere presumption of restraint, but it is absolutely certain that restraint was intended. The jus disponendi is taken away by the marriage itself, and it requires stipulation for a feme covert to possess it at all. Subject to the rules by which the boundaries of limitations and accumulations of personal property are fixed, a settlement may be made according to the pleasure of the parties. 1 Mad. Ch. 365. When the parties have expressed their intention, and shown how far the feme is to be exempt from the operation of the common law, it is a direct violation of to say. she shall have all the powers of a feme sole not expressly taken from her. No leaning should be had against restraints on alienation, when they fall within the prescribed limits. They are generally introduced for the most beneficial purposes, the preservation of families. Property is a mere incident to persons; it cannot pass without the consent of some one of sufficient competency. An infant or an idiot has no power to alien, and their property is of course tied up. A married woman by the common law has no power to alien; yet that law permits certain powers to be conferred upon her, and if none be conferred she certainly has none. It is contrary to reason and to all the analogies of the law, to say that the reservation of one power, the power to enjoy separate property, is the reservation of all, and makes her a feme sole, when no such consequence was intended. Lord Thurlow in Pybus vs. Smith, (3 Bro.) laid it down, that if it was the intention of a parent to give a provision to a child in such way that she could not alienate, he might do so. In Socket vs. Wray, (4 Bro.) it is said, if a parent may do it, any other person may. The settling of property to the separate use of a woman, always intends a personal provision of which she cannot be divested; it is a direct thwarting of the intention to say that she may be stripped of it, unless her power in that respect is restrained,
    As another reason for this rule, it was said by Lord Macclesfield in Powell vs. Hankey, (2 P. Wms.,) that every intendment is to be made against a married woman with separate property, because it is against common right that she should have any such. How little this doctrine deserves to be followed, has been shown by our own supreme court in the case of Crenshaw vs. Anthony. 1 Mar. and Yer. 109. Judge Crabb there says, and the opinion of the court concurred with his, “that where a •deed has been bona fide made, conveying property for the separate use of a married woman, the law looks upon it .with as much complacency, and feels as much solicitude to render it effectual, as it does to support and protect the rights of creditors.” The reason of Lord Macclesfield then as a ground of this rule, cannot have any weight in our courts.
    The majority of the modern English cases and the elementary writers adopt this latter rule as the established law, because they say it is settled by too many precedents to be now disturbed. At the very time when the judges yield obedience to what they suppose to be decided by the previous cases, they express their conviction that it is wrong upon principle. Lord Thurlow said, “that upon true principle, if the contract makes her a feme sole, her faculties as such, the nature and extent of them, are to be collected from the terms of the instrument making her such.” Yet he reluctantly yielded to misconceived precedent. To avoid the rule by which he had expressed his disapprobation, Lord Thurlow, in Miss Watson’s case, in which he was himself trustee, inserted the clause against anticipation as it is called; the effect of which is to place the estate beyond the control of the wife. It may not be without interest or instruction to trace the progress of Lord Eldon’s opinion on this subject. In 1798, whilst he was Attorney General, and counsel for the defendants, in Whistler against Newman, although it was his'duty to resist the bill which .prayed for refunding stock by the trustees, sold by them at the request of the wife, yet he said, “if there had never been a decision on this subject, the last thing to be expected would be, that such decisions as have taken place would be made; but it would be very dangerous to property now to go back to the proper principle. A. feme covert having separate estate, should be treated as a feme sole to the extent in which the terms of the instrument make her a feme sole, and no farther: but the principle cannot now be reconciled with former decisions.” 4 Ves. 140. In 1800, whilst Chief Justice of the Common Pleas, he delivered the opinion of the court of exchequer chamber, in Beard vs. Webb, (2 Bos. and Pul.) in which, at law, the idea that a feme covert was sole as to separate property, was got rid of. In 1803, when Lord Chancellor, in the case of Sperling vs. Rochfort, (8 Yes.) he says that upon all the cases together, as to the separate estate of the wife, it is impossible to know the result. In 1804, in Jones vs. Harris, (9 Yes.) he says, “the proposition that a married woman with separate property is to all intents a feme sole, when she does not execute the charge es modo, which is prescribed by the instrument, may, to say no more, deserve a very full review whenever the point shall come distinctly before the court.” In 1805, the case of Parkes vs. White, occurred; he then says, “his mind is in great distraction on the subject. Upon principle, a woman contracting marriage loses all the powers she had as a feme sole, and yet this court allows her to place herself by contract in the situation of a. feme sole.” “If the contract makes her a. feme sole, her faculties as such, the nature and extent of them are to be collected from the terms of the instrument making her such.” He concluded by saying he was not bold enough to refuse to follow the precedents. In Jackson vs. Hobhouse, in 1S17, he gave effect to the clause against anticipation. 2 Merivale, 486.
    The introduction of the clause against alienation is thus held to tie up the supposed power of the feme covert, and to prevent any disposition by her of her property. This is now conclusively settled. Jackson vs. Hobhouse ut supra: Ritchie vs. Broadbent, 2 Jac. and Walk, The courts have, in this manner, travelled a weary round to arrive at a point from which they should never have departed, and from which they would never have deviated except by mistake. It is confidently believed that the early precedents are in entire accordance with what Lords Thurlow and Eldon declare to be the true principle, and that the whole difficulty grew out of the misapprehension of Lord- Thurlow, who was the first that laid down the rule that a feme covert is sole as to her separate property, when the power to dispose is not expressly given by the instrument under which she claims. In the early cases the power to dispose of separate property by the feme was expressly given. In the cases before Lord Hard-wicke, the question was not whether the wife was to be regarded as a feme sole, and could dispose of her property without a power given to her for the purpose; but whether, where the power was’expressly given, she could exercise it, notwithstanding the disability of coverture. It had been doubted in the very earliest cases, whether a feme covert could exercise a power expressly given; (1 Chan. Cas. 18, Blithe’s case: 2 Free. 91, Godolphin vs. Godolphin: 1 Ves. 21: Sug. Powers, 155:) and Lord Hardwicke meant to do no more than to remove that doubt and to establish the principle that where a power was given, she might exercise it as if sole. The want of attention to this simple principle has produced all the confusion and perplexity which distract the subsequent cases. When Lord Thurlow, and after him Lord Eldon, lay down their principle correctly, that a married woman has no power but that which the settlement gives her, but decide against it reluctantly upon precedent, I must be permitted to say with becoming deference, that they mistook the precedents; for Lord Hardwicke’s decisions are in entire conformity with what they allege to be the true principle. Lord Thurlow, in Pybus vs. Smith, says, “these cases have not been sufficiently attended to;” it seems to me if they had been, the difficulty and confusion would never have been introduced. When Lord Hardwicke, inGrigby vs. Cox, (1 Ves.) says, “the rule of the court is, that where any thing is settled to the wife’s separate use, she is considered as a feme sole,” every rule of construction confines his remark to the subject matter before him; and in that case the estate was settled to be conveyed as “she should direct and appoint, whether sole or covert,” Nothing but inattention could have .converted *nt0 a general proposition, which was meant only to apply to the case before the court, and those under similar circumstances. In Fettiplace vs. Gorges, (1 Veseyjr. and 3 Bro.) in which no power of disposition had been given, Lord Thurlow takes it for granted that Lord Hard-wicke had decided that a power of disposition was incident to separate property, without adverting to the fact that in every reported case before Lord Hardwicke, any trace of which I have been able to see, the power to dispose had been expressly given. In other cases he argued and reasoned to.prove that Lord Hardwicke’s decisions, that a feme covert as to separate property was sole, were wrong; and that upon principle, she was sole only to the extent that the settlement made her so: and yet Lord Hardwicke’s decisions, when properly understood, establish the very doctrine which he contends is the correct and true one. When Lord Eldon came to decide upon them, he repeats Lord Thurlow’s reasoning, says his principle is undoubtedly correct, yet decides as Lord Thur-low did, in obedience to misconceived precedents. If this exposition of Lord Hardwicke’s decisions be correct, the law is vindicated in this particular from the charge of inconsistency, and its parts are reduced to system and to harmony. His principle becomes the same with that of Lord Thurlow and Lord' Eldon, that a feme covert is sole only to the extent that the instrument makes her such.
    All the precedents which do not agree with this principle, are to be attributed to the early misapprehension of Lord Thurlow; they are founded upon his precedent, and so far as they deviate from his own acknowledged principle, are to be rejected. An error a thousand times committed, can gain no strength by repetition. From this it appears,.that the principle established by Lord Hardwicke, was not that a married woman could alienate her separate estate by virtue of a power inherent in and incidental to such property, but that she could alienate by virtue of a power expressly given: that where a general power of disposition was given, the manner of its exercise was not material; she might adopt any mode at pleasure, however informal; it-being a rule in equity to aid the defective execution of powers. But where a particular power only is given, as a power to appoint by will, then, upon the same principle that she has no power beyond what is given, that specified mode must be pursued. A confirmation of this view of the cases is derived from xhe circumstance, that in the older marriage settlements the intended husband usually covenanted to give effect to the wife’s appointment; a covenant perfectly idle and nugatory, if the bare settlement made her a feme sole. Harrison vs. Constantine, 2 Eq. Cas. Ab.: Blysse vs. Sager,Finch, 108: Wright vs. Cado-gan, 6 Bro. Par. Cases: Rippon vs. Dowding, Amb. R.
    The distinction which I have taken between cases in which a power was expressly given, and those in which none was given, seems to have existed very clearly in the mind of Mr. Yiner, who, in his Abridgment, divides the cases under those two heads. Vin. Ab. vol. 4, Tit. Baron and Feme, E. a. 7, page 130.
    An examination of the cases will still farther confirm the doctrine. The most important here follow, reduced to separate heads or classes.
    1. Cases in which a general power was expressly given. Blysse vs. Sager, Finch, 108: Norton vs. Turvil, 2 P. Wms.: Standford vs. Marshall, 2 Atk: Gore vs. Knight, 2 Vern.: Allen vs. Papworth, 1 Ves. sr.: and Bett’s sup.: Hearle vs. Greenbank, 1 Yes. sr.: Grigby vs. Cox, 1 Yes. sr.: Peacock vs. Monk, 2 Ves. sr.: Pawlet vs. Delaval, 2 Ves. sr.: Hulme vs. Tenant, 1 Bro.: Clark vs. Pistor, 3 Bro.: Ellis vs. Atkinson, 3 Bro.: Pybus vs. Smith, 1 Ves. and 3 Bro.: Milnes vs. Busk, 2 Ves. jr.: Mores vs. Huish, 5 Ves.: Chusslyn vs. Smith, 8. Ves.: Rich vs. Cochell, 9 Ves.: Witts vs. Dawkins, 12 Ves.: Brillpin vs. Clark, 17 Ves. ; Lee vs. Muggeridge, 1 Ves. and Bea. Note — In the printed Reports of Norton vs. Turvil, and Peacock vs. Monk, it is not stated that the power was given. But in 1 Ves. jr. 47: and in Heatley vs. Thomas, (15 Ves.) it is said the power was given; and ithere are expressions in the cases which show it was so.
    In'this first class of twenty cases, in which the power was given, the courts in most of them, in conformity with my view of the principle, upheld the disposition, although the acts of appointment might be irregular. Pier' bond for money — her consent in court to dispose — were held to be acts sufficiently indicative of her intention, and her intention to dispose was all that was deemed requisite. In Lee vs. Muggeridge, (1 Ves. and Bea.) it was held that u a contingent interest to take effect in case she survived her husband, over which she reserved no power, could not be disposed of by the wife,” In Mores vs. Huish, under the circumstances, although the wife had power, the bill 'was dismissed.
    Class second. Cases in which a particular power to' dispose by will only was given. Newman vs. Cartony, 3 Bro: Socket vs. Wray, 4 Bro.: Whistler vs. Newman, 4 Ves.: Francis vs. Wigzell, 1 Mad. R.: Parker vs. White, 11 Ves.: Heatley vs. Thomas, 15 Ves.
    In Newman vs. Cartony, upon her consent in court,, she was allowed to alien. In Socket vs. Wray, Whistler vs. Newman, and Francis vs. Wigzell, it was held she must pursue the specified mode. In the two last cases of the class she was regarded as a feme sole.
    
