#### NANCY HARRIS & AL. vs. HERBERT HARRIS & AL.

A *feme covert,*entitled to a separate estate in personal property, unless ther»' be some clause of restraint of her dominion, may convey it and do-all-other acts in respect to it, in the same manner, as if she were a *feme*sole, whether a trustee he interposed or not.

Pearson, J., dissented.

The" cases of *Dick*v. *Pilchford,*1 Dev. & Bat. Eq. 480, *Miller*v. Binghahj, 1 Ire. Eq. 423, *Frazier*v. *Brownlow,*3 Ire, Eq,.237, and *Nowlin*v. *Freeman, 4*Ire. Eq 312, cited and approved.

Cause transferred from the Court of Equity of Rutherford County, at the Spring Term 1842.

Upon the pleadings and proofs the following case appeared :

On the 11th of May 1835, Frederick Ward conveyed á negro girl, Jinny, to Thomas Ward, “in trust to and fot* the separate use of Nancy Harris, the wife of William Harris, and free from any control'of the said William, during the natural life of the said Nancy, and upon the death of the said Nancy upon further trust to hold the said negro and her increase to the sole and separate use of Elizabeth Ledbetter, the wife of Richard Ledbetter, and Sall}i the wife of John Scorey, both to be equally interested in said trust; and upon the happening of the death of the said-Elizabeth or Sally or both, the said Thomps is *to*hold the said negro and. her increase for the-hcngfit, of their children ; *one*half to the children of Elizabethiaud the other half to the children of Sally.” Elizabeth Led-*112better and Sally Scorey were the daughters of William and Nancy Harris. The negro girl was in the possession of Harris and wife ; and, in March 1838, William Harris, being much indebted and judgments rendered against him for debts for which his sons-in law, Ledbetter and Scorey, were bound as his sureties, William Harris and his wife, Ledbetter and his wife, and Scorey and his wife sold the negro woman and one of her children, then six months old, to the defendant, Herberf Harris, for the price of $700, and those six persons made a deed to said Herbert for them, with a covenant of general warranty : and he took them into his possession. He paid the consideration money partly in discharge of the debts mentioned, partly to William Harris, and partly *to*Ledbetter by the direction of the other vendors. Scorey and wife have four children and in September 1841 this bill was filed by Mrs. Harris, Mrs. Ledbetter, Mrs. Scorey, and her four children, against Herbert Harris, William Harris, Led-better, Scorey, and Thomas Ward, and charges that Herbert Harris knew of the existence and contents of the deed made by Federick Ward, and that, with such knowledge, he purchased the negroes from William Harris for an inadequate consideration, and that, supposing that he could make' his title good thereby, he, by persuasions and false suggestions and promises and undue influence and control over them, caused and procured the plaintiffs, Nancy, Elizabeth and Sally, and their husbands, to sign the deed for the slaves — Ledbetter being induced to do so by receiving a part of the purchase money, and the said Scorey by getting to himself another child of Jinny, then in his possession. The prayer is, that the defendant, Herbert» may be compelled to surrender the slaves and their increase.and^account for the hires, so that the purposes of the deed of settlement may be performed, fit l *'.o-*general relief.

*113' The answer of Herbert Harris denies all the allegations of fraud and undue advantage, sets forth the terms and purposes of his purchase, and the conveyance to him, and insists on his title thereby acquired.

*Guión,*for the plaintiffs.

*Bynum,*for the defendants.

Ruffin, C. J.

