
    John Baynton, et uxor, vs. Walter H. Finnall.
    By the common law, the husband is entitled during coverture, to the usufruct of the wife’s real estate, and a lease of her land by him is good during coverture ; nor is the common law rule altered by the statute of February 15, 1839, entitled “ An act for the protection and preservation of the rights of married women.”
    F., a judgment creditor of J. B., garnisheed B.; who answered, that he owed J. B,, or his wife, for the lease of a house, which house, it appeared in proof, was the sole property of the wife of J. B.; Held, that the creditor of J. B. was entitled to the amount due by B. for the rent.
    S. died, leaving several heirs, and a considerable estate largely indebted; before the estate was settled up, it was agreed between B., one of the heirs, and the others, that B. should take a particular house and lot, and pay a certain debt of the estate, for his portion of the property, and B. was put in possession of the house and lot, and his creditors attached the rent; Held, that any decision of the court on the attachment would not preclude the creditors of S.’s estate from proceeding against the property.
    "Where the jury have, according to the law and evidence, returned a correct verdict, and the case is brought to the high court of errors and appeals for revision, solely upon a motion for a new trial overruled, that court will not disturb the verdict, even though the court below may have erroneously instructed the jury.
    In error, from the circuit court of Adams county.
    Walter H. Finnall, at the May term, 1841, of the circuit court of Adams county, obtained a judgment against John Baynton, and others, for $1,521, and made oath that the defendants therein had no visible property upon which a levy could be made to satisfy the judgment. Whereupon he suggested that Ricé Ballard was indebted to the defendant, John Baynton, and a writ of garnishment issued accordingly.
    Ballard answered, that in January, 1840, he rented a house and lot in Natchez of Baynton, for one year, for $800; that when he rented it Baynton told him it was his wife’s property; that he had paid $220, and still owed the remainder of the year’s rent, $580, which he would have paid over either to Mr. or Mrs. Baynton, whichever had called for it; and that he was ready to pay it to whoever the court directed.
    
      Upon this answer Mr. and Mrs. Baynton interpleaded, that the debt due by Ballard belonged to Mrs. Baynton, and was not liable for the debts of Mr. Baynton, upon which issue was taken; which was submitted to a jury, who found that the plaintiff in the execution was entitled to the money.
    Baynton and wife moved for a new trial, 1. Because the verdict was contrary to law and evidence ; 2. Because the court erred in instructing the jury, that the interpleader held by descent, and not by purchase; 3. For other erroneous instructions. This motion was overruled, and thereupon Mrs. Baynton filed a bill of exceptions.
    From this bill of exceptions it appeared, that on the 23d of December, 1839, John Baynton proposed to the heirs of Joseph Sessions, deceased, that he would receive, as the share in full of his. wife’s inheritance in the said Joseph Sessions’s estate, the house and lot in controversy, and would also pay, in addition, the sum of $3662 SO; that the heirs acceded to the proposition, and entered into an obligation to indemnify Baynton and his wife from all demands, of whatever nature, that might be brought against the estate of Joseph Sessions, deceased. The other heirs then made a deed, on the 7th of January, 1840, to Mrs. Baynton, of the property in controversy.
    It was admitted that Joseph Sessions died in January, or February, 1838; that Cornelia Baynton is a daughter, and one of the heirs at law of said Joseph Sessions; that there are seven heirs at law, besides Mrs. Baynton; that Joseph Sessions’s estate was much involved, was in the hands of an administrator, and that there had never been any distribution among the heirs, and no delivery of the property belonging to the estate to any of the heirs, except the part'of the real estate conveyed by the other heirs to Mrs. Baynton; that the premises in controversy constituted a part of the real estate of said Joseph Sessions. This was all the evidence .before the jury, except the answer of Ballard, which was read in evidence to them.
    On this state of facts, the court instructed the jury on the part of Finnall, —
    1. That immediately on the death of the father, the real estate vests in the heirs.
    
