#### *Polly*Calhoun, *by her next friend vs. James J.*Calhoun, *an*d *Dixon Thompson.*

A *feme covert*in relation to her separato estate is not to be regarded as a feme sole : she cannot, even with the consent of her trustee, alienate it, unless it .be in pursuance of a power given to her by the deed or will „ creating it, or after an examination in Equity.*(a.*)

The deed creating the wife's separato estate in this case contained tho restriction, that it shall not bo “ subject to any alienation whatever in case of her marriage, and excluding forever, every claim of pretence of claim, by her husband to the said slaveswhich prevente her alienation under any circumstances from being legal*

*Before*DeSaussure, Ch. *at*Barnwell, February, 183.1.

The original bill states that one Gideon Hagood, on the'10th December, 1804, by a deed duly executed, for certain considerations therein expressed, bargained, sold' and delivered certain negro slaves in the said deed named, unto o.rie Daniel Miller upon the following irasts, viz: as to two of the said ‘slaves, namely, Dinah and Mary, with .their future 'issue, in trust for the complainant, then Tolly McLewrath, and the heirs of her body, “ but not subject to any, alienation whatever in case of her marriage, and excluding forever every claim Or pretence of claim by- her husband to the said slaves.” ,

■That the complainant subsequently intermarried with the defendant Jamgs J. Calhoun ; and the said slave Mary having had issue, a. daughter,, called Jemimah, worth about $32£, her husband, the said James J. Calhoun, on the 29th November, 1827, combining with .the defendant Dixon' Thompson, and others, bargained and delivered the said last mentioned slave to .the said Thompson, who had notice of the'aforesaid deed, and who gives out that he will shortly go out of the State, whereby the complainant will b.e ■ deprived of hei interest in the said slave, who was conveyed to her own separate'use as aforesaid. *37That the said Daniel Miller has departed this life, and the complainant has no person to attend to her interest in .the premises.

The prayer of the bill is that the defendants may answer: that the slave Jemimah may be declared to be the separate property of the complainant, and secured to her as such, «fee., &c.

The answer of Dixon Thompson admits the execution of the deed from Gideon Hagood to Miller, in trust for the complainant, but states that he is informed and believes and hopes to prove that the same was fraudulent. The defendant also admits the purchase of the girl'Jemimah for $275, and that he received for her the bill of sale' of James J. and Polly Calhoun; that the purchase money was paid by him, and, as he has understood, was applied to debts contracted for the support of the complainant and her children. This defendant denies notice of the deed at the time he made the purchase, &c.

On the 31st December, 1829, William H. Hewlett, William H. Peyton, John Aaron, Matthew Beck and Wm. Kenady filed a cross bill against James B. Calhoun and wife, charging that at various times the complainants were induced to credit Jas. J. Calhoun and wife with different articles amounting to $ ' ; that subsequently they applied to Calhoun and wife for payment, who, for the purpose of paying of the amounts due to the complainants, contracted with and sold to one Dixon Thompson, on the 29th November, 1827, a negro girl named Jemimah, for $275, which, by the consent of Calhoun and wife, was applied to the payment of the complainants. That afterwards, the said Polly Calhoun, by her next friend, filed a bill against the said Dixon Thompson, and her husband, James J. Calhoun, setting forth that the said girl Jemimah was not liable to the payment of the said debts, but was part of a separate estate secured to the said Polly Calhoun by deed.' That Polly Calhoun sued out a writ of *ne exeat*against Dixon Thompson; and the complainants, to secure their demands, became his sureties. That Dixon Thompson has since removed from this *38State taking the girl Jemimah. with him. The bill charges a confederacy between Calhoun' and wife to defraud the complainants; that’the articles furnished by the ,complainants were absolutely necessary-to the support.of Polly Calhoun and her children, without which they must have suffered,'if not perished; that the separate estate of Polly Calhoun .is liable for fhe payment of all such debts as were contracted for the support of those for whose benefit the said estate was created; that-the defendants have no 'property except the separate *property.*The prayer of the bill is that the defendants .may answer,"-and be compelled to pay the complainants their’demands,, &.c. -