The plaintiffs have failed to establish any extraneous circumstance to impeach the conveyance to the defendant. Indeed, the allegations of the bill are expressed in such general terms, that one must suppose that no relief could be expected on them ; and that it was intended to put the relief on the grouud, that the conveyance by a married woman of a slave, held by a trustee to her sole and separate úse, is inoperative. The opinion of the Court, however, is to the contrary; and we hold that a *feme covert,*entitled to a separate estate in personal property, unless there be some clause of restraint of her dominion, may convey it and*do all other acts in respect to it in the same manner, as if she were a *feme sole.*That is the settled law of the Court of Equity in England, and was, long before the revolution ; and it is therefor» obligatory upon the Courts here, just as much as any other established rule of property, derived from our ancestors. To go no further back, it was unquestionable law in Lord Hardwicke’s time. *In Peacock*v. *Monk, 2*Yes. 191, he points out the difference in that respect between real estate, and personalty, or the profits of real estate, which in fact is personalty and goes to the executor; and he gives the reasons for the difference. As to personal property, he says, where the wife has a separate use in it, “she may dispose of it by an act in her life time or by will. She may do it by either, though nothing is said of the manner of disposing of it” — that is, in- the settlement, or articles. That has never been denied in Eng*114land from that day to this, though the grounds of the rule have been often stated in subsequent cases, and the principle itself more distinctly explained. In *Fettiplace v.*Georges, 1 Ves. Jr. and 3 Bro. C. C. 8, it was, for example, stated in terms, that personal property, settled or agreed to be settled to the separate use of a married woman, may be disposed of by her as a *feme sole*to the full extent of her interest, although no particular form for doing so is prescribed in the instrument. The principle of that rule is, that she takes separate property as hers exclusively, ■with all the rights and incidents of property; of which one, and a most important one, is the right of disposition. This principle has been applied to all cases since, in whatever form they may have arisen. Thus she may convey personalty in which she is entitled to a separate use in reversion, as welt as a present interest. *Sturgis*v. *Corp*13 Ves. 190. She may sell or give even to her husband, since in respect of that property they are regarded as distinct persons, like other strangers ; though the Court will scrutinize such dealings upon a natural suspicion of actual constraint on her. *Powlet*v. *Delavet, 2*Ves. 663.— *Squire*v. *Dean,*4 Bro. C. C. 326. She may not only convey her separate property, but, without the consent of her husband or trustee, she may encumber it by mortgage, or charge it by contracting debts, as by giving a bond for so much money merely. *Fettiplace*v. *Georges,*and *Halme*v. *Tenant,*1 Bro. C. C. 16, 2 Dickens 560. Other instances need not be cited as evidence, that, in the last case, Lord Thuklow laid down the rule as correctly as he did explicitly, which he took from *Peacock*v. *Monk,*that a *feme covert,*acting in respect of her separate personal property, is competent to act in all respects as if she was a *feme sole.*He says, it was impossible to say the contrary. Now, beyond all controversy, the ground of that rule is not any capacity or power supposed to be imparted ‘to. a married woman by her husband or by the instrument, *115creating the separate use, as a capacity or power thereby created and subsisting by itself apart from the property ; but it arises out of the ownership of the property, and thé right such absolute ownership imparts to the person, to do with it as she pleases, When equity adopted the principle, allowing that separate property might be vested in a married woman, which the law denied, it followed, as being inherent in *thcjusproprietatis,*that there should be theyws *dlsponendi.*That is declared in all the cases to be the principle; and there is no contradiction among them. Even when a gift is made in general terms to the sole and separate use of a *feme covert,*and the instrument goes on to add, that she may dispose of it in some particular manner, as by deed or will, yet she may do so in any other manner, by reason of her general property, in which the power is merged. *Elton*v. *Sheppard,*1 Bro. C. C. 532. *Hales*v. *Margerum,*3 Ves, 299. Such being the nature *of a. feme covert's*right to dispose of her separate property — conferred by equity, not created by the settlor —the doubt was, whether any restraint upon the right of alienation by the provisions of the deed was admissible. Upon principle, it, unquestionably, was not; because the common law denies such a restriction, and in respect to equitable estates the general rule is, that equity follows the law. But this anomaly was admitted by the Court of Equity, in order the more effectualljr to protect the wife from