    Class third. Cases in which no power was given. Fettiplace vs. Gorges, 3 Bro.: 1 Ves. jr.: Wagstaff vs. Smith, 9 Ves.: Brown vs. Like, 14 Ves.: Essex vs. Atkins, 14 Ves.: Blackwood vs. Norris, Cas. tem. Talbot:-Caverley vs. Dudley, 3 Atkinson: Hovey vs. Blakeman, 9 Ves.
    Fettiplace vs. Gorges was the case' in which Lord Thurlow first overlooked Lord Hardwicke’s principle. Wagstaff vs. Smith, Essex vs. Atkins, and Brown vs. Like, were decided on the ground that she was a feme sole. In the the three last cases, the wife was not permitted to alien, because no power to that effect had been given.
    The view here taken of the subject is the only mode by which to place the cases on a solid basis, and to show that “ this mighty maze is not without a plan.” If the court, however, should not agree with me as to the construction of the precedents, I shall still trust that they will adopt the rule which the ablest English chancellors have declared to be the true one upon principle, that a feme covert has only the powers which are conferred upon her by the instrument under which she claims, and not yield obedience to precedents confessed tó be erroneous and pushed too far. Precedents, says Lord Mansfield, serve to illustrate principles, but the law depends upon principles; decisions are not the law, they are only evidence of what the law is, and when they depart from principle, they should not be regarded. No number of English precedents can consecrate an error, or give it right to a place in our tabernacle of justice.
    The cases which have .arisen in this country do not afford any entirely satisfactory result. In Methodist Episcopal Church vs. Jacques, (3 John. Ch. and 17 John. R.) on appeal, the subject underwent great discussion. Chancellor Kent, after an elaborate investigation of the case, decided in favor of the limited powers of femes covert, holding that they had no powers but those conferred upon them by the settlement. His decision was reversed, but greatly upon the circumstances of the case. In Pennsylvania, the enlarged construction of the woman’s powers has been twice recognized. Newlin vs. Newlin, 1 Ser. and Rawle: Dellam vs. Walpole, 1 Peters. In a still more recent case in the supreme court of that state, it has been decided, “that a feme covert, in respect to her separate estate, is to be deemed sole only to the extent of the power clearly given by the instrument fiy which the estate is settled, and she has no right of disposition beyond it. Lancaster vs. Dolan, 1 K-awle, 231. InJEwing vs. Smith, (3 Des.) it was held by Chancellor Dessaussure, that a married woman was, as to her separate property, a feme sole,, except so far as she was restrained by the settlement. But this decision was reversed upon appeal, and the rule settled that she was only sole so far as the instrument made her so. This decision was made upon principle, not upon the score of precedent. The weight of American authority is in favor of the rule for which I contend. If this court should adopt it, the-case will be decided for Mrs. Elam.
    
      Balch, on the same side.
    Mrs. Elam, a citizen of Virginia, possessing a large fortune, having fixed her affections on Mr. Elam, then deeply involved in debt, and in fact insolvent, a marriage settlement was executed by the parties, Elam and wife, and ffm. Brown Hamblin, trustee of the settlement. In a few-days after the marriage, Elam persuaded his wife to assent to the destruction of the settlement, to which the trustee agreed; his name was torn from the instrument, which was however preserved by Elam. Shortly after these transactions, Elam and wife removed to Tennessee, where the slaves specified in the marriage settlement were seized at the instance of the creditors of Elam, and who were such long anterior to the time of the execution of the marriage settlement. This deed never was -registered in the State of Virginia, nor in Tennesee until after the slaves were seized as stated above.
    The deed declares, that the trust property specified therein shall be held by the trustee for the mutual support and comfort of Elam and wife, and gives to her the power to dispose of it by will.
    The court is called on to decide two grave and important questions, arising on the record.
    1st. Whether the deed of marriage settlement is good and valid, as between Mrs. Elam and the creditors of her husband, who are here parties to this cause, and claiming the slaves in dispute, Mrs. E. having agreed to destroy the deed. The instrument was executed in Virginia, and should abide the decisions of the courts of that state upon this question. Fortunately for Mrs. Elam, this question has been decided in the case of Laud vs. Jeffries, reported in 5 Randolph’s reports. The opinions of the judges are there given seriatim, and after great reflection and research. They cover every part of this branch of our cause, and supersede all necessity for argument on our part, drawn either from reason, analogy, or adjudged cases in this or other states of the confederacy. According to the construction given to the registration act of Virginia, the deed of settlement is good without registration as between Mrs. Elam and Elam’s creditors.
    The second question has been vexata questio for more than a hundred years in Great Britain and the United States; and it is this: whether a married woman possesses the power to act as a feme sole, and by her acts to charge her separate estate, unless such power be expressly given her by the deed creating such separate estate.
    In the case of Norton ,vs. Turbeville, (2 P. Wms. 144,) the feme covert had a separate estate, she borrowed money, and gave her bond. Ten years afterwards, she made her will, gave legacies, appointed executors, and died. It was objected that her bond, she being a feme covert, was void at law, and that she was not bound. The master of the rolls decided, that although the bond was so far void as not to be sueable at law, the demand could be supported in equity, so as to charge the separate estate.
    In the case of Standford vs. Marshall, (2 Atkyns, 68,) a father by deed created a trust of real estate, and directed the profits to be paid to his daughters, whether sole or covert, for their separate use, either into their own hands, or into those of any other person whom they might appoint. The daughters joined their husbands in bonds for money loaned to the husbands. The trustees refused to pay, _ . .. , , , , ana the creditors Drought a bill to compel them to pay the profits of the real estate. The court decreed for the complainants, and sustained the bonds. To the same effect is the case of Parteriehe vs. Paulet, 2 Atkyns, 383: also the case of Allen vs. Passwortb, 1 Ves. Senior, 163. In Heard vs. Greenbank, (1 Yes. Sen. 298,) the Chancellor stated, that it was a rule of the court, that a feme covert may dispose of personal estate given to her separate use, and subject to her disposal.
    In the case of Grisby vs. Cox, (1 Vesey, Sen. 317,) the chancellor made this hroad declaration: that where any thing is settled to the wife’s separate use, she is considered as a feme sole; may appoint in what manner she pleases,' and unless the joining her trustees is made necessary, there is no occasion for that. To the same effect is the case of Peacock vs. Monk, (2 Ves. Sen. 190, 3,) where a feme covert having a separate estate, borrows money and gives her bond; the money may be demanded against her, out of her separate estate, she being a feme sole as to that.
    In the case of Cartony vs. Newman, (3 Bro. C. C. 346,) a legacy had been given to the wife for her sole use, with a power of appointment by will, and in default to her executors. It was ordered, she assenting, to be paid to the husband. This was a plain departure from the mode of appointment pointed out by the testator, to wit, by the will of the wife; yet it was supported. In Hulme vs. Tennant, (1 Bro. C. C. 16,) Lord Thurlow said, “the principle is, that if a court of equity says a feme covert may have a separate estate, the court will bind her to the extent as to making that estate liable to her own engagements, as payment of the debts,” &c. Next came the case of Fettiplace vs. Gorges, (3 Bro. C. C. 8,) the decision of which affirmed those of preceding cases.
    In Pybus vs. Smith, (3 Bro. C. C. 340,) the Chancellor said, “If a feme sole sees what she is about, the court allows of her alienation of her separate property; X t Í, and her conveyance of the whole to pay her husband s debts, will be carried into execution.”
    In Ellis vs. Atkinson, (3 Bro. C. C. 565,) it was decreed, that the separate estate of the wife, subject to her disposition by deed or will, should be bound by her agreement, and paid over to her husband.
    These repeated decisions were believed by some to have settled the contested question as to the power of disposition by a feme covert, of her separate property.
    But, in the case of Socket vs. Wray, (4 Bro. C. C. 483,) Lord Alvanley, startled by the extent to which they had gone, resolved to resist their authority, and declared that he could not sustain them.
    Then came the cases of Hyde vs. Price, (3 Ves. jr. 437,) and ofWhistler vs. Newman, (4 Ves. jr. 129.) This latter case was decided by Lord Rosslyn, who agreed in opinion with Lord. Alvanley.
    In Mores vs. Huish, (5 Ves. jr. 692,) Lord Rosslyn persevered, although the early decisions of Hardwicke and Thurlow were pressed earnestly upon him, and their binding effect as precedents confidently asserted.
    In Spaling vs. Rochefort, (8 Ves. jr. 164,) Wagstaif vs. Smith, (9Ves. jr. 520,) Parker vs. White, (11 Ves. jr. 209,) Lord Chancellor Eldon said, that his mind was in great distraction upon this subject, but that he could not overturn the decisions of Hardwicke and Thurlow; and finally declared that a married woman, having an estate to her separate use, is capable of selling it, provided she is dealing with persons competent to deal with her, and not taking unfair advantages of her.
    In 12 Ves. 501, 13 Ves. 189, and 14 Ves. jr. 542, the decision of Lord Eldon, in Parker vs. White, (11 Ves. jr. 209,) is affirmed. The same doctrines are laid down in the elementary treatise of Mr. Newland on Contracts, page 25, The court will remember, that the decisions cited are from our mother country, Great Britain, an(j that here, in Tennessee, the question is res integra. li learned chancellors oí later times have acknowledged that their minds were in great distraction upon this question, it should admonish this court to pause and reflect maturely, whether they will embarrass their successors by a precedent not founded in principle.
    In South Carolina, this question was decided; (see 3 Dessaussure, 427,) two of the Judges adhering to the views of Lord Eldon, and three in favour of the opinion of Lord Alvanley.
    In New York, in the case of Jacques vs. the Methodist Episcopal Church, (reported in 1, 2 and 3 Johnson’s Chancery Reports, and 17 Johnson’s Reports, 648,) Kent, whose authority is at least equal to that of any other judge in our Union, was of opinion that a feme covert holding a separate estate to her own use, could not dispose of it as if she were a feme sole. It is true, that this decision of Chancellor Kent was reversed by the court of errors; that Spencer and Platt aided in that reversal; both of them possessing illustrious reputations in the judicial annals of the “empire state.”
    But, unfortunately, no great reliance is to be placed upon the decisions of the court of errors of New York. This court is mainly composed of senators, elected directly by the people, and wjio are in many instances wholly'unacquainted with the science of the law. Hence, in that court, the judges ,are often found opposed to each other upon questions of deep interest, involving the sacred rights of person, reputation and property. At the same term at which the case of Jacques vs', the Methodist Episcopal Church was decided, involving the question which we are now discussing, that of King vs. Baldwin was settled, which presented a question of great magnitude and much novelty; and on that occasion Spencer declared for a reversal of the decree of the Chancellor, whilst Platt, Yates, and that profound lawyer, Van Vech-ten, were for affirming it. It is admitted even in the state of New York, that the decisions of the court of errors ot that state are to be viewed with suspicion, and that the disagreements amongst the judges of the supreme court and the chancellors, who also sit in the court of errors, upon the most important questions, constitute a solid objection to that tribunal.
    But, in the case of Jacques vs. the Methodist Episcopal Church, there was an almost unanimous opinion in favour of a reversal. The fact that the funds and property in dispute were to go to a religious denomination of people, to the impoverishment of a meritorious individual, in a case of extreme hardship, might have had a prevailing influence over the tribunal making the decree of reversal.
    As the question which the court is now for the first time called upon to settle, is res integra, it becomes us to examine it upon principle apart from precedent. Marriage settlements have been of frequent occurrence in Great Britain, for more than a century. At first, they were probably the offspring of prudential considerations; after a while, in some cases, of mere convenience and refinement in the higher and wealthier classes of society. But whilst the law permitted them to be made on the one hand, the officers of the law set themselves to work on the other, to render them as inoperative as possible. Instead of following out the plain import of the terms employed in these settlements, the chancellors comprehended within the scope of their judicial views, what they denominated the principles of public policy with reference to the bonds of matrimony. Thus they began to legislate and reason down the plain contracts of parties, for the sake of the public morals. Parties to these deeds of settlement were told that the judges would prostrate their contracts, that the affections of those united in the sacred bonds of marriage might be preserved in all their strength and purity; that the wife should have no interests separate from those of her husband; for wherever this was the case, the husband and wife were no longer united pro bono etmaio, but that they became aliens to one another; that then mutual aversion springs up in those hearts where before “Love had employed his golden shafts and lighted his comfort lamp.”
    Spencer and Platt, in the case before cited, proceed upon the ground of the adjudged cases in England, and also maintain that the rules of the common law which give to the husband all the personal property of the wife, and the rents and profits of her real estate during cover-ture, are better calculated to secure domestic tranquility and happiness, than settlements securing to the wife a property separate from and independent of the control of the husband. The possession by the wife of property independent of and beyond the control of the husband, would be likely to produce perpetual feuds and contentions. The ancient provisions of the common law show forth in our own country, decisive proofs of its benign and salutary influence.
    Here these judges proceed on the principle of protecting the harmony of the marriage state. Let us apply these doctrines to the very case now before us. This lady, Mrs. Elam, became attached to her husband. He told her that he was bankrupt. Her fortune was ample, and the proceeds fully adequate to the support of herself and husband in that style of elegance to which she had been accustomed. A marriage settlement had been executed; and in the first fervors of a consummated affection, he prevails upon her to assent to its destruction. If this act of hers is ratified by the decree of this court, she is sunk into the very depths of poverty. Does the court believe that such a decision will add strength to the tender attachments of these parties, or advance their happiness ? If the law shall declare all marriage settlements to be void on the foot of public policy, and for the sake of domestic happiness, be it so. But if they are lawful, all we ask for is that their provisions be strictly enforced, and that the helpless feme covert shall be protected from the arts, the frowns, and the kisses of her husband and his greedy unfeeling creditors.
    The argument that “these settlements are likely to produce, perpetual feuds and contentions,” seems to be more specious than solid. In most cases, the seeds of that rebellious spirit, which the wife having a separate property may manifest towards her husband, are sown long before the period of marriage. This spirit may be' traced back in most instances, to a defective early training, to the indulgence of bad propensities in infancy and youth; not to the simple and single fact that the feme covert has an income for herself and children, independent of the effects and fortune of her husband. In the faithful discharge of the duties of that mysterious connex-ion called marriage, the weaker sex may proudly challenge competition with the stronger. All experience teaches us, that in devotion to the interests of their husbands and their children, in tenderness, patience under calamity, in disinterestedness, they are wholly without rivals in the opposite sex.
    In this country, where the laws of primogeniture and entails have been abolished, where even executory devises are looked upon with jealousy, these marriage settlements must be sustained, upon the principle that they are in many cases demanded by justice, humanity and prudence.
    This is an age of enterprise, of bold, reckless speculation, of refinement and increasing luxury. There are cases of frequent occurrence, in which it is the duty of an affectionate parent to place at least a portion of his means beyond the control of his daughter’s husband, and even the daughter herself, to save her from the improvidence, the immorality, even the kind heartedness of the man to whom she is united; for it often happens .in this country, that men are ruined by their responsibility for others, prompted not by interest, but sheer good feeling.
    