Polly Calhoun, in her answer to this bill, says, that she never did apply to either of the complainants for credit, either on her own responsibility, or on the faith of her separate estate ; that being ignorant of the complainants’ demands she cannot say whether they are just, or pot, but insists that, if the said accounts are just, they were contracted with her husband,, -and on his credit, and the complainants-'have no' claim in justice'for payment out of her separate property. This defendant admits, that she-was prevailed on to sign the bill of sale of the girl Jemimah to Dixon Thompson under the following - circumstances : — on the evening of the day on which the bill of sale was executed, Dixon -Thompson, and the complainant, Mathew Beck, came to this defendant’s house; and after a long conversation with her husband, at which "she was not present, they came into the house, when Beck .observed to this defendant, that he had brought Mr. Thompson to buy the girl Jemimah. This defendant objected, on the .ground that *$275,*.the price proposed, Was not a fair .price; remarking, that he, JMr. Beck himself had previously agreed to giye-$350 for the girl; Mr, Beck-replied that he had then with him executions against her husband, and unless she signed the bill of sale, he would in the morning levy on the corn and other provisions on the place, and that nothing would be left for her and her family to live op ; this defendant hesitated several hours, but seeing. no alternative but to sign the’ bill of sale, or see herself and children. *39destitute, she at length, under the influence of the urgent entreaties of her husband, and the repeated threats of the complainant, Beck, that he would not leave her any thing to live on, was prevailed on to put her signature to the instrument; that at the time she signed the bill of sale, she told Mr. Thompson that his title to the negro would not be good, and she-swears that had she been left to consult and exercise her own reason and judgment, she would not have signed the bill of sale; that she did not, in fact, agree to the sale; that she did not think the price a fair one; nor did she believe that in justice and equity the said girl ought to have been sold to pay the demands of the complainants. This defendant denies fraud, combination, &c.

The answer of James J. Calhoun to the said cross bill admits that he believes the accounts of the complainants are true, and were contracted by this defendant on his own credit without consulting his wife, and without any reference to her or to her separate property, and he does not believe that in the original entries, or .other evidence of the said demands, the name of his wife is mentioned, and if it was, it was without his knowledge. This defendant also admits that he sold the girl Jemi-mah to Dixon Thompson, at the instance of the complainant, Beck ; although he then thought and still thinks that the price stipulated was much below her real value ; but believing that he was in the power of the complainants, in order to prevent his family from being stript and left destitute, he agreed to the sale, and prevailed on his wife to sign the bill of sale. This defendant further says that the complainant, Beck, and Dixon Thompson, were well apprized of the separate rights which the defendant’s wife had to the negro both before and after the sale, and he believes that they calculated on avoiding all difficulties on that ground by carrying the girl out of the State, as Thompson was about to remove from the State. This defendant denies that it ever was his intention to commit a fraud on the complainants, either by imposing property on them to which, he had not a title, or by contracting debts which he did not *40mean to pay ; 'that the complainants, before they, trusted him, were well acquainted with his circumstances, and the sale of the girl was' made on-the urgent importunity and repeated threats'of the complainant Beck,; that when these debts, were contracted he expeéted to have been allowed time to ■ make payment, and he belivés that lie would have been able to have done so, without interfering' with his wife’s separate estate, further than hiring-,out the negroes.- This defendant denies fraud, &c..

The; case was heard before’ his honor Chancellor Harper, (February, 1830,) who' ordered and decreed that so far as the defendant Dixon Thompson in his answer, (to the original bill,) by way of pleading, relies on his being a purchaser for valuablé consideration, without notice, the plea be over' ruled. ,And it is further ordered, that it be'referred to the Commissioner to en-quire and report, whether the sale of the slave, mentioned, to the defendant, was the áct of the complainant without the control of her husband; whether the said sale of the said slave was necessary to the support of the complainant and her children, and whether the proceeds of the sale, or what part' of them were applied to such necessary support; reserving the equities that may arise-on the.coming'in.of such.report.”

Under this -decree, evidence was taken' before the Commissioner, who reported, “ that he was inclined to believe that the complainant was in some measure influenced by her husband to sign the bill of sale to Thompson for the negro in question, though she w.as placed, under no actual restraint, but notwithstanding her unwillingness to sign the bill of sale, that he (the Commissioner,) was induced to think that the sale of the slave was necessary to the support of the complainant and her children, as it appeared they managed badly, and -she and her children must have suffered, if they had not sold some of the property.- That-the evidence was satisfactory-to him- that they had no other property which could have been sold without selling their provisions. That the"evidence' went strongly, but not positively, to prove that a ■ considerable portion of the *41proceeds of the sale were applied to the pa3nnent of debts contracted for necessaries, to wit: — To Mr. Hewlett for 50 bushels corn, $50; to Mr. Beck for 50 bushels corn, $50; shoes, a saddle, &c., the amount of which did not appear; that $40 was borrowed by Polly Calhoun from Beck, but it did not appear how it was appliedit was proved by one witness that Mrs. Calhoun said that she always intended that Mr. Kennedy should be paid.”

