#### A. C. FREEMAN *against*FANNY MOSES AND OTHERS.

Where a contract in waiting, made in contemplation of marriage, and signed by theintendedhusbandand -wife, does not expressly exclude the intended husband, but gives him a joint use in the property -with the intended wife during her life, she is not such “.afree trader ” as to make her bond obligatory on heriir Equity, although the debt was contracted qpon the faith of the property contained in the settlement,

Cause removed from the. Court of Equity of Stanly County. The deed, upon the consteuQtion of which tbjLs Qa.se rests. *23reciting that a marriage was about to take place between Frances Adderton and Amram Moses, and that the intention of the parties was to have the estate of the wife, real and personal, settled and secured to her, so that it should not *absolutely and exelusi/uety vest m the said Amra/m*bj virtue of the intended marriage, conveyed to the defendant Harris, as trustee, all the estate and property of the said Frances, consisting of land, ne-groes and other personal property: in trust, however, that in the event of the said marriage taking place, “ the before mentioned property shall return to their possession and be enjoyed and used by them during the natural life of her, the said Frances and further, “ that in case the intended husband should survive, the property should go to the *heirs at lam and dis-tributees*of the said Frances.” On account of a supposed de-defect in the title of the trustee, from the want of registration, this deed was treated as invalid by the other creditors of Moses, and all the personal property was sold to satisfy executions obtained against him. The land, however, was believed to be protected under the act of Assembly, and was still in the possession of Moses and wife.

The plaintiff, in his bill, recites the above facts, and alleges that Mrs. Moses was the principal in a bond to one Earnhardt, and that he, at her instance and request, and relying on the separate estate thus secured to her by deed, signed the said note to Earnhardt as surety, which was also signed by Moses; that he has been compelled to pay the money to Earnhardt, and he prays that he may be reimbursed out of the land still in the possession of Moses and his wife.

The defendants answered, and proofs were taken, but as the case turns upon the construction of the marriage settlement, it is not deemed important to set the same out at large.

The cause was set down for hearing, and sent to this Court by consent of parties.

*21. O. Jones*for plaintiff.

*Q. O. Mendenhall*for the defendants.

Hash, C. J.

The bill is filed to subject the property of the defendant, Mrs. Moses, to the payment of the bond set forth *24in the pleadings. Mrs. Moses is a married woman, and was so at the time she signed and executed the bond; and the whole question may "be put upon the proper construction of the marriage settlement which was executed by Mrs. Moses and Amram Moses, before their intermarriage. The plaintiff contends that by that instrument, ‘the whole of the property of Mrs. Moses, then Mrs. Adderton, both real and personal, was conveyed, to Mr. Harris, one of the defendants, to-hold for her sole and separate use. The wording of the deed of trust is peculiar. • It recites that a marriage was about to be consummated between Fanny Adderton and Amram Moses; it then proceeds, “ and whereas the said Frances is desirous of having her estate, hotli real and personal, settled and secured in' manner and form herein after mentioned andl more particularly described, *so that it shall not absolutely miel exelusixely*vest in the said Amram by virtue of the marriage,” &e. In setting out the uses of the deed, it proceeds “in trust, nevertheless, that in the event of the aforesaid marriage, between the said Frances and Amram, the before mentioned property shall return to their possession, and he enjoyed and used by them during the natural life of the said Frances, if the said Amram should surviveher, the said Frances.” It then provides for the disposition of the property should Amram survive her;, which Amram covenants to perform. Hoes the. deed' convey to Mrs. Moses a separate estate to her own separate use in the property conveyed? We think it does not. The question here is not whether a feme covert, to whom property is conveyed to her own separate use, can so hind herself as to subject her separate estate: of that we do not enquire. There can be no doubt that the debt sought to he enforced against the property was contracted, so far as" Mrs. Moses is concerned, upon the the faith of it. Still the question recurs, did the conveyance or settlement constitute her a free trader *%*Unless it does, the obligation is inoperative and void as toiler: she had no power to bind herself. Ho words of art are necessary to secure property'to the sole and separate use of a married woman: it is the intention of the parties to exclude the husband which ought to govern: but this intention must be clearly and nn-*25equivocally expressed. The husband cannot be deprived of hisy'w *mariti*“without plain recorded words or necessary implication.” Rudi*sell*v. Watson, 2 Dev. Eq. 430. See also, *Ashcraft*v. Little, 4 Ire. Eq. 238. It will not do to guess.— There is nothing in this settlement to show that the property embraced in it was intended to he conveyed to the sole and separate use .of Mrs. Moses to the exclusion of her intended husband: the contrary is apparent. In the preamble, the intention is expressed to be for the purpose of preventing Am-ram Moses from having the *absolute and exclusvue*right to it. So far then, from the intention being, as gathered from these words, to secure the property to the sole use of the wife, to the exclusion of the future husband, it secures to him a joint use with her.

But the operative part of the deed, where the uses are declared, leave no doubt upon the subject. If the marriage does take place, the property is to return to them (the said Frances and Amram) and be *enjoyed and tosed*by them during the natural life of Frances. An interest in the property during her life is secured to her husband, and she has not a sole and separate use in it. She is not a sole trader, and the bond sought to be enforced against her, is, as to her, void. Supposing this doctrine to apply to persona! property, as this bill seeks to subject the land of Mrs. Moses, it is not within the operation of the rule. The bill dismissed with costs.

Pee Curiam. Decree accordingly.