the control or solicitations of her husband, and ihereby make the separate property a more effectual provision. As was observed by Judge Gaston, in *Dick*v. *Pitchford,*1 Dev. & Bat. Eq 480, the controversy upon that point is settled by authority in England in the cases cited by.him. But that very controversy only shows more conclusively, that, but for provisions in the instrument in restraint of the anticipation of profits or alienation of the capital, the right of disposition existed as an absolute right belonging to the owner of the property. Is there any *116reason, why the judges of this Court should not hold the law to be the same here: or, rather, why we should not be obliged so to hold ? There seems to be none whatever ■ — no plausible ground for setting up a new rule upon their own arbitrary will. If there had been any legislation on the subject,at all incompatible writh the law our ancestors brought with them : if there were any thing in those rules repugnant to or inconsistent with the form of government, as it is expressed in the statute, respecting the parts of the common law to be in force here, then the Judges ought to conform and mould the rules to correspond, by proper qualifications. But we are not aware of any such legis* lation or repugnancy. On the contrary, the Courts of this State have heretofore proceeded on the idea, that they were to administer the law upon this subject, as they found if, as in other instances. In *Dick*v. *Pitchford,*just quoted, this doctrine of equity is recognised, and used as illustrating the question then before the Court, which was the right of a male *cestui que trust*to assign the trust fund, though, by the terms of the deed, the trustee was to apply the profits annually to his use. In other cases of creditors, seeking satisfaction out of a trust fund, intended to be tied up beyond the control of an improvident *cestui que trust,*it has been said, that the only instance, in which such a provision could hold, was in that of a married woman — thus implying that, without the provision, there would be no restraint on her. Again, so far from con* eidering the separate property of a married woman susceptible of transfer, under the idea of her executing a power, it was held in *Miller*v. *Bingham,*1 Ire. Eq. 423, that, when property was thus conveyed during the marriage of a *feme,*the separate use itself ceased *ipso facto,*upon the determination of the coverture, and was converted into aft ordinary trust for the *feme,*and so vested in ■her second husband. And in *Frazier*v. *Brownlow,*3 Ire. Eq. 237, the genera! principle was declared, as derived *117from *Holme*v. *Tenant,*and other cases, that debts con* traded by *a. feme covert,*in reference to her separate personal property, bound such property in the hands of her trustee, and satisfaction of the debt was decreed out of slaves held to Mrs. Brownlow’s separate use, though the deed for the slaves contained no power to her to charge debts or alien. Let it not be said, that the slaves were the produce of the profits of the land, which were at her disposal, and therefore that the creditors had a right to follow those profits in the slaves, in which they, were in* vested. That was not the principle of the decree or of the opinion given. On the contrary, the relief proceeded simply and exclusively on the fact, that the slaves were purchased and held by the trustee to her separate use.— In *Newlin*v. *Freeman,*4 Ire. Eq. 312, it was expressly held, that the circumstance of the investment of the wife’s separate money in other property can have no effect, and that the property thus purchased will be treated, as if it had been derived in any other manner: that is, that its nature will depend on the nature of the conveyance taken for it. In that case, accordingly, land, which was bought with the separate money of the wife and conveyed to a trustee for her, but not to her separate use, and without a power to her to devise it, could not be disposed of by her will, though the marriage articles authorised her to devise the land she had at the marriage and also all her personal property. Besides, how does she get the right o dispose of the profits more than the capital ? If it be said, that the perception of the profits is the use given to her, the answer is, that *the use*secured to her is as much the use of the capital as of the profits : all consisting of property the same in kind, namely, personalty, and therefore each must be equally at her disposition. It is clear, therefore. that *Frazier*v *Brownlow*proceeded upon the general principle, that, as to separate personal property, the lady was a *feme sole,*and therefore equity would lay hold *118of that property for the benefit of her creditors — at least where she charged the debt on it. If, in that case, after purchasing the slaves with her own money, she had taken the conveyance to herself or to a trustee for her simply, and not expressing it to be for her separate use, there can be no doubt but they would have belonged to the husband. But, when she took a deed to a trustee to her separate use, then, without any regard to the source from which the purchase money was derived, the slaves, as her separate personal property, and, as such merely, were charge 1 with her debts and became liable to be sold for their satisfaction, as an incident of ownership, as legal personal property may be taken at law by execution. That case is, therefore, a precise authority, that, in respect to such separate property, a married woman is held here, as in England, to act as a *feme sole.