To this report exceptions were filed on the part of Mrs. Calhoun, in substance negativing the report.

The case was heard before Chancellor DeSaussure : whereupon his Honor ordered and decreed, that the bill of the complainant, Polly Calhoun, be dismissed. The Chancellor made no order on the cross bill.

From this decree the complainant, Polly Calhoun, appealed, and moved the Court of Appeals to reverse or reform the same oh the following grounds :

1. Because the complainant, Mrs. Calhoun, had no power to sell the slave in question.

2d. Because the sale to Thompson was not the voluntary act of Mrs. Calhoun.

3d. Because the sale of the slave was not necessary to the support of Mrs. Calhoun and her children.

4th. Because the proceeds of the sale were not applied to such necessary report.

5th. Because the decree is contrary to evidence, law, equity, and good conscience.

*Patterson,*for appellant.

Bonsall, contra.

(a.)

) *Reid*vs. *Lamar, 1 Strob. Eq.*27.

The opinion of the Court was delivered by

O’Neall, J.

At common -law a feme covert was regarded as legally incapable of making any contract which would bind her. This disability was intended to be her protection. It was founded on the notion that her existence was legally merged in her husband. They were regarded in law as one *42person. She was supposed to have no will of her own, and hence' was incapable of charging herself by contract. Neither could she have a personal estate which did not vest in the husband, *jure mariti:*froto her teal estate, he was during coverture entitled to the receipt of the rents, issues, and profits, and after her death.he was entitled, if there was issue of the marriage born alive, to hold during his life, by the curtesy, the whole of her land, of which he had actual possession during the coverture. In- the progress of time, and out of- the refinements, and perhaps the necessities of society, it was' permitted-in Equity that the wife should- have both real and personal estate separate from her husband: Incidental to this right of property, it was held, with different modifications at different times, that she was as to it,.a feme sole, with'power to charge or dispose of it. *Fettiplace*vs. Gorges, 1 Ves. jun. 48. From 'the English cases, it may be deduced, as a general rule, that a feme covert, unless restrained by the -deed of settlement, "had the right, to. dispose of, or charge her'separate personal estate, as a feme sole ; for in Pybus vs. *Smith,*1 Ves. Jun. 193, Lord Chancellor Thurlow states the rule to be that “she (a feme covert,) is sole, so far as she has a power of appointment, _ but with any limitations in the deed giving her that power.” In *Jackson*vs. *Hobhouse, 2*Meriv. 483, where, by a settlement, the interest óf a sum of money was to be received to the separate use of the wife, with a proviso against the wife’s assigning of otherwise disposing of the interest in anticipation ; the wife • ' and her . husband ■ in order to obtain an annuity, assigned the future interest, and the Lord Chancellor Eldon held that the clause against an assignment in anticipation was good, and restricted .the power of the wife over her separate estate. He says, “ it is now too late to.contend against the validity of a clause in restraint of anticipation.” In *Jacques*vs. *The Methodist Episcopal*Church, 17 Johns. R. 548, the Court of Errors of the State of New-Yorlc, held that a feme .covert, with respect to her separate property, was. tq be regarded in a Court of Equity as a feme sole, and might dispose of it without the *43assent and concurrence of her trustee, unless she was specially restrained by the instrument under which she acquired her separate estate. In the same case, 3 Johns. Ch. 113, Chancellor Kent, after a full review, and elaborate examination of all the cases, comes to the conclusion, that a feme covert, in Equity, as-to her separate estate, is to be regarded as *a feme sole, sub modo, or to the extent of the 'power clearly given by the settlement.*In *Ewing*vs. *Smith,*3 Des. 417, a majority of the Court of Appeals in Equity in this State held, “ that a married Avoman who has a separate estate cannot part with it in an}r Avay without an examination; that as by marriage she loses all the powers of a feme sole, a separate estate does not confer all those powers on her; and that therefore, the power of appointing such estate, must be expressly given, and the mode prescribed, be strictly pursued.” Since this decision, the rule has been considered settled as laid down in it, and if I was disposed to doubt its correctness, I should not feel at liberty to lay down another. But I concur fully in its wisdom. To permit any other, would be to defeat every separate estate; for, to the kindness, force, or a necessity created by the acts of an improvident husband, most women tvould at some period be compelled to yield up the property which the kind and prudent care of parents or friends, had intended as a permanent provision for herself. The rule laid down in *Ewing*vs. *Smith,*would dispose ’ of this case; for the wife in the deed from which her separate estate is derived, has no power of disposition, and her alienation has been without examination in the Court of Equity. If the deed had merely given her a separate estate without restriction, and she had voluntarily aliened for the .necessary support of herself and her children, her sale might have been sustained, for in that case, the Court of Equity would have permitted the sale to have been made, if it had been applied to for that purpose; and acting upon the Equity maxim, that it considers that as done which ought to have been done, the sale would have been confirmed. In the deed in this case, there is, however, an express restriction upon the power of the wife; *44after conveying the property in trusp'for the complainant, and the heirs of her body, the) deed provides that it shall not be “subject to any alienation whatever, in case of her marriage) ’and excluding forever every, claim, or pretence of claim, by her húsband to the said slaves.” This, according to the English cases, ..and the decision of the New-York Court of Errors in .the case of *Jaques*vs. *The Methodist Episcopal*Church, is such a restraint upon the, power of the wife over her separate property as would prevent her alienation from taking effect. If this restraint had been imposed, on a donee not laboring under any legal disability, it would, even then, prevent an alienation; for unless contrary to. some rule of law, a donor has the right to impose’’such limitations and restrictions on his gift'as he may think, proper. In the case of a feme covert, who, -at common law, is considered as incompetent tó do any legal act of alienation, it cannot be that she would have greater powers than one, Avho is under no legal disability. But it is said, that the sale was necessary to'her support, and hence it ought to be sustained. The'Court of,Equity has no power either to make-or confirm a sale of a separate estate, which, .by the deed, creating it, is expressly prohibited from being sold. On. the facts, however, I ■ should be disposed to think (if this restriction in the *deed did*not exist) that the, sale could not be siistained. In such a case, the sale must ha.vé been the voluntary act of the wife, and for .such-purposes as the .Court, on examination, would have ordered to be made. In this instance it.appeárs that the wife, by the persuasions of the husband and the threats of Beck,, did sign the bill of sale. It is true the Commissioner and Chahcel- ’ lor both conclude she was under no actual constraint — by which I understand there was no legal duress. This, however, was not necessary to be'shown, to avoid ■ h'er acts. , In-law she is •always, in the presence of her husband,'supposed to act by his compulsion, and her act is, therefore, considered as his. It was for those undertaking to sustain the sale to show it to be the result of her own will. If it arose from the persuasion of the husband,-who has been pronounced by the Chancellor to be of *45that class “ who are described as worse than an heathen,” it was his sale, and not hers; but when we add to this that the officer of the law was saying to her, “If you do not sign the bill of sale, I will levy executions on your cow and horse,” it would surely be asking a great deal to require a Court to pro-' nounce a sale so made by a feme covert to be her own voluntary act. The propriety of the sale, too, has not been made out: for all the debts, to pay which the slave was sold, were debts contracted by the husband. It is possible that they were for supplies for his family; but the credit was given to him, and not to his wife, and in such a case it would be in vain to ask an order for the sale of the wife’s separate estate from the Court of Equity. The report of ’the Commissioner is no answer to the inquiries which Chancellor Harper directed him to make. It was his business to examine as to the points submitted to him, and give the Chancellor the benefit of his judgment upon them. If his report can be regarded as deciding any thing, it must, instead of being against the complainant, be considered in her favour : 1st. In deciding that the bill of sale was executed unwillingly by her; 2d. That the proceeds of the sale were applied to the payment of debts contracted by the husband before the sale; and 3d. That a part of those debts were not necessary to the support of the complainant.

In every point of view, 1 think the sale of James J. Calhoun and wife, of the slave Jemimah, to Dixon Thompson, the defendant, cannot be sustained. It is, therefore, ordered and decreed, that the decree of Chancellor DeSaussure be reversed : that the defendant, Dixon Thompson, do delivér up the slave Jemimah, and her child or children (if any), and account for her hire to such trustee as may be appointed by the Court of Equity for Barnwell District, for the complainant, and that the said Dixon Thompson do pay the costs of this suit.

Johnson and Harper, JJ., concurred.

*Decree reversed.*