      It seems to be a mere fancy to suppose that the affections and feelings of nature m the marriage state, are to be extinguished by the provisions of a marriage settlement, when we have continually such overwhelming proofs of their irresistible power, in the generous devotion of American wives and mothers! It is to avoid the effects of this devotion, that we contend for a literal execution of the provisions of these settlements. By the forecast of a father, provision is made for a daughter, that she may be protected from the vicissitudes and calamities to which her husband, engaged in commerce, in deep speculation in stocks, in banking, in the purchase of land or other real estate, is forever liable. The husband rouses the sympathies of his wife by a detail of his distresses; instead of going to the trustee, he appeals to her, the wife of his bosom and the mother of his children; her affections surrender up that which her judgment strongly condemns. It is gravely demanded of a court of equity, to confirm that which has been yielded by a powerless and suffering female. Let the rules of the court be inflexible upon this subject, and all difficulties will vanish.
    We ask then of this court, that it shall declare the deed in question here, good and valid, as between Mrs. Elam and her husband, between her and Elam’s creditors, although the same was not registered in Yirginia, where it was executed. We also ask this court to decree, that Mrs. Elam, being a feme covert, was incapable of any assent to the destruction of this deed of settlement; that the same is still good and valid to all intents and purposes; that as the trustee, Hamblin, has abandoned his trust, this court shall appoint another to fulfil the intents and purposes of this marriage settlement, for the benefit of Mrs. Elam.
    
      Wm. E. Jlnderson, in reply,
    argued very fully the different questions.
   Whyte, J.

For the Mr. Morgans, it is argued, that , the marriage settlement is cancelled by the act ot the trustee, Hamblin, in cutting out his name, signed thereto in its execution by him as a party, by which the property, the subject matter of the deed, has revested in the wife, Mrs. Elam, and consequently, simultaneously in the husband, under his marital rights by the common law. To prove this marriage settlement cancelled by this act of the trustee, and the property therein specified revested in Mrs. Elam, Bl. Com. 108, and 4 Cruise’s Dig, 497, 498, 414, and Sugden on Powers, 400, are cited and relied upon. These authorities when looked into, will be found not to support the position. Blackstone says, <£a deed maybe avoided by breaking off or defacing the seal, or by delivering it up to be cancelled. ” He is here laying down the different ways by which a deed may be avoided by matter arising ex post facto to its execution; and the above are two of those ways; the others are not noticed here, as they have no bearing on the present case. This expression of the author, that a deed may be avoided by breaking off or defacing the seal, and by delivering it up to be cancelled, is general, and seems ex vi tcrminorum, to extend to all cases where those acts have existence. Separately, and in this light, it is viewed in the argument, to wit, that a deed is avoided and rendered a nullity, either by breaking off or defacing the seal, or by delivering the deed up to be cancelled, without reference to the subject matter of the deed. Such is not the learned author’s meaning in the above passage, and reference to his authorities proves it. His view is limited and circumscribed by the boundaries of the case to which he has so referred in his work. That case is Matthewson’s case, 5 Coke, 23. That was a case on a Charter party, between a merchant, .the owner of a ship of the one part, and seven merchants of the other part. The máster and owner covenanted on his part, to ship certain merchandizes, at such a port beyond seas, and transport them to London, and the merchants covenanted separately, to pay each three hundred pounds. Debt was brought against one of the merchants on the instrument, to which the defendant pleaded, that the seal of another of the merchants fixed to said indenture, was broken from the deed. To which the plaintiff demurred. And it was remarked, that if the seal of one of the merchants be broken off, it should not avoid the deed, but only against him; that if the seal of the master and owner had been broken from the deed, all their covenants had been defeated; because their covenants had been joint. And if the deed' had been rased in the date, after delivery, it had gone to the whole, and judgment accordingly. Such is the case in Coke, upon which the doctrine in Bl. Com. is predicated, and may be good law, but has no similarity to the case before the court; it is wholly different. It is not a case purporting to transfer specific property, real or personal, as the case before the court, but a case of a deed of covenants, resulting in liabilities to be discharged in peculiar indemnities and undertakings according to the event.

The purport of the two other authorities cited by the counsel for the Messrs Morgans, are of the same nature of that from Bl. Com. Sugden on Powers, 400, says, if an instrument be altered by rasure or otherwise, in a material part, by the person for whose benefit it was intended, the deed becomes absolutely void; and he refers to Whelpdale’s case, 5 Coke, 119 a. The extent of the citation will be measured by reference to the case cited. Whelpdale’s case was an action of debt, brought on a bill obligatory. The defendant pleaded non est factum. The jury found the bill was a joint bill made by defendant and another, to plaintiff, and prayed the advice of the court on the matter, whether the bill was the deed of the defendant. It was adjudged that plaintiff recover. There are three resolutions by the court in this case. In tbe third resolution is the following passage, on account of which, reference is made by Sugden,

“In all cases, when the bond was once his deed, and becomes rased either by rasure or addition, or other alteration of the deed, or breaking off the seal, in this case, although it was once his deed, yet the defendant may safely plead non est factum. For, without question at the time of the plea, which is in the present tense, it was not his deed.” Now the purport of this case is precisely the same as Matthewson’s case above noticed; the case itself is a writing obligatory j and the doctrine in the third resolution is predicated on a bond; for it says, “In all cases, where the bond was once his deed,” &c. as properly confining what follows after, to the case of bonds. The authority from 4 Cruise’s Dig. 497, sec. 14, is of the same purport, as those from Blackstone and Sugden. And although the expression is general, yet like them, the true meaning and extent embraces bpnds only, and perhaps extends not to every kind of them. Certainly not to such deeds as the marriage settlement in the present case, which upon its execution, passed a present estate in the property comprised within it. This is proved by the next following section, 15, which is incompatible with the allowance of a more extended signification to the 14th section than that now assigned to it. It is in the words following: “but when an estate actually passed by a deed, the cancelling of such deed after-wards, will not divest any estate out of the persons in whom they were vested by that deed.” Vide also, C. D. p. 11, s. 29, 60: p. 94, s. 41, 42, 43: p. 147, s. 22: 10 Johnson’s Rep. 467, 461-2. I take this 15th section to be a correct summary of the law, in relation to deeds passing estates, both in real and personal property; and is supported by the most respectable authorities, both’ in England and in the United States.

Admitting this principle to be correct, that the cancellation of the deed passing an estate, does not divest the estate passed out of the grantee and reinvest the grantor , 1, . , , therewith, it ceases to be important to examine whether the deed of settlement in the present case was cancelled or not; for as the trustee, Hamblin, has made no conveyance to divest himself of the estate given by the settlement, it remains in him subject to the trusts to be by him executed.

And in the event of failure or refusal by him, it devolves upon the court to execute it. I feel myself, however, from the facts and circumstances of the present case, compelled to say, that although there is a cancellation in part in the marriage settlement, there is no cancellation in law by the acts done by the parties; holding it to be well established, that a cancellation in form may be inoperative if done either through a mistake or fraud. I shall, however, in the first place, (although I may advert to the inoperativeness of the cancellation afterwards,) proceed to prove by some authorities, old as well as late, that the cancelling of such deed afterwards, will not divest any estate out of the person, in whom it was vested by that deed. Thus in Hudson’s case, Prac. in Chan. 235: 4 Cruise’s Dig. 497, sec. 16: 2 Vern. 476: a father having quarrelled with his eldest son, made a settlement of one hundred pounds a year, in augmentation of his wife’s jointure. Afterwards being reconciled to his son, he cancelled the deed, and so cancelled, it was found after his death by the wife. On a trial at law, the deed being proved to have been executed, was adjudged good, though cancelled; and she recovered upon it. This case proves the principle that where an estate has passed out of the grantor by his deed, or in other words, vested in the grantee, the cancellation of the deed after this, does not divest the estate thus vested, out of the grantee, and reinvest it in the grantor. It further proves, that the estate purported to be passed by the deed, passes upon the execution of the deed, and is vested forthwith in the grantee.