*Hence, if the Courts here had been at liberty formerly to pay no respect to ihe principle so long settled in the mother Country and to invent a new system for use here, it seems clear, that, upon every principle on which judicial precedents obtain authority, the series of dicta and decisions in this State should be conclusive with the present Judges. It is said, indeed, that a contrary course has been followed in some of our sister States. But, we believe, not after many adjudications had been made conformably to the old law. In New York, it is true, that it was once held, that a married woman was not to be deemed *Pífeme sole*in respect to her separate property, save only *sub modo*and to the extent and in the manner prescribed in the in* strument creating the estate. *Methodist Church*v. *Jaques,*3 John. C. C 78. But even the authority of Chancellor Kent’s great name could not uphold that position; and, upon appeal, the decree was reversed in the Court of Errors upon the opinions of the most eminent Judges. 17 *John. Rep.*548. Since that time, by various judgments of the Court of Errors and'Chancellor Walworth, the *119old doctrine is re-established in its integrity. In South Carolina it seems to be settled otherwise, it must be admitted. But that seems to have been upon the authority of an early ease in that State, *Ewing*v. *Smith,*3 Dessaus 417, reversing a cíecreé of Chancellor Disssaussure founded on full research into the cases on this subject and their reasons. It is true, that Judge Harper, in *Reid v. Lamar*1 Strob Rep. 27, speaks of the restriction on the right of the *feme to*dispose of her property except under an express grant of power, as more in conformity with the policy on which the right of separate property to the wife was allowed in equitja But he means only thereby, that it the better protects the interests of the wife, and not that it is against the public policy, that a married woman should have the right of disposition. He could not mean the latter ; for, if that were true, then even the most express grant in the settlement would not confer the powerj since the law never suffers the acts of parties to defeat its policy. Yet he admits and no one can deny, that at all times a married woman has been capable of executing a power, and that for her own benefit as well as that of another. And the late Mr. Justice Story, subsequently to all the American adjudications, states the old rule of equity as being yet the rule, without any qualification from those decisions. 2 *Story’s Eq. s.*1389), *et seq.*It is in fact, then, not a question of policy, but simply aques-lion of construction of the instrument creating the estate: Whether, when it conveys property to the separate use *of*a married woman, it means to restrain her right of alienation, as incident to ownership, when.it expresses no restraint, or only when the intention to restrain is declared in the instrument. It might have been contended, With some apparent reason, to be against the policy of this Country and the habits of our domestic relations, to allow separate equitable property in a wife, at all. But it is too late to think of that; and it is, morever, altogether a *120different question from the present. Being allowed, the ■dispute now is as to the meaning of the instrument. This dispute is, therefore, merely as to the form of conveyances or agreements for the separate use of a *feme covert,*and does not in the least concern the policy of the law or the institutions of the Country — since, by express provisions, the parties may undoubtedly confer the power of disposi. tion or restrain it. That being the true nature of the question, it would seem to be too much like unsettling the forms of conveyances and the rules of property to say, contrary to a very old rule of construction, that the par» ties intended to restrain alienation, though they do not say so. It is enough to fetter an owner, when the donor says, he does not mean she shall dispose of the property, but only enjoy the profits during her coverture or life.— Suppose a parcel of chargeable or sick slaves to be a married woman’s separate property and all her property. How are they to be fed, clothed, or cured, unless debts can be contracted on their credit, or some of them may be sold? Yet upon the doctrine, that she can move only under a power, she is perfectly helpless, and the slaves must be left to their fate of destitution or death ; or an exception must be admitted, which shows that there is either no general ruje, or one to which exceptions may be arbitrarily allowed, without regard to the supposed meaning of the deed and intention of the parties.