      2. That if Mrs. Baynton was entitled, as an heir of the late Joseph Sessions, to a portion of his real estate, upon his death, previous to the act of the legislature entitled “ an act for the protection and preservation of the rights of married women,” passed February, 1839, and by agreement between her and her husband, and the other heirs of Joseph Sessions, her portion was specifically set off to her the right of her husband, Mr. Baynton, vested in the same manner, as if allotted previous to said act of 1S39.
    3. That the heirs of Joseph Sessions conveyed to Mrs. Baynton the portion of said Sessions’s property, to Which she was entitled as an heir of his, does not amount to a purchase of such portion in law.
    These instructions were excepted to, and the exceptions were overruled, and the verdict given as above stated.
    The bill of exceptions was taken to the refusal to grant a new trial, and was signed by the counsel of both parties, by consent, waiving the certificate of the presiding judge.
    The writ of error is prosecuted to reverse this judgment.
    
      Montgomery and Boyd, for plaintiffs in error.
    We think it must be apparent, without argument, that the opinions of the court below were erroneous, to the full extent complained of by the interpleader.
    The property in question descends to the heirs of Sessions in 1838. His estate, at the time of the trial, is admitted to have been “much involved,” and still undistributed in the hands of his administrator. The conveyance to Mrs. Baynton, by the other heirs, in January, 1840, could confer no other right, so far as Baynton, the husband, was concerned, than that which existed in favor of the heirs, after the claims of creditors of the estate should be satisfied. It would not be contended that a judgment against one of these heirs, before a final settlement of the estate, would bind his unascertained and undecided interest in the estate, in preference to judgments or claims against the estate itself. The fact of an agreement among the heirs, does not alter the question of right, or rather it does not ascertain what their ultimate rights will be. The deed to Mrs. Baynton was but a quitclaim, and the agreement on the part of the heirs, to pay all the debts of the estate, did not withdraw the estate from the ordinary course of distribution, but only gave her a remedy against the co-heirs, in case they should not observe their covenants. This money, then, accruing from the rents of the property in question, did not belong to Baynton, and the judgment to that effect was erroneous.
    The other points are sufficiently stated in the exceptions to the particular instructions given by the court, which we consider erroneous, even if the ultimate decision should coincide with the opinion of the court.
    