This case of Hudson is parallel to the present. Mrs. Stokes, afterwards Mrs. Elam, is the grantor, and William Brown Hamblin grantee. Samuel Elam is a party to the deed, but as being the intended husband, the execution by him operates to show his knowledge, and his assent to the transaction; by which knowledge and assent, his common law marital rights, are commuted for the rights and privileges created and conferred on him by the powers and provisions of the settlement. As soon therefore as the deed of settlement was executed, the land negroes, &c. passed out of the hands of Mrs. Stokes the grantor, and became vested in William B. Hamblin, the grantee, and the cancellation afterwards of the deed by him, did not divest him of the estates or interest previously vested in him, and which still remain so, as far as respects the operativeness of the cancellation.

The same principle is expressly recognised in the case of Leech vs. Leech, 2 Ch. R. 4: C. D. 497, sec. 15. Where an estate has actually passed by deed, the cancel-ling of such deed afterwards, will not divest any estate out of the persons in whom they were vested by this deed. The case of Barlow and wife vs. Hencape, must, from the note of it in 2 Yern. 476, have proceeded upon the same principle. There are other old cases on the same point, and to the like effect, which I shall not further notice, than by referring to them. Latch. Rep. 226: Palm. Rep. 403: 2 Lev. Rep. 113: also, 1 Rep. in Ch. 100: Gilbert’s Rep. 236: Harg and Butler’s notes to 1st Inst. 225-6, note 36, where the learned annotator says, “ It is to be observed, that the cancelling of the deed does not divest the estate from the persons in whom it is vested by the deed. The case of Bolton vs. the Bishop of Carlisle, the Earl of Lonsdale, and Smith Clerk, is a modern case of the highest authority. 2 H. Bl. 259. Two questions were made in the cause. The first on pleading, which is not necessary to be stated. The second, whether a deed had lost its effect by the seal being taken off, raising the question whether the right once vested in the plaintiff, was div'ested by the release being so cancelled; (the case stated the seal was taken off and destroyed or lost.) Lord Chief Justice Eyre: I have no doubt on either point; as to the second, I hold clearly, that the cancelling a deed will not divest the property which has once vested by transmutation of possession; and I would go farther and say, that the law is the same with respect to things which lie in grant. In pleading a grant, the allegation is, that the párty at such a time did grant; but if by accident, the deed be lost, there are authorities enough to show that other proof may be admitted. The question in this case is, whether the party did grant? To prove this, the best evidence must, be produced, which is the deed; but, if that be destroyed, other evidence may be received to show that the thing was granted. God forbid, that a man should lose his estate by losing his title deeds! When I sat in the Exchequer, questions arose on real compositions, in which it was contended, that according to the old opinions, the original deed must be shown; but, though the old books say that a real composition must be by deed, I always held that the production of the deed was unnecessary, and that the party could show that it commenced originally by deed, if the deed were lost.” Gould, J. I am of the same opinion with my Lord-Chief Justice; a man’s title to his estate is not destroyed by the destruction of his deeds. The case where the seal was eaten off by rats, must be in the recollection of every one. It was properly said by my brother Lawrence, that the defendants should have pleaded that the party did not release, upon which the issue might have been taken, and then if the deed had been cancelled by the consent of both parties, that might perhaps have been given in evidence, though I much doubt whether even that would have helped him.” Heath, J. as to the second point: As this is a conveyance deriving its effect from the statute of uses, all that is averred about the deed be- , , . , , mg destroyed is mere surplusage; but, 11 it were necessary, surely no one will say, that if deeds should happen to be stolen, therefore that the owner should lose his estate.” Rooke, J. agreed “that a right once vested, is not divested by merely cancelling the deed.” I have been more particular in stating the substance of this decision, as it contains a summary of the law as now settled on this question at the present day, not only in deeds for land, but deeds generally.

In support of this last position, the authorities both old and recent, English and American writers, and adjudged cases, concur. Thus in Gruise’s Dig. title 32, Deed, ch* 1, sec. 29, and authorities there cited, it is laid down, “all deeds, whether deriving their effect from the common law, or the statute of uses, do immediately upon their execution by the grantors, divést the estate out of them, and put it in the party to whom the conveyance is made, though in his absence and without his notice, till some disagreement to such estate appears.” The case of Clavering vs. Clavering, (2 Ver. 473,) sustains this principle: The father settled the manor of Lansdown on his grandson, Sir James, in 1624, a voluntary conveyance; afterwards, in 1690, with regard to this settlement of 1624, he conveyed the same manor of Lansdown to his son Henry. The father never delivered or published the settlement of 1624, but it wias found after his death amongst his papers. The deed of 1690 being after mentioned by the father as the settlement of Lansdown, and so endorsed with his own hand, and the tenants told that Henry was to be their landlord after his death, it was adjudged in favor of the first deed. The Lórd Keeper observed, that if a prior deed without more, might be discharged by a subsequent deed, there would never be occasion for powers of revocation, and that would have been an idle and unnecessary provision in deeds, and would not have been so long used and practised by learned men; and (says he) although the settlement of 1624, was always in the custody and power of the father, yet that did not give him a power to resume the estate.” This decree being appealed from,, was confirmed in the high court of Parliament, 16th January,, 1705. 1 Br. Pro. C. 122. These authorities establish the position, that the estate passed from Mrs. Elam to William B. Hamblin, upon execution of the deed of marriage settlement, not in its essential only, but even in all its formalities; for the defence set up, shows the possession was held by the grantee at a period subsequent to the' delivery.

But it is further argued by the counsel for the plaintiffs, the Messrs. Morgans, that if the exceptions already noticed of the estate’s not vesting in the grantee, Hambliny upon delivery; or second, that its cancellation, under the circumstances, defeated its validity, by rendering it inoperative, should be against them, neither of them rendering the deed void; yet, they insist it is void for want of registration, under the Virginia act of 1790, ch. 90, sec. 4, and the act of Tennessee of 1805, ch. 16, sec. 2, and the Virginia act of 1792, ch. 50, sec. 4. The first of these says, “That after the passing hereof, all deeds and mesne conveyances, for the absolute transfer of any estate in lands, tenements and hereditaments, or for the settlement of lands, tenements, &c. or the settlement of slaves or other personal property, in consideration of marriage, and all mortgages and deeds of trust, whatsoever, which shall be hereafter made and executed, shall be void as to creditors and subsequent purchasers, unless the execution of the same shall be acknowledged by the bargainor or grantor, or proved by two creditable witnesses at least, and registered in the county where the land lies, or in case of slaves or personal property, where the grantor, resides, within nine months from the time of executing such deed, mesne conveyance, mortgage or deed of trust.” It is to be observed, that the act does not say that the deeds of conveyance, marriage settlements and deeds of trust, shall be void to all intents and purposes, ¡andan all cases, unless proved and registered m the coun<y where the land lies, within nine months, as in the case of personal property, where the grantor and bargainor reside, but they shall be only void against creditors and subsequent purchasers, leaving them good as to other purposes, and valid against the grantors, the bargainors and their heirs. And this has been the settled and uniform construction put upon registration acts. ££An unregistered deed,” says Ch. J. Kent, in delivering the opinion of the court in the case of Jackson vs. Burgott, ££is in no case void. It is always good as against the grantor and his heirs.” Fide 10 John. K. 461. The intention of the registry acts, is to prevent mischief that might ensue from parties holding up their deeds, without being clothed with the possession, thereby confining the knowledge of the transaction to themselves, to the exclusion of all others, exposing them by these means to imposition .and loss, the certain fete of the second purchaser; and to remedy these mischiefs and prevent them in future, was the object of registration acts. And it is further to be observed, this policy was not confined to marriage settlements alone and deeds of trust, but was intended to aid and embrace all conveyances for the transfer of property. Thus, when the statute of uses 27, H. VIII, ch. 10, was made to avoid the subtleties and clandestine uses at common law. 6 Com. Dig. uses, B. 1. An use by the common law, was a trust reposed in him who had the estate in the land, that the cestui que trust might take the profits. Ibid, Co. Lit. 272, b. This use was descendable and assignable by secret deeds between the parties, not liable to any of the feudal burdens, and not extendable by writ of elegit, or other legal process, for the debt of cestui que trust; which inconveniencies and mischiefs, caused said statute of H. VIII, ch. 10, to be made, which conveys the possession to the use, and transfers the use into possession, thereby making cestui que trust complete owner of the lands, as well at law as in equity. 2 Bl. Cora. 333. It was foreseen that this statute would give rise to new and secret species of conveyance that would want all those benefits of notoriety which the old common law assurances were calculated to give. To prevent therefore clandestine conveyances of freeholds, the same sessiomof Parliament passed a statute, (27 Henry VIII, ch. 16,) that all bargains and sales should be enrolled in six months. 2 Bl. Com. 332.

The words of the statute are C£no manors, lands, tenements, &c. shall pass, alter, or change from one to another, whereby any estate of inheritance or freehold, shall be made . or take effect in any person, or any use thereof be made by writing indented, sealed, unless enrolled in one of the King’s courts of record at Westminster, or else within the same county, &c. where the same manors, lands, &c. lie, or be, &c. and the same enrollment to be had and made within six months next after the date of the same writings indented,” &c. The expression of this statute on the subject matter of it, is as strong and comprehensive as that of our act of 1715, ch. 32, 1805, ch. 16, sec. 2, or any other of our acts for the regulating conveyances and their registration. I have noticed it here for the purpose of showing the construction which the English chancellors have given- it. In the case of Le Neve vs. Le Neve, Lord Chancellor Hardwicke says, ccwhat has been the construction of this statute ever since? that if a subsequent bargainee has notice of a prior purchase, he is equally affected with notice, as if the prior purchase had been a conveyance by feoffment and livery.” In comparing this act with the registration act of 7 Anne, ch. 20, he says the operation of both acts of Parliament and the construction of them are the same. And it would be a most mischievous thing if a person taking the advantage of the formalities appointed by the act of Parliament, under that should protect himself against a person who had a prior equity of which he had notice. 3 Atk. 652: 1 Yes. 66: Amb. 442-3. The construction upon these acts, therefore, proves that the want of registration does not render the deed void, only as to subsequent purchaser without notice of the first deed. The expression in the statute 27 Hen. VIII, ch. 16, no lands shall pass nor estate, &e. of inheritance take effect in any person unless enrolled in six months, notwithstanding couched in the most general and comprehensive terms, has only the limited operation above noticed, and of course is valid to other purposes against the grantor and his heirs.— American decisions are to the same effect; thus in Jackson vs. Burgott, (10 John. Rep. 457,) Kent, Ch. J. in delivering the opinion of the court, points out the object of registration acts, their effect upon prior and subsequent deeds, from the same grantee; he says it may be assumed as a settled principle in the English law, that when a subsequent purchaser whose deed is registered, had notice at the time of his purchase of a prior unregistered deed, the prior deed shall have the preference, for the object of the registry acts, is to give notice to subsequent purchasers. And in the case stated the object of the act is answered; and the purchase under such circumstances is a fraud. It is considered as done mala fide, by assisting the original vendor to defraud the prior vendee, and the court will not suffer a statute made to prevent fraud, to be a protection to fraud; an unregistered deed is in no case void; it is always good as against the grantor and his heirs. And the question here is between a valid and a fraudulent deed. (10 John. Rep. 457;) in which case he takes a review of the decisions of Lord Hardwicke, in Le Neve vs. Le Neve, and other cases to the same effect, approving them and adopting their principles as equally available in law and equity.

This marriage settlement and deed of trust from Mrs. Elam to Wm. H. Hamblin, is not therefore void for want of registration. I have already shown it not void by the cancellation, as the estate vested by the execution of the deed did not revest upon the cancellation and redelivery up of it, to the order of the grantor. On this last point, as an additional authority, may be cited the case of Jackson vs. Chase, 2 John. Rep. 84.