‘The plaintiffs,therefore, who are married women, are concluded by their deed, which in this Courtis considered as passing all their estate ; and, as no relief is sought except against the deed, the bill must be dismissed with costs.

Pearson, J.,

Dissent. The doctrine of the English cases is, that a married woman, in regard to property secured for her separate use and maintenance, is, in all respects, *121to be considered as *a. feme sole,*and has the absolute right of disposition by sale or will.

A different doctrine is established in almost all of the States of the Union ; and it is held, that, in regard to her separate estate, the wife is considered as a *feme*covert, subject to all of the common law disabilities, except so far as she can derive a power under the settlement, by its *express*provisions, and except so far as the’^right to receive and apply the *profits*for her maintenance. See *White’s leading cases in Equity,*and the cases there cited, in note, page 370-73.

I consider the question open in this State; for, although the English doctrine has been incidentally alluded to with approbation in several cases, it was not necessary to adopt the doctrine of *implied*powers, inasmuch as, in those cases, an *express*power was given. Whenever it is unnecessary to decide a point, the decision ought not to be taken as an authority, for this plain reason, there is no occasion to contest it, and it is, therefore, not “turned over and over” and looked at in every point of view, as it would be, if the case turned on it. Hence, I object to any modification of our law, or to the adoption or building up of any doctrine, by force of *obiter*opinions, no matter how often they may be repeated.

The case of *Frazier*v. *Brownlow,*3 Ire. Eq. 237, is nearer being an authority than any othér; but there the Court goes further than the facts of the case called for, and it is an *authority*only to this extent, if the profits of land be secured for the separate use and maintenance of a married woman, she may, with the assent of her hus* band, charge such profits for a debt, admitted to be for articles furnished for the maintenance of herself and family.

The negroes in that case were held by the trustee in the room and stead of the *profits of the land,*which he had invested in negroes ; and he held them precisely as *122he would have held the accumulated profits of the land, had he put the money in his desk, or made a deposit of it in Bank, so that the *feme*might use it as her necessities required.

So, in this case, as the *feme*had only a separate use *for life*in a negro *woman,*who was having children and wa.s, therefore, of no annual profit, and as, for her maintenance, she had a right to dispose of the profits, and a life estate is only in fact a right to the profits, I should have been willing to put this case upon the ground, that, in disposing of her life estate, she disposed of the profits only.

But the general doctrine was much discussed in this case and in the case of *Whitfield*v. *Hurst,*and my brother *Judges*have concluded to announce the *English*doctrine, in all of its generality as to *implied*powers, in relation to the separate estates of married women, and I feel constrained to dissent.

I adopt the American, in preference to the English, doctrine, upon these grounds: It is more consistent with the “reason of the thingIt makes a less departure from the ordinary principles of law : and it is more suitable to the habits and customs of the people of our State.

First: “The reason of the thing.” The common law considered the wife as merged in the husband, so as *to*be in law but one person. The evil is, that husbands, thus acquiring the ownership and right of disposition, may he *improvident,*and, by voluntary alienation, or debt, dispose of all the property and leave wives desti tute and without maintenance. The remedy is, to set apart a fund for the separate use and maintenance of the wife; which fund the husband *cannot seller*make liable for his debts. The evil is remedied by *disabling*the husband ; and as a remedy for the evil, there is no sort of necessity to go further and *enable the wife,*by taking away her legal disability and setting her up as a *123*feme sole,*with power to act and deal independent of her husband, to be a free trader or to deal in goods, wares and merchandise.

Wives are as apt to be improvident as husbands ; and it is against “the reason of the thing” to disable the husband and enable the wife, by implication, to become a *free trader,*as a *feme sole.*One *evil*is avoided by falling into another. To remedy this second evil, a learned Chancellor of England suggested, that there ought to be in the settlement a restraint against alienation or anticipation on the part of the wife. Thus, a power is created bjr implication, which it is necessary to restrain by an express provision; in other words, there is a “wheel within a wheel,” and the machinery is made so complicated, that no two Chancellors ever make.it work in the same way.

Secondly : It makes a less departure from the ordinary principle of law. While it admits, that the protection of married women makes it necessary to depart from the rules of the common law, so as to allow property to be vested in a trustee for the separate use and maintenance of the wife, and thereby give her the use of the profits, and to *disable*the husband from all right to control or dispose of such property, it is careful not to make a greater departure than the necessity of the case calls for, and it only allows the wife to dispose of the *property,*when she has an express powmr to do so by will or otherwise.

On the contrary, the English doctrine makes an entire departure, and, in regard to her separate estate, the wife, in equity, is to all intents and purposes a single woman and a fxee trader, with implied powers to make a disposition by sale or will, as if she was not married.

When a husband agrees to give up his right of disposition in reference to certain property, and devotes it to the separate use and maintenance of his wife, so as to put it beyond any contingency, as regards his own acts., how *124does it follow, that, because he is disabled, his wife be* comes enabled to dispose of the property ?