      Quitman and McMurran, for defendant in error.
    The questions for the consideration of the court, in this case, arise upon the decision of the court below, in overruling the motion for a new trial, made by the plaintiffs in error. The bill of exceptions taken upon the overruling the motion, embodies all the testimony, as well as the instructions given by the court in charge to the jury, as requested by defendant’s counsel.
    Upon the proof in the case, we insist, the verdict of the jury ought not to be disturbed. And we will remark here, that as the opposite party have not chosen to rely upon any exceptions upon the trial of 'the cause, but upon their motion for a new trial, the court will not be bound to take that strict and technical view of the points as they would have done, had the party taken their exceptions in the progress of the trial. Upon a motion for a new trial, the court will look rather at the merits of the case, and if they find that the .verdict is such as it ought to be, in justice, upon the testimony, they will let it stand, although they might think that, in the progress of the trial, some technical errors may have been committed by the court. 1 Peters R. 170, 183. 4 D. & E. 468. 2 D. & E. 4.
    Independently of the statute of this state, passed by the legislature 15th February, 1839, to be found on p. 72, 73, ofthe statute book of the session of that year, familiarly called the Woman’s Law, and so much relied on by the opposite counsel, we presume there could be no difference of opinion in this case. Apart from the statute just mentioned, all of us will recognize the doctrine, that during coverture the husband has the possession, control, and management of the wife’s real property, and is entitled to all the rents, issues, and profits arising from it. He may mortgage her real estate, he may lease it, and the act is valid during the coverture. Clancy’s Rights of Married "Women, 169. Barber v. Harris, 15 Wend. R. 615, 617.
    But the answer of the opposite counsel to this is, that the act of the legislature of 1839, relating to the rights of married women, has changed the common law doctrine upon this subject, has divested the husband of the usufruct during coverture, and settled it on the wife. We think the statute referred to, on examination, will not bear'such a construction; and the court will not give such a construction, unless the meaning of the law clearly warrants it. It is in derogation of .the common law, and of common justice, that the husband should be liable for the debts of the wife, should be bound to support and maintain the family, and that the revenues of the wife’s estate should be exempt from contribution, except at her pleasure.
    The object of the legislature, in the act of 1839, seems to be directed to the subject of slave property, owned in any way by a feme covert; and the first section, which is the only one relating to lands, or personal property of the wife, other than slaves, we contend, only re-enacts what the common law secured to her, as to her lands. The provision is, that “ a married woman may become seized or possessed of any property, real or personal, by direct bequest, demise, gift, purchase, or distribution, in her own name, and as of her own property.” At an early day it was doubted, whether a married woman could hold an estate, or take an estate during coverture, except through the intervention of trustees; and although this doubt no longer exists in the courts, we can see no other reasonable construction of this section, than that this question should be settled by legislation. The language, she may become seized, &c., by direct bequest, &c., in her own name, &c., brings us to the conclusion, that the only object in this section was, to provide that a married woman may hold property, without the intervention of trustees, in the same manner as with them. But we insist that the law never intended to legislate away any of the rights of the husband over the wife’s real estate, which he previously had by law. If such had been the intention of the legislature, different language would have been used, such as the law recognizes as sufficient to give a separate and exclusive enjoyment of the usufruct of the property. The law declaring the real estate to be hers, does not thereby divest the husband of the use of it, during their coverture, or deprive him of the rents or profits of it. The language in the law will receive the same interpretation, as the language in a deed or grant would; and the conveyance of lands to á married .woman, to the express exclusion of her husband, would not give her the usufruct, and so the conveyance of the usufruct would not convey to her the lands. Clancy on Rights of Married Women, 269, 265, 266. 3 Tesey, 166.
    And when it is intended that the wife shall have and enjoy the property to her separate use, to the exclusion of the husband, language to that effect is indispensable. Clancy on Rights of Married Women, 262-266.
    And our legislature, in this act of 1839, show that they were familiar with this distinction, and the language necessary to give the property and its revenues to the separate use of the wife. For in the next section, the second section of the law, where they legislate upon the subject of slaves coming to the wife, the language is very different. This section provides that when a woman possessed of a property in slaves shall marry, the property shall continue hers, and she shall hold the same as her separate property, notwithstanding the coverture, exempt from any liability for the debts or contracts of the husband. The third section makes the same provision in regard to slaves, to which she obtains title during the coverture. And the fourth section provides that the husband shall enjoy the usufruct of the slaves. How different the language used in these sections regarding a feme covert's slave property, from the language in the first section, regarding her real property; and how different, we conclude, must have been the intention or object of the legislature. If the legislature had intended that the usufruct of the real estate should be taken from the husband by the first section, as that of the slaves is by the second and third sections, the same provision in favor of the husband in the enjoyment of the usufruct of the land would also have been, made in the fourth section. But this court has settled the question by solemn decisions since we penned this argument. 2 S. & M. 165; lb. 567.
    But again. We insist that the act of 1839, which we have been commenting on, has no.bearing at all on this case, even if the broad construction, contended for by the opposite counsel as to the first section, were. admissible. This section applies only to cases where the wife may become seized by direct bequest, de-, mise, gift, purchase, or distribution. It does not extend to .the case .where she may become seized, by descent or inheritance; And the latter is the mode in which the interpleaders, Baynton and wife, claim title to'the property, and to the rents due by Ballard for the use of the property. The property is an. inheritance from Mrs. Baynton’s father, Colonel Sessions. Baynton proposes to take it as his wife’s share of her father’s estate; the other heirs, as heirs, agree to it; an amicable partition or setting off of Mrs. Baynton’s portion of the estate is thus agreed on, and it is consummated by a quitclaim deed by these other heirs to her. This is the ordinary way in which coparceners generally make a division of the inheritance; and the idea that this partition by agreement converts the heir into a purchaser is certainly now broached for the first time. It is just the same as if this portion of Colonel Sessions’s real estate had been allotted to Mrs. Baynton under an order of court. 2 Bl. Com. 152, or 187. It is no more nor less than her part of the inheritance, as one of the heirs.
    The very definition of the terms descent and purchase, to be found in any elementary work. treating of real , estates, would settle this question. 2 Bl. Com. 161, or 201; lb. 193, or 241. .
    