If this deed of trust from Mrs. Elam to William B. Hamblin, is not rendered invalid or void, because of the cancellation in form, the estate thereby vested in the trustee, and the want of registration not rendering it void against the grantor, how is it to be considered by a court of equity upon a bill by a party praying relief? I answer it is to be considered in the same view, as if the attempt to cancel and destroy it, and the acts done in pursuance thereof, had never taken place, but the deed as still remaining in the possession of the trustee, Hamblin, and in statu quo, pursuant to the confidence reposed in him, and the trust undertaken by him. And further, it is to be considereS that this trust has been duly executed as far as the execution and delivery of the deed warranted the execution of the trust, to wit, registration of the deed, before the reception by him of further powers from the grantee by virtue of and under the deed. The power of registering it was transferred, and the duty of doing so was imposed upon him by becoming the grantee of the legal estate upon delivery of the deed and his acceptance of the same; for the power and duty became attached to the right of custody and possession. See the case of Raynell vs. Long and others, Carthew, 315.

To this extent, a court of equity will give relief, first, as against the trustee, Hamblin. It was his duty to have recorded the deed, a public statute of Virginia required it to be recorded within three months from its date; this he was bound to know and to act accordingly. The terms of the trust deed did not require this act to be done by him in so many words, but he had the means of doing it, by having the actual possession and custody of the deed, to which the law entitled him; (see the above case in Carthew’s Rep.) and the purpose of the deed, the giving of notice to all creditors and subsequent purchasers, required its being recorded. Suppose that no act on the part of Hamblin had intervened to intercept the recording of the deed, than his mere omission in doing it, such omission would be a breach of trust, and he would be liable for the consequences. Thus, in the case of Lord Montfort vs. Lord Cadogan, (17 Ves. Jr. 425,) the Master of the Nolls, sir William Grant, says, under the marriage settlement of Lord Montfort, it was the duty of the trustee to keep these leases renewed. They are not in so many words directed to renew, but the means being given and the purpose expressed, there is no doubt, they wore to apply those means to that purpose. One easily gives credit to persons of the description of those trustees for acting only from humane and proper motives] they could act from no other; but that conviction, however it might operate as an inducement to the plaintiff to forego his strict right, cannot authorize the court to refuse to listen to his claim of indemnity on account of a breach of trust. And in the case of Caffrey vs. Darby, (6 Ves. 490,) the trustees were charged with a loss occasioned by their negligence, though without any corrupt motive. But let us see what were the other duties of the trustee expressly undertaken by him in so many words, by the solemn contract of a deed. They were to have and to hold the said estate unto the said William B. Hamblin, his heirs, executors, administrators and assigns: But upon trust and upon condition, nevertheless, for the uses and purposes hereafter mentioned, and none other. That is to say, “to suffer and to permit the said Elizabeth to hold the same, as her absolute estate, until the solemnization of the said intended marriage, and from and after the solemnization thereof, for their support and maintenance during their joint lives, using the said stocks and their increase, as may be proper and usual with persons owning such property, and so as to keep up a sufficiency for the ordinary purposes of such plantations; and? after the death of the said Elam, if he should die first.. then to the sole use of said Elizabeth, as her ábsolute estate. And after the death of said Elizabeth, if she shall fii'st die, to such persons as she, by writing in the nature of a last will, executed before two witnesses, shall appoint to receive the same, and in default of said appointment, then to the next of kin, or right heirs of the said Elizabeth; provided, nevertheless, that it shall be lawful for the said Hamblin, upon the request of the said Elizabeth, in writing, to make sale of any part of said estate, and to invest the proceeds in any other property which may be expedient and proper .for the parties, or for the more comfortable support of the said Samuel and Elizabeth, during their joint lives.” These were the duties of this trustee, reposed in him by the parties, and undertaken by him to be executed under the solemnities of a deed. . His answer shows the execution. He there says, “that a short time before the marriage took place between Samuel Elam and Elizabeth, his wife, he was solicited to become a trustee, in a marriage contract, or deed, which the said Elam and wife had agreed to have executed before the solemnization of the marriage. That this respondent being the intimate acquaintance of the said Elizabeth, felt every disposition to serve her as far as he had it in his power to do so, and consented to become trustee as required by the parties; that in a short time the deed was regularly prepared under the direction of counsel, and executed a short time before the marriage, with the name of this respondent thereto attached as trustee; which deed was then delivered to him, and retained by him for some time thereafter, and until he received a letter, now in his possession, from the said Elizabeth Elam, requesting him either to send the deed by Mr. Elam, her husband, or burn it; concluding her letter with these words: “I am willing to blend our fates completely,” attaching the initials of E. E. thereto. This direction was given to this respondent before the deed was recorded, which indeed never has been done. As this respondent had consented to become the trustee, as the friend of the parties, he felt no hesitation in complying with her request to cancel it, and cut his name from the paper, believing the parties had a complete and entire control over it, as long as it remained from the record, and that they were the best and entire judges of their own interest.” This answer discloses the facts, upon which equity raises his liabilities. He admits he consented to become a trustee, and that in a short time after, the deed prepared under the direction of counsel was executed, with his name attached thereto, as trustee; it was then delivered to him, and retained by him for some time thereafter. What is his liability upon these facts? In Jeremy’s Ch. Jurisdiction, page 38, it is laid down, “and here it may be observed, that if the property should have been vested, and the trust reposed in him by a deed to which he was made a party, and which as such, he executed, he would thereby have accepted the trust and bound himself to its performance.”

If he has not performed the trust, what is the consequence, what is his liability for the omission? The consequence is, that equity considers and holds the omission a breach of trust, (see the case of Lord Montfort vs. Lord Cadogan, 17 Ves. 482-9,) and makes the trustee liable for the consequences of a breach of trust. This is the settled doctrine of equity, and so laid down by Lord Redesdale, in Adair vs. Shaw, 1 Sch. and Lefr. 272. He says, “it has been the constant habit of courts of equity to charge persons in the character of trustees, with the consequence of a breach of trust, and to charge their representatives also, whether they derive benefit from the breach of trust or not.” The Master of the Rolls, Sir Willaim Grant, in the case of Montfort vs. Cadogan, recognizes and adopts this principle, as laid down by Lord Redesdale. Hamblin may therefore be rightfully visited with all the consequences, all the losses sus-famed by the cestui qve trust, in the present case, whatever they may be.

But further: there are other breaches of trust in the present case, which although they may not incur a greater responsibility than non-performance, by omission or negligence, yet from the flragrancy of their nature, and unquestionably apparent evil result, and mischievous tendency, forbid even a supposition that they could have proceeded from any proper motive- whatever-. Such in the present case is the mutilation and cancellation of the trust deed. This partial cancellation in the'present case has taken place; its effect in equity is next to be seen-. Lord Hardwicke, Chancellor, in the-case of Sattern vs. Mullruish, (Amb. 249,) says, “ All cases for relief against spoliation, come in a favourable light; but, notwithstanding this rule, that things are to be taken in odium spolia-toris, yet it ought to have no other consequence than this, that when the contents of the deed destroyed are proved, the party shall have the same benefit as' he- would, If the deed itself was produced.”' u This,” says the Chancellor, “ I lay down as a principle.” In Hunt vs. Matthews, (1 Vern. 408,) a widow, before she married the defendant, assigned over the greater part of her estate, to the value of eight hundred pounds) to trustees, for her children by the first husband. The defendant, after his marriage, having got the deed into his possession, suppressed it. The court decreed him to pay the eight hundred pounds. So in Eyton vs. Eyton (2 Vern. 380,) where a defendant having suppressed a marriage settlement, by which a remainder in trust was limited to the plaintiff’s father, &c., upon proof that the settlement came to defendant’s hand, and that he had confessed it in an answer to a former bill, though he now denied it, the Master of the Rolls decided, the plaintiff should hold and enjoy the estate; and this decree was confirmed upon appeal to'the Lord Keeper. The case of Seagrave vs. Seagrave, (13 Ves. 439,) though differing in some respects from the present, yet is a stronger case upon the principles in favor of relief in cases of spoliation or destruction of the deed. The facts in that case were, a husband and wife disagreed, and upon their agreement to live separate, the husband gave a bond to her trustee for the payment of a weekly sum, for her separate maintenance. The answer of the husband and trustee admitted that tbe bond was delivered to Twanley, the trustee, to be kept for the benefit of the plaintiff, the feme, ■and that it was burnt by him, the trustee, with the consent of the husband; the feme having gone to live in a dwelling with another man. The defence set up was, that the effect of her conduct was to deprive her of all claim. The Master of the Rolls decreed relief, and observed in judgment, “the only question is, whether this court will not interfere, to the extent that is necessary, to put the parties in the same situation in which they would have been, if the destruction of that instrument had not taken place; for I cannot hold, as a separate maintenance is the subject, that the trustee contracts no kind of duty towards the cestui que trust, but may arbitrarily determine whether the instrument shall or shall not be enforced, or whether it shall be destroyed. The wife has precisely the same right that any other cestui que trust has in any case to call upon the trustee to act, and the same right to apply to the court for such relief as the loss or destruction of the instrument may make necessary.”

It is further argued, that the marriage settlement is void by the law of Virginia, for want of proper registration. (Act of Dec. 1792, ch. 90, sec. 4.) The lex loci contrac-tus, it is said, must govern, and this act comprehends all creditors, as well those of the grantee as the grantor. I have shown already that upon principles governing a court of equity, the thing which ought to have been done, and is not done by the party whose duty it was to have done it, shall be considered as done. I shall only cite on e case more to show that the want of registration is one of those acts that a court of equity will supply the defect of upon a proper case requiring its interposition. It is the case of Anderson vs. Anderson, 2 Call. Rep. 206. Lyons, Judge, in .delivering the resolution of the court, says, “Fraud, however, is still left open for a court of equity to act upon, and if a creditor or purchaser has been guilty of a fraud, by preventing the deed from being recorded, or otherwise, equity may still relieve, as no person ought to take the advantage of his own fraud, and obtain the benefit of the statute by undue means; for the statute was intened to secure fair and'honest creditors and purchasers, and not protect the fraud and circumvention of either of them.

As to this act comprehending creditors of the grantee, when it says,'“deeds of trust, &c. shall be void as to all creditors and subsequent purchasers, unless proved and recorded,” &c. I need only observe that supposing the Messrs. Morgans are bona fide creditors of the grantee, Elam, they are not as such entitled to claim the trust property, against the provisions of the deed of trust. The case of Pierce vs. Turner, (5 Cranch’s Rep. 154,) settles and establishes the construction of that act as embracing only the creditors of and purchasers from the grantor.

From the principle established in the above case, Mrs. Elam does not require recourse to the doctrine of the case in Call’s Reports, showing, that the principles of equity apply to,'and supply the defect of registration; she does not stand in need of that protection, although well entitled to it, if she choose to stand on other ground; but meeting her adversary, the Messrs. Morgans, on legal ground, she calls upon them according to the practice of courts of equity, first to make out a sufficient case against her. Their claim is advanced under the title of creditor. Is it sustained? They have shown they are the creditors of the husband, Samuel Elam, the grantee, and were so for some time before her intermarriage with him, but they have not shown that they arc creditors of herself, the grantor, and this last character they must sustain before their claim is available against her or her property.

As purchasers they are deficient, (claiming as cestui que trust under the deed to Crutcher, their trustee,) for the want of title in the grantor, Elam. I have already shown that the legal estate vested in Hamblin, the trustee, in the marriage settlement, and that he did not re-convey to Mrs. Elam, the grantor, or convey to Mr. Elam: that the affected and partial attempt of cancellation by him, being the trustee, in cutting out his name from the deed of settlement, and redelivery or surrender of it in this mutilated state, did not, neither would its total cancellation or entire destruction by him, have the effect as supposed and intended by him. The legal estate passed by the marriage settlement, still remained in him, and the assumption of the husband, Samuel Elam, in becoming a grantor, in the deed to Crutcher, did not render him less powerless as to the property stated in it, than he was before such partial cancellation and delivery to him.