It is said, the right of disposition is an incident of ownership. That is true ; unless the owner is *under a legal disability.*Admit that the wife is the owner: She is not capable of disposing, because she is under disability ; and the remedy for the evil, as above suggested, is to disable the husband, and not to remove the disability of the wife.

But is it true, that the wife does become the owner ? — ■ There is no necessity for it, because the evil is remedied by allowing the property to be held for the purpose of her maintenance, and to be *the property of the husband, subject to this trust.*If it be the intention, that it should not only be subject to this trust, for the maintenance of the wife, but that she should have the right to dispose of it by will or deed, let the husband give his consent by an express power in the settlement. This would be but a slight departure from the common law, which allows a wife to dispose of her personal property by will, provided the husband gives his consent. In the absence of an express power, I am at a loss to conceive any ground for implying a power, which is not necessary to carry out the purpose of the settlement, to wit, “the maintenance of the wife.” I here repeat what is said before. A wife maybe improvident as well as a husband ; and the rule, by which she acquires by *implication*a right to charge and sell and dispose of the property, makes it necessaty, in order to protect her from her own improvidence, and *from*the influence of her husband, to insert a clause restraining her from alienation or anticipation *;*thus making it necessary to violate one rule of the common law, in order to get relief from an *implication,*which violates another rule of the common law; thus making a complicated system of implied powers and restraints, wholly at variance with the common law.

*125Thirdly: It is more stated to the habits and customs of the people of our State.

We have happily refused to adopt the English doctrine of “a part performance of a parol contract,” and the doctrine of “alien” by a vendor, who had executed a deed, for the purchase money, and the doctrine of *“a wife’s equity for a settlement,”*“because it is not the policy of our law to encourage separate estates,” and the doctrine, that purchasers from trustees are bound to see to the application of the purchase money. Having rid ourselves of these four refined, complicated, and artificial doctrines of the English system of equity, I was in hopes, that we had also got rid of the doctrine of implied powers, in regard to the separate estates of married women; which involves the idea of a married woman being, to all intents and purposes, a *feme sole,*in regard to her'Separate property— an idea, which, according to the principles of law that I have imbibed, lam unable to comprehend, apart from an express power of appointment.

It is believed, that the effect of the doctrine in England, by which property is not only set apart, as a fund for the maintenance of the wife, free from the control of the husband, but the wife, in regard to the fund, is made *a. free trader*and is looked upon as a *feme sole,*has not been at. tended with very happy consequences upon the state of society, because it has produced a complicated relation, very different from the simple state of “man and wife,” as it existed at common law — one person joined together for “better or for worse” — and the English Reports are filled with more cases of divorce, and alimony, and *crim. con.*than, I trust, will ever be found in the reports of No.'th Carolina. So far, wives in North Carolina have set up no pretensions to be *free traders,*although an estate was settled for their separate use and maintenance, and they have *never attempted*to make a will, unless there was an express power.

*126This .complicated system of implied powers and restraint is totally at variance with,the policy of our Country, and for that reason has been repudiated by our sister States, who have adopted, in its stead, the plain and simple idea, that the husband is disabled, but the wife is not enabled, except so far as the deed or will confers an .express power.

As the doctrine has been discussed at large, I think it proper to notice a distinction, which may be taken, between a right to sell for the purpose of maintenance, and a right to dispose by will or by gift. Under the countenance of a Court of Equity, and to guard against the improvidence of the husband, a fund may be set apart for the maintenance of the wife, contrary to the rule of the common law. Suppose such a fund *is set*apart, and admit that in some cases (as in the case under consideration) it is necessary to sell, (or to charge by way of anticipation of the profits,) the current profits not being sufficient for the maintenance of the wife, and that, for this purpose, from the necessity of the case, a right to dispose of the life estate is implied, does this reason extend, so as to make an implication of the right to make a will *1*It is not necessary for her maintenance ; and the right to niake a will, if such was the intention, ought to have been expressly conferred. So there is a clear line of distinction between a right to sell, *especially a life estate,*which may be necessary to make the fund available, and the right to make a gift or to dispose of it by will, which, I believe, ought not to be implied, and should be conferred by express power.

Pee Con am. Bill dismissed with costs.