      And the descent was cast too immediately on the death of Colonel Sessions, in January or February, 1838, a year before the passage of the law of 1839; another reason why it can have no application to the present case.
    ■ Then we conclude that the real estate, out of which the rents arose, which are claimed by W. H. Finnall under the garnishment in this case, was inherited by Mrs. Baynton from her deceased father; and consequently the statute does not apply to it, but leaves the rents, issues and annual profits of the lands subject to the control of the husband, and to his debts. And this corresponds too with the' answer of Mr. Ballard, that he rented the property of Mr. Baynton, though the latter said it was-his wife’s, (and so the title to it is) and that he paid him two hundred dollars of the rent. Least of all can it be said that Mrs. Baynton holds the property by purchase. If there be anything like si purchase about it (which we cannot perceive,) Mr. Baynton is the purchaser, and if so, not only the rents, but the land itself is liable for the judgment of Mr. Finnall.
   Mr. Justice Thacker,

delivered the opinion of the court.

Finnall obtained a judgment against Baynton’m. 1841, and proceeded against Ballard, by garnishment, as a debtor of Baynton. Ballard, in his answer, acknowledges that he had leased a house and lot from Baynton, and was thereon indebted, but that Baynton had informed him that the premises belonged to his wife. Baynton and wife interpleaded under the statute for her behalf, and verdict and judgment were rendered for Finnall. The interpleaders moved for a new trial, because the verdict was claimed to be contrary to" law and evidence, and because the court below charged the law erroneously to the jury, but the motion was overruled, and hence this writ of error. On the trial it appeared that the property leased to Ballard was a part of the estate of Joseph Sessions, who deceased in January or February, 1838, and among whose heirs at law was the wife of Baynton; In December, 1839, or January, 1840, an agreement was made and concluded between Baynton, for his wife, and the other heirs of Sessions, that he would receive in her behalf the above-mentioned leased prpperty as her share of the estate, Baynton assuming an indebtedness to the estate, of $3,662 50, he and his wife being indemnified by the other heirs against the debts of the estate. On the 7th day of January, 1840, the other heirs executed a quitclaim deed with special warranty of the said prpperty to Baynton’s wife. It further appeared that the estate of Sessions was much involved in debt, .was still in the hands of an administrator, and had never been distributed other than as before described.

By marriage, a husband acquires, during coverture, the usufruct of all the wife’s real estate, and a lease of her land by him, is good during coverture. Clancy’s R. M. W. 169. Barber v. Harris, 15 Wend. R. 615. These principles of the common law are not affected or altered by our statute of February 15th, 1839, entitled “ an act for the protection and preservation of the rights of married women,” but they remain as they were so found to be established. This is not such a controversy as can interfere with the rights of Sessions’s administrator or the creditors of his estate, and if there be any irregularity in the title or possession of Baynton’s wife to the property, this decision cannot preclude either the rights or the remedy of the administrator or creditors. . As between the parties to the action before us, there can be no doubt that the finding of the jury was correct, because Ballard, in his answer, beyond which we cannot look, admits that he is indebted either to Baynton or to Baynton’s wife, and, in either event, his indebtedness was liable to Finnall’s execution, by means of the process of garnishment. No other parties inter-plead to claim the amount due from Ballard.

It grows out of the argument of counsel in this case to remark, that when a jury have returned a correct verdict according to the law and evidence of a case, although the court below may have instructed them erroneously during the trial, yet this court in a case brought here solely upon a motion for a new trial overruled/ will not disturb the judgment on that account. The end of the law has then already been obtained, without real prejudice to any party. Perry v. Clarke, 5 How. 495; Cartwright v. Carpenter, 7 How. 328.

The judgment of the court below is therefore affirmed.  