The deed of mortgage to Crutcher, the plaintiff’s trustee, is not availing to them as creditors; but another consideration is charged in their bill and relied upon to support their mortgage deed; that is, that upon the faith of the mortgage deed being executed by Samuel Elam to Crutcher, for their use, they dismissed their suit upon the attachment, thereby giving up the alleged lien upon the property, and foregoing the effect of a judgment which they say would have been obtained, and the delay of further sueing; and from these facts a consequence is supposed to arise: 1st. That the husband, Samuel Elam, had the assent of the wife to the making of the deed, &c. 2d. That he had the power by her assent, to give validity to it. To this consequence a twofold objection exists: The consideration is not good, and the inference °f assent is repelled by evidence to the contrary; and if it was given, it is wholly impotent.

By the laws of this State, the process of attachment against a person indebted, is only given in those cases where such indebted person sustains the character of an absconding debtor, or non-resident debtor; (act of 1794, ch. 1, sec. 19 and 2L — 1 Scott, 462, 463,) because, as the act says, the ordinary process of the law cannot be served in these cases. Samuel Elam was neither the one nor the other of these. S. Elam was, at the time of issuing and levying this attachment, a citizen of Tennessee; he had in moving his property, arrived at Knoxville with his family, neither absent nor absconding, but present and in person for the ordinary process of law to be served upon him. S. Elam in his answer, states the facts in these words: “the property of respondent, which came by his wife, was removing from Virginia to Tennessee, and when himself and wife had arrived in Knoxville, the complainants took out an attachment and levied upon this property. This respondent was neither absconding, nor was he a non-resident: and how his property could be seized, and the truth be sworn in obtaining the attachment, he is at a loss to conjecture; even to his wife’s wearing apparel was seized, and the property detained at great expense. This respondent was greatly harassed and most illy treated.”

Mrs. Elam in her answer, says as follows: “she was informed, and believes it to be true, that an attachment was taken out by complainants against the property of her husband, S. Elam, and levied on the property of this respondent, to wit, a wagon and team, some household goods and clothing, together with a negro man since dead. But she insists that as her husband at the time of the issuance of the said attachment, had become a citizen of this State, and did not evade the process of the law, that his property would not have been subject to an attachment.”

The attachment under these circumstances is far from being a good consideration, or any consideration but an act of demerit; and the proceeding in all its stages, repudiated by the law. The attachment was without authority by the act of assembly, and therefore a nullity.— Its service upon the trust property of Mrs. Hamblin was an illegal execution, and on this ground void. 6 Mod. 154. Its dismission and foregoing the taking a judgment which, when so obtained, would have been a void judgment, and a nullity, could not have helped the case. And the delay of further sueing amounts only to the negative merit of not pursuing the wrong, which cannot give a right.

In contemplation of law, the whole transaction amounts to a fraud upon the trustee, and the cestui que trust, in the marriage settlement.

In Hargrave’s Law Tracts, is stated a case, having, according to the answer some analogy to the present, Far’s case, Kel. 43: 1 Sid. 234. Far was found guilty of a burglary, though he entered under a writ of possession, on a judgment against the casual ejector, by default in an ejectment. It being proved that he had obtained it by false swearing to the having given notice to the tenant in possession, and that then he had entered and robbed the house of jewels and other valuable property. It is well observed by Lord Ch. J. Kelrnge, that Fir making use of the law to get possession, was so far frcfti*excusing him, that it heightened his offence.

There is no law, then, to support this mortgage, on the ground of consideration moving on the part of the complainants to the mortgagor, and whether it is on good consideration or not, will be examined in equity, upon this bill and cross bill. See2 Eq. Cas. Ab. 604: PL 34. The deed being executed without the privity or knowledge of complainants, does not change the aspect of the case, for by accepting it, and claiming under it afterwards, they have adopted it under all its circumstances, for better for worse. Neither is it to be forgotten that this deed was after the levy of the attachment, during its penden-cy and before its dismission; the force of which, though Jess perhaps than legal duress, may have contributed at least in part to its existence; in which case equity may give relief. Thus, in 1 Eq. Ab. 170, PI. 3, it is there laid down, “if a bond be entered into by force and terror, not so as to make it duress, the court may relieve against it, at least not suffer it to be carried into execution in a court of equity.”

What is the principle of this case, and is it applicable to the case before this court? It is laid down by the vice chancellor Plumer, in the case of Wood vs. Abrey; he says, “if a man who meets his purchaser on equal terms, negligently sells his estate at an under value, he has no title to relief in equity; but a court of equity will enquire whether the parties really did meet on equal terms, and if.it is found the vendee was in distressed circumstances, and that advantage was taken of that distress, it will avoid the contract. ” “In the present case,” says the vice chancellor, “the distress of the vendors is beyond all doubt.” 3 Madd. Rep. 423. So I think it may be said here. S. Elam, the mortgagor, had a suit depending against him, a judgment threatened with confidence to be obtained, and a sale of his wife’s property under it. Can it be doubted that he was £ot urgecfiro the execution of the mortgage by the pressurerif his situation, which situation was imposed upon him by the wrongful acts of the complainants ?

The remaining ground taken in this case to sustain the complainant’s bill, and authorizé the relief and decree thereby prayed, is, that the letter of Mrs. Elam to the trustee, Hamblin, requesting the destruction or surrender of the marriage settlementl^mported a contract between her and her husband, to makl|to him a gift of all her property; that in equity she has an absolute power of dispo-osition, which may be manifested by any act that sufficiently indicates the intention, as by deed, bond, parol promise, or parol gift; and that she is not bound by the prescribed form of the disposition in the deed or settlement. The question has been before the highest tribunals of two of the States of this Union, and in them has produced different results. And such is the diversity of opinion on this much litigated and controverted point, that unanimity of the members composing the tribunals, has not prevailed, but the decision in both rests upon majorities only.

In the State of New-York, Spencer, Ch. J. and Platt, J. who delivered their opinions seriatim, were in favor of -the enlarged powers of the feme covert over her separate estate; a majority of the court were of the same opinion.

In South Carolina, the majority were in favor of the restricted powers of a feme covert over her separate estate. Dessausure and Thompson, chancellor, dissenting.

The court of chancery of the State of New-York, in its opinion, coincides with the decision in South Carolina. The chancellor,. Kent, in a most able and learned review of all the cases on the subject, has examined the principle upon which the general doctrine rests; stated the application of these principles to the cases as they arose in the order of time, marking the changes introduced by the diversity of decision, comparing the principle upon which each case professed to turn, with the general principles, noting their accordance or disagreement with them, regretting the vascillating of the cases, jand the fluctuation of decision that has existed, and closing his very able, laborious and lucid ..review, with the following result, (though he observes in opposition partly to the later cases,) “that instead of holding that a wife is a feme sole, to all intents and purposes as to her separate property, she ought only to be deemed a feme sole sub modo, or to the extent of the power clearly given by the settlement; that instead of maintaining she has an absolute power of disposition, unless specially restrained by the instrument, the converse of the proposition would be more correct, that she has no power but ,. . , , . , . r what is specially given, and to be exercised m the mode prescribed, if any such there be. Her incapacity is general, and the exception is to be taken strictly, and to be shown in every case, because it is against the general policy and immemorial doctrine of the law.” See 3 John. Ch. Cas. 113; and see further in page 114, where he says, the doctrine runs through all the cases, that the intention of the settlement is to govern, and that it must be collected from the terms of the instrument. Thus we see the opinion of the most distinguished, able and learned chancellors are in direct opposition to each other, as to the power a feme covert has over her separate estate. I must confess, that after the best examination that my very slender abilities permit, if it were necessai^.-. by the facts of the present case, to express an opinion decisively on this much controvered subject, I at present would say, that upon the principles on which the doctrine is professed to be founded, and even upon the principle assigned in the cases favoring the enlarged powers of the feme covert, as the ground of such determination, according to my understanding of them, but above all, from the very moving cause and design of a settlement upon a feme covert, her restricted powers as laid down in the settlement itself, ought, according to the plain intent therein I and thereby expressed, to give the rule and measure its I extent, ^rejecting subtilties of wire drawn, though able, \ disquisition, and the entanglements of disputation, en-\quiry and investigation^

But it is not necessary for me, upon the facts of the present case, to express a decisive opinion upon the two conflicting and directly opposed judgments of the court of chancery of the State of New-York, and the court for the correction of errors of the same State, both being courts of the highest respectability, and filled with the ablest men, because the latter decision, with which at present I am not inclined to concur, upon the general question, exempts the case before this court, expressly x ' r . ' J by the speech delivered in the judgment. Spencer, Ch. J. says, I am entirely satisfied, that the established rule in equity is, that where a /erne covert having separate property, enters into an agreement, and sufficiently indicates her intention to part with her separate estate where there is no fraud, or unfair advantage taken, a court of equity will apply it to the satisfaction of such an engagement. From this speech in judgment, it follows, that let the powers of a feme covert over her separate estate be as extensive as they may, the exercise of these powers are all palsied, and rendered nought by fraud, or an unfair advantage taken of her.

My opinion is, that fraud exists in the present case, and that an unfair advantage hath been taken of Mrs. Elam. It will he necessary to advert briefly to the marriage settlement to see her rights and her powers, and to the testimony, for the fraud and unfair advantage that has been taken of her. By the marriage settlement, executed duly in the presence of three subscribing witnesses and delivered, Mrs. Elam gives to Hamblin, the trustee, with the assent of Samuel Elam, her estate real and personal, to have and to hold to him, his heirs, executors, administrators, and assigns, in trust for the uses and purposes therein after mentioned, and none other, to wit, to her own use till the marriage, and afterwards to hold the said estate in trust, to suffer and permit her husband and herself to have and enjoy the use, advantages and profits thereof, for their support and maintenance, during their joint lives; using the said stocks and their increase as may be proper and usual with persons owning such property, and so as to keep up a sufficiency for the ordinary purposes of' such plantations. And if the husband should die first, then to her sole use as her absolute estate; and if she shall die first, to such person as she, by writing, in the -nature of a last will may appoint, executed before two witnesses, and in default of such ap~ pointment, to the next of kin, or right heirs of said , , , , , , , _ Elizabeth; with a proviso, that it shall be lawful for said William B. Hamblin, upon the request of the said Elizabeth, in writing, to make sale of any part of the said estate, and to invest the proceeds in any other property which maybe expedient and proper for the parties, or for the more comfortable support of the said Samuel and Elizabeth during tlieir joint lives. Now it is apparent, that the whole object of the marriage settlement, is to preserve the substance of the capital untouched, except in one instance, and then the proceeds of the part inter-meddled with, is still to be forthcoming as capital, for it is to be invested in other property which may be expedient and proper for the parties.

The maintenance and' support of the cestui que trust, is to be derived from the rents, labour, issues and profits, as produced of and from the specific capital enumerated in the deed. The conversion of any part of which, is not to be a conversion in money, for the purposes of expenditure and consumption, but a conversion by sale and reinvestment into other specific property, whether of the same or a different kind. This is the plain meaning of the power that authorizes a sale by him, of any part of the specific capital recited in the deed, upon request of the said Elizabeth, in writing. That this is the true and correct meaning of the settlement, is unquestionable, from the final disposition of her estate after her husband’s and. her own decease. She considers it at these respective periods a continuing and subsisting estate, to be operated upon under the powers and provisions of the deed of settlement. For after the death of her husband, it is to be held for her sole use, as her absolute estate; and after her own death, if she shall first die, to such persons as she, by writing in nature of a last will, executed before two witnesses, shall appoint; and in default of such appointment, to her next of kin, or right heirs. Now this last disposition would be perfectly idle, if it was held to be the intent of the settler to give any other or further power over the specific capital settled, than a sale for the purpose of a reinvestment of the proceeds of such sale in other property, which may be expedient and proper for the parties.

Such being the meaning and purpose of the marriage settlement, can it prima facie, be supposed, that an instrument made on the eve of so important a change of situation, requiring what it no doubt had, the greatest deliberation, its provisions planned and settled with caution, being prepared by counsel, and intended to secure her a support against the changes incident to the new state into which she was about to enter, and the unpropitious con-tingences which might happen during its continuance; can it be supposed, I say, that in the short space of two months after her marriage, she would cast away this shield and deprive herself of its protection, and be considered at the same time, as acting under the dictates of her judgment, not operated on by fraud, nor influenced by undue means in taking an unfair advantage of her.

The weight of these circumstances in establishing fraud, was foreseen in the argument, and by anticipation their efficacy sought to be prevented, and it was insisted that fraud must be proved, not presumed. It is admitted, this position as a doctrine is to be found in many books, and that there may be some cases susceptible of its right application; but that facts and circumstances do not show fraud, is a position not to be supported. The opposite is the constant practice in equity. See Jeremy, 396 — 7: 2 Ves. 125. The position that fraud must be proved, not presumed, (2 Ves. 155,) is at best a position of dubious accuracy; but, passing this and allowing it the greatest field of its operation, it never got farther than being a rule at law. Equity never recognized it, and the later and better opinions at law, have altogether destroyed its essence, and considered fraud as being a question of law, and not a question of fact. Thus Lord Ellenborough, m delivering the very elaborate mdgment of the court of . ° f “ . ,, m , K. R. m the case of Otley vs. Manning, says, “ JJraua and covin are always questions of law. It is the judgment of law upon facts and intents.”

In Butcher vs. Butcher, (1 Ves. and B. 98, 99,) Lord Chancellor Eldon says, “The clear doctrine of Lord Hardwicke and all his predecessors was, that there were many instances of fraud that would affect instruments in equity of which the law could not take notice. Fraud ■may appear by any instrument in writing whatever, as well as by parol, if there is that in it which in construction of law amounts to a fraud in the legal sense of that term, although that term may not be used in such instrument, or in such parol proof. Fraud also may appear from the records to have taken place in the proceedings in suits, or in the transactions originating them, both in the courts of law and in equity.” There are many cases in the books showing this, both ancient and modern. I shall cite one of each and dismiss the point. In Wembish vs. Talbois, (Plowden’s Rep. 38,) an action of trespass, (4th year of Ed. 6,) the replication showed forth, that Wm. Talbois brought a formedon in descender against Elizabeth Talbois, now defendant, and recovered the first day by nient dedire, &c. and that the feme tenant was not amerced, because she came the first day by summons, &c. To this the defendant demurred; and it was held, that these circumstances of the woman defendant coming at the first day, and therefore she was not amerced, and also she was not essoigned, nor had the view, and she lost the other advantages which the law gave her, by which act there appears a voluntary assent in her, and covin apparent upon the record. In the case of Knatchbull vs. Kissane, in equity, decided in 1818, in the house of Lords, (5 Dow. 408,) Lord Eldon, in his speech in judgment, says, Then another question is, whether, without using the word fraud, which is often misunderstood when lawyers use it, this is a case that can be sustained. It was contended by my learned friend at the bar, (Mr. Wetherell,) that there was not a sufficient charge of fraud to get rid of the lease on that ground. But I think he will agree with me, that if there is that in the bill, which in construction of law amounts to a fraud in the legal sense of that term, it is not necessary that the plaintiff should apply that term to it in the bill.”

There are other facts and circumstances in this case, showing fraud and an unfair advantage taken of Mrs. Elam. She states, in her answer to the complainant’s bill, that a few months after the marriage took effect, the said Samuel represented to her, that he owned a large real property in Nashville, which was of a very profitable and desirable description, to wit, property known by the name of the Bell tavern property; and that if he could get about ten thousand three hundred dollars of United States’ bank stock, and dispose of the same for money, that he could very nearly disencumber himself. The bank stock was secured by the deed of trust to William B. Hamblin, and the said Samuel promised to make a provision out of the Bell tavern, or other property, to the respondent, if she would agree that he might use the bank stock secured to her by the marriage contract. After much persuasion this respondent agreed that Mr. Hamblin might let her husband have the bank stock. Mr. Hamblin was applied to, but refused to transfer the stock to Major Elam,, or do any thing in the business, unless he was entirely discharged from his situation of trustee. This respondent was then much pressed and persuaded by her husband, to consent that the marriage articles should be surrendered up by said Hamblin to the said Samuel, assuring her that for any property of hers she should be-made perfectly safe by a deed of trust being made to her of the Bell tavern, and that without any difficulty the said Samuel could get through his embarrassments in Tennessee, and that her said husband believed all this she had no doubt. After much persuasion, and with great reluctance, she said to William B. Hamblin that he might give up the marriage contract to Major Elam; accordingly Mr. Hamblin cut his name from the contract, leaving it entire in other respects, and gave it up to her husband, who disposed of the bank stock, &e. &c.

These facts exhibit as strong a case of fraud- as can well be imagined; I may say, as gross a case of fraud as can be found in any book, and more expecially so when we find it exerted against her by her husband, whose duty it was to succour, to protect, and to preserve her interest, instead of destroying it. A court of equity cannot see less than what every individual of observation sees and knows, that a feme covert is' more exposed to the acts, solicitations, artifices, and undue influence which a husband has over her by force of his dominion and power, in consequence of the marital relation, than one individual has over another, not standing in that or some other relation, giving also an easy ascendancy. A .false representation, even at law, when a person is about to act upon the faith of it, is a fraud. Thus Lord Kenyon, in the case of Haycraft vs. Creary, (2 East’s Rep. 103,) says, “ It is said that I imputed no fraud to this defendant at the trial. It-is true that I used no hard words, because the case did not call for them. It was enough to state that the case rested upon this, that the defendant affirmed that to be true, within his own knowledge, which he did not know to be true. This is fraudulent. It is always considered as a constructive fraud, when a party knows the truth and conceals it; and such constructive fraud always makes the party liable.” 2 Br. C. C. 389, 390. The case before this court is much stronger; for Mr. Elam not only affirmed that he owned a large real property in Nashville, which was of a very profitable and desirable description, the Bell tavern property, and that if she would consent for Hamblin to surrender the marriage settlement, that for any property of hers she should be made perfectly safe, by a deed of trust to be made to her of this same Bell tavern; whereas, in truth and in fact, instead of owning a large real property, the Bell tavern, and that by a deed of trust of which property she should be made perfectly safe for any property of hers, he owned no available property in the Bell tavern, it being previously encumbered beyond its value; and as to her being made safe thereby, the affirmation was nothing ¿ess than was a mere delusive falsity. If such is the judgment of a court of law upon a misrepresentation, animadverting upon it to the extent of the injury thereby sustained, (as in the case above cited,) it cannot be supposed that a court of equity will view it.in a more favourable light, and accordingly it is laid down generally, as a broad principle, that “ fraud is regarded in courts of justice as an odious thing,” (Jeremy, 383,) embracing courts both of law and equity; and in the same book (p. 385,) it is laid down, “ that it is obviously a principle of moral conduct, that a man should be just and candid in his dealings; and therefore, where on the contrary, one seeks by misrepresentation, or even by improper concealment of facts, in the course of a transaction to mislead the judgment of another to his prejudice, this court will generally interfere;” (the author is here treating of the jurisdiction in equity.) The two means of injury here adverted to are, in more technical language, denominated the suggestio falsi, and suppressio veri. To the same is another late writer, (Newland, p. 252;) he says, “Equity sets aside a contract upon the ground of fraud, against which it is the province of that court to relieve in all its different species. Fraud, as the comprehensive mind of Lord Hardwicke has informed us, may be divided into four distinct species: first, actual fraud, arising from facts and circumstances of imposture, &c. This comprises most instances of fraud, which arise from a suggestion of falsehood, or from a suppression of the truth.” These principles of equity embrace precisely the present case; the existence of either of them constitutes a fraud against which equity will give relief. Both however,exist in the present case. Samuel Elam represented that he had a large property in Nashville, and that by a deed of trust he could secure her, Mrs. Elam, for any property of hers. Here was the sug-gestio falsi, or suggestion of falsehood; and the concealing from her that this property was encumbered beyond its value, and not available to the amount of one cent, was the suppressio veri, or suppression of the truth.

These principles are not the deduction alone from the spirit of modern cases, springing from the improved state of society, and the advancement of the moral principle, as its necessary and concomitant attendant, but they are ancient heads of equity, found in the earliest equity reporters, and cherished by succeeding Chancellors downwards to the present time. Thus in the case of Jarvis et uxor vs. Duke, (1 Vern. 19, anno 1681,) it was said by the Lord Chancellor, “that it is the constant rule, where there is either suppressio veri or suggestio falsi, that the release shall be avoided. So in the case of Broderick vs. Broderick, (1 P. Wms. 240, anno 1713,) Lord Chancellor Harcourt says, ‘‘Either suppressio veri or suggestio falsi is a good reason to set aside any release or conveyance. Now to recite in a deed that the will was duly executed, when it was not, is suggestio falsi, and to conceal from the heir that the will was not duly executed, is suppressio veri, so that both circumstances concur.” The same doctrine was held by Lord Chancellor Macclesfield in the case of Cann vs. Cann, (anno 1721, 1 P Wms. 727.) So in Clermont vs. Tusburgh, (anno 1819, 1 Jac. and Walker, 120,) a case of misrepresentation, the Master of the Rolls, Sir Thomas Plummer, says, “If it be so obtained, to wit, by misrepresentation, the contract is void, both at law and in equity: where an agreement has been obtained by fraud, is the effect, to alter it partially, to cut it down or modify it only? No: it vitiates it in toto, and the party who has been drawn in is totally ab- ¶ 3 r i i* • i} solved irom obligation.

So in Neville vs. Wilkinson, (1 Br. C. C. 546, anno 1782,) Chancellor Thurlow says, “If any man, upon a treaty for any contract, will make a false representation, by means of which he puts the person bargaining under a mistake upon the terms of bargain, it is a fraud; it misleads the parties contracting on the subject of the contract. ’'

From these authorities it follows, that if there had been in the present case, a conveyance to the husband of the property of Mrs. Elam, executed by the trustee Ham-blin, and purporting as authority for so doing, a request of Mrs. Elam in writing, as stated in the marriage settlement; and supposing the power in the marriage settlement had, instead of a mere power to alter or change the kind, or nature of the principal, into other property as principal, been a full power to make over and transfer the property to her husband, such transfer must have been deemed void and of no avail, from the misrepresentation, deception and fraud practised in obtaining it.

I am therefore of opinion, that the decree of the Chancellor must be affirmed, with the exception of those parts that embraced the land lying in the State of Virginia, which being beyond the limits of this State, is not within the jurisdiction of this court to be acted upon by its decree, immediately affecting it, but can only be reached immediately by and through those defendants that are before this court. See Jeremy 556-7, and notes (r,) (s,) in which case, the court has full power to act upon them personally, with respect to the subject of the suit, as the ends of justice may require, and with this view, to order them to take or omit to take, any steps either in pais, or in a court of justice, in this State, or in any other State. See 5 Mad. Rep. 307: 1 Ver. 75, 135, 419: 3 Ves. 182: 3 Atkyns, 529. The decrees, therefore, of the Chancellor will be so far corrected, and so reformed, will be the decrees of this court.

Green, J.

In- this cause three principal grounds are assumed in opposition to the claim- of Mrs. Elam to the property in controversy.

1. It is argued that the marriage'settlement is cancel-led by the act of the trustee-, Hamblin, cutting out his name as signed thereto in the execution of the deed, and that the property conveyed thereby revested in Mrs. Elam-, and consequently simultaneously in her husband-

It is true that Hamblin, the trustee, did cut off from the deed his own signature and seal, and then delivered it to Mr. Elam. But this mutilation or cancelment of the deed could not deprive Mrs. Elam of the benefits intended to be secured by it. The conveyance had been made by her to Hamblin, before the marriage, and had vested in him as her trustee, the legal estate in the property conveyed, and in her a right to its enjoyment and use. The estate actually passed by the deed, and was vested by it in the parties; the cancelling the deed afterwards could not and did not divest it. 4 Cruise’s Dig. 497, sec. 15: 1 Inst. 225, note 136: 2 H. Bl. 259.

2. But it is further argued, that Mrs: Elam had all the rights of a feme sole over her separate estate, secured by the deed; that she had full power to dispose of it as she pleased, and consequently to give it to her husband; and that the cancelling the* deed with her consent was sufficient to vest in her husband the personal property secured by it.

This leads us to the consideration of a question of great importance to society, and one upon which the ablest chancellors have entertained different- opinions. The weight of authority from the English Books, is in favor of the exercise by a married woman having a separate estate of all the powers of a feme sole in the management and disposition of that estate. In the American courts, there has been great diversity of opinion. I shall not attempt a review of the cases where the point has been adjudicated, but shall content myself with referring to the case of Jacques vs. M. E. Church, (3 John. Ch. Rep. 113, 114,) where Chancellor Kent has collected and reviewed, in an able opinion, all the cases on this subject. I regard this question as being unsettled in this country, and that this court is under no obligation, from a concurrent course of legal adjudication, to sacrifice principle to precedent. All the cases agree, that it is competent to "the parties to tie up an estate for the benefit of a married woman, placing it beyond the control of the husband, and devotipg the proceeds to the separate use of the wife.— Such marriage settlements have been uniformly supported by the courts. It seems to-me, that if supported at all, they ought to be supported according to their plain sense, and the manifest intention of the grantor. It is af mockery to talk about supporting a conveyance, and atl the same time give it such a construction as will allow al disposition to be made of the estate, which it was the man-* ifest intention of the grantor to guard against.

Upon principle, therefore, the courts ought to give such effect to a deed of marriage settlement, as the person making the grant intended it should have; which intention is to be collected from the whole scope of the instrument. But it is said by some of those who contend for a latitudinous construction of these conveyances, that it is for the interest of society that the common law rule that the husband becomes owner of all the wife’s personal estate, should prevail; and that therefore, it is best that the rule of construction should be adopted, which will enable the husband by the consent of the wife, to possess himself of her estate; and this, too, contrary to the manifest intention of the friend who may have settled it on her. This argument is as defective in morals, as it is in sound legal principle. It defeats the prudent foresight of the settler, by enabling the husband and wife to make a disposition of the estate which the deed was especially intended to prevent; and at the same time it holds out an inducement of the strongest character for the husband to use undue means to obtain for himself his wife’s estate.

Those who have the least acquaintance with the relations which exist between husband and wife, cannot fail •to know, that he will be able, almost universally, to obtain from her every thing she has power to bestow. Undue means will be resorted to, and improper influences will be exerted upon the wife, and this in a manner which can scarcely ever be detected. The influences which are used improperly, to control the conduct of a wife in relation to her property, are most apt to come in the guise of extreme fondness. The exalted and ;generous sentiment of love, is counterfeited by the husband, under the influence of his cupidity for his wife’s estate. Surely a just regard to the morals of society, and an honest fulfilment of the intentions of the grantor, alike demand that the powers of a married woman over her separate estate, shall not extend beyond the plain meaning of the deed creating the estate. For the contrary doctrine does but invite men to commit frauds on their wives ;£an invitation to which husbands generally would not be insensibly It is but necessary to put' on the appearance of extreme fondness for the wife, with professions of great concern for her interests, a few truths suppressed, and falsehoods suggested in relation to his own estate and pecuniary condition, and she is ready, in all the ardor oí confiding love, to throw herself and all she has into the arms of her husband, or in the language of Mrs. Elam, “to blend her fate with-his.”

As by the common law rule, the legal existence of the wife is suspended during the coverture, and she is rendered incapable of making any contract, it would seem to follow that when separate rights and distinct powers are conferred on her by a deed of marriage settlement, that such deed should be so construed as to save her none of , , - ,71, 7 the powers oí a jeme sole, other than tiiose expres_siy conferred by it.

Upon the whole, I conclude that the farthest thef court can go upon principle, is to ascertain by a fair construction of the deed, what was the intention of the grantor, and to cause that intention to be carried into effect. 2 Kent’s Com. 139. Upon this principle I decided the case of Brandy vs. Brantly, when I sat on the chancery bench, and the subsequent consideration I have given the subject, has but tended to confirm me in the correctness of the opinion I then entertained.

This leads us to examine the terms of this deed, and to ascertain the intention with which it was executed.

After conveying the estate to Hamblin, the deed stipulates that he is to hold it in trust, “for the uses and purposes hereinafter mentioned, and none other; that is to say, to suffer and permit the said Elizabeth to hold the same as her absolute estate, until the solemnization of the said intended marriage; and from and after the solemnization thereof, then to hold said estate in trust; to suffer and permit the said Samuel and Elizabeth to have and enjoy the use, advantage and profits thereof, for their support and maintenance during their joint livrc;, using the said stocks and their increase, as may be proper and usual with persons owning such property, and so as to keep up a sufficiency for the ordinary purposes of such plantations.” These stipulations, limiting as they do the disposition of the property for their “maintenance and support during their joint lives,” exclude the disposition of it for any other purpose. But even for the attainment of this object, the principal fund was not to be lessened or impaired, for the deed stipulates that this maintenance and support was to be derived from the use and profits of the estate. If any thing were wanting to confirm this conclusion, the subsequent provision of the deed would placeitbeyond doubt. It is stipulated, that, “after the ^eat^ ^ie sa^ Elam, should he die first, then the estate should go to the sole use of the said Elizabeth, as her absolute estate; and after the death of the said Elizabeth, should she first die, to such persons as she by writing in the nature of a last will, executed before two witnesses, shall appoint to receive the same; and in default of such appointment, then to the next of kin or right heirs of her, the said Elizabeth.”

These clauses plainly show, that it was contemplated that the estate was not to be disposed of, so as to exhaust or lessen the principal fund; but that it should subsist during the coverture, and afterwards be disposed of in the manner specified in the deed. Why was a particular mode of disposition, “by writing in the nature of a last will,” designated by the deed, if it was intended that Mrs. Elam should have the power to dispose of it in any other manner she might select? and why were they restricted to the use of the profits of the estate, for their support and maintenance, if it were intended that the whole fund might be appropriated for any other purpose? It seems irresistible to me, that it was intended to restrict the use of the estate to the taking the profits, and the disposition of it to an appointment “by writing in the nature of a last will.” This being the intention of Mrs. Elam in making the deed, I am of opinion that she had no power after she was married to dispose of her estate for other purposes or in a different mode than the stipulations of the deed expressly warrant.

The stipulation in the proviso to the deed, that the trustee on the request of Mrs. Elam in writing, should be “authorized to make sale of any part of the estate, and invest the proceeds in other property,” &c. does not affect the construction I have given to the former part of the deed. This provision only contemplated a change of the estate in form, without affecting it in substance, without reducing it in amount. It follows from this view of the question, that any gift of Mrs. Elam to her husband, or directions to Hamblin, the trustee, did not change, or m the least degree affect her rights as hxed and settled by the deed; because she had no power to make such gift or to authorize Hamblin to cancel the deed.

S. But it is insisted, that the deed in this case not having been recorded as required by the act of Virginia, 1792, ch. 90, sec. 4, (Rev. Laws, 1814, p. 219,) it is void as to the creditors of Elam.

This question came before the supreme court of the United States in the case of Pierce vs. Turner, (5 Cranch,) upon the construction of this statute of conveyances of Virginia, and it was decided, that an ante nuptial marriage settlement of the wife’s property, if not duly recorded, is void against the creditors of the wife only, but not against the creditors of the husband; and that the act applies only to the creditors of the grantor. When this case was argued at the last term of this court, I was not willing to yield the opinion I entertained of the true construction of this statute, to the authority of the case of Pierce vs. Turner. The statute says, that “all deeds of settlement upon marriage, shall be void as to all creditors and subsequent purchasers, unless they be recorded,” &e. The letter of this statute embraces the creditors of the husband; protection to them, against such secret unregistered settlements is within the policy of the law; I had therefore thought, that the intent and effect of the statute was to protect the creditors of the husband as well as the wife.

Since the last term of the court, I have examined the case of Laud vs. Jeffries, (5 Rand. Rep. 211,) where I find the court of appeals of Virginia approve the decision in the case of Pierce vs. Turner, and (one judge only dissenting) give the same construction to the statute under consideration. The authority of these two cases is too imposing for me to resist. I shall therefore concur in the construction they have given to this statute; not because I am convinced of its correctness, but because I . , , , ,. . , , reel that I ought to distrust my own judgment, and yield to the concurrent high authorities of the supreme court of the United States and of the Slate whose statute we are considering.

The decrees in these several cases will therefore be affirmed, with the modification suggested in judge Whyte’s opinion,

Catron, Ch. J.

Although I have taken no part in the decision in this cause, yet my brother judges desire my concurrence on one point, to wit, as to the extent of the jpower of a feme covert over property settled to her sep-larate use, and for her separate maintenance.

What the English doctrine is upon the subject, it is difficult to ascertain. The decisions are so confused and repugnant, that Lord Eldon’s complaint in Sperling vs. Rochfort, (8 Ves.) is most true. He says, “upon all those cases together it is utterly impossible to know the result.” There are two classes of cases which lay down different rules. The one, that a married woman with separate property has no power over it, but that which is conferred on her by the settlement. Lord Strange vs. Smith, Amb: Socket vs. Wray, 4 Bro: Whistler vs. Newman, 4 Ves: Mores vs. Huish, 5 Ves: Harvey vs. Blakeman, 9 Ves: Francis vs. Wizzle, 1 Madd. Rep. 6. The other class lays down the rule, that a feme covert with separate property, is to all intents a feme sole, except so far as she is restrained by the instrument under which she claims. Pybus vs. Smith, 1 Ves: Fettiplace vs. Gorges, 3 Bro: With vs. Dawkins, 12 Ves: Brown vs. Lake, 14 Ves: Essex vs. Atkins, 14 Ves. the case cited from New York by Judge Green, &c. Nothing has been adjudged in this State upon the subject, save in the chancery court in Brantley vs. Brantley. That cause was argued in the Supreme Court with superior ability, and advised upon. I examined it well during the year it was before the court, having the aid of a written argument by Judge Clayton, which is by far the most learned examination of the subject I have met with, and from which this opinion is principally extracted. I found the reported cases of little use, and calculated rather to disturb than confirm a well settled principle of the common law, that a married woman has no property or powers. But equity permits her to be exempt from this rule, so far as she stipulates for exemption; yet, the court can give her no powers beyond those given by the settlement. She acts substantially as an attorney in fact in such case, as she well may in any other. In either she must pursue the express authority; all beyond it is void.

Judge Whyte and myself heard Brantley vs. Brantley, and concurred in the foregoing result in conformity to the Chancellor’s decree and Judge Clayton’s argument; but learning the cause was compromised, our opinion was not reduced to writing. It went off on the compromise.

Peck, J.

was of opinion that the deed of marriage settlement from Mrs. Stokes to Hamblin, ivas void as to the creditors of Samuel Elam, the husband, for want of registration, and that the decree of the Chancellor ought to be reversed.

Judgment affirmed. 
      
       See Judge Platt’s opinion, in Jacques vs. M. E. Church, 17 Johns. Rep.
     