#### *Hastie*& *Nichol*vs. *R. L. Baker and wife*& *others.*

A deed of marriage settlement provided, *inter alia,*that the trustees should permit the husband 1 to receive the rents, income and profits’ of the settled estate, (which was large) ‘for the joint maintenance of himself and wife during their joint lives, but not subject to his debtsduring the coverture, the husband contracted a debt for supplies furnished him for the use of himself and family, and the creditor filed a bill against the husband, wife and trustees for payment of this debt out of the settled estate, and the husband desired that it should beso 'paid: *Held,*that the settled estate was not liable; that the husband, having ample means, for the joint support of himself and wife, from the rents, income and profits of the estate, could not, by contracting a debt for such support, subject the estate, (as to a debt due by the estate) to the payment thereof. *(a*)

*209*Before*DargaN, Ch. *at Charleston, February,*1850.

The decree of his Honor, the Circuit Chancellor, is as follows.

The deed of marriage settlement between Robert L. Baker and Isabella, his wife, contained a provision, by which the trustees were to permit the said R. L. Baker to receive the rents and profits of the whole estate for the joint use and maintenance of himself and the said Isabella, during their joint and natural lives, not subject, however, to the debts, contracts, or engagements of the said R. L. Baker. The deed proceeded to provide, in this connection, that if any creditor of the said R. L. Baker should attempt to charge the said income or profits with any debt of the said R. L. Baker, *then,*from the issuing of any process so to charge the same, (he estate was to be held in trust, for the sole and separate use of the said Isabella. The interest of R. L. Baker in the estate, under the operation of these provisions, was a shifting use. If any creditor has, or shall attempt to make the income or profits liable for the debt of R. L. Baker, the use has, or will, according to the fact, be transferred, and the said Baker be divested of all right, thenceforward, in the profits and income of the estate. This shifting of the use, however, would be prospective, and would not operate to divest the rights of Baker in any arrears of profits or past income, that might be in the hands of the trustees. And his creditors would be entitled to be subrogated to all his rights, (whatever they might be) in the profits and income of the trust estate. But it was intimated on the trial, that such an account in this instance would be fruitless, and, therefore, that remedy was not sought.

The complainants, however, deny that they have sought in this bill, to make *the profits and income*of the estate of Mrs. Baker liable for his debt, but contend that they have sought to *210make the *corpus*of the estate subject to *its own liabilities;*to debts of Baker, it is true, but, nevertheless, according to their shewing and position, debts which, by the equities of the case, attach upon the *corpus*as well as the income of the estate. This is the ground upon which the complainants have filed their bill and rest their claim for relief. That the *corpus*could never be made subject to the payment of Baker’s debts as such, none will deny. And it is quite clear, that án attempt by a creditor to make the income liable, would *eo instanti,*shift the use, so as to deprive Baker and his creditors in any of the after accruing income and profits. The only ground, therefore, on which the complainants could pretend to rest their claim, would be the assumed liability of Mrs. Baker herself, or some equity attaching through her upon her separate estate.

There are three debts for the recovery of which the complainants have filed their bill. They are particularly described in the report of the Master, and referred to as No. 1, No. 2, and No. 3. No. 1 is a debt contracted by Mrs. Baker with the complainants before her marriage, for goods, wares, and merchandize from their store. There can be no doubt but that the trust estate is liable for this debt. Not only is the income, but the *corpus*itself is liable.

The defendants, Thomas B. Chaplin and Saxby Chaplin, contend, that so much of the trust estate as has been conveyed to their use, is not liable for any of the debts which the complainants set up in their bill, because, they say, they are purchasers for valuable consideration, being within the consideration of the marriage contract. I dissent from this as a legal proposition. They are, it is true, the issue of the wife by a former marriage. But the only persons who are within the marriage consideration, so as to have a right to enforce the contract as purchasers for valuable consideration, are the husband, the wife, and *their*issue. *Osgood*vs. ¡Strode, (2 P, Wms. 145). All others provided for, either directly or by contingency, are volunteers, and their claims are void as against the'demands of the pre-existing creditors of the party settling the property.

*211Though such provisions are voluntary, they are not fraudulent in the main, and where they are made *bona fide,*they would be enforced against subsequent purchasers, as was done in *Jenkins*vs. *Keymis,*(1 Levinz, 150, 237).

The conveyances by Mrs. Baker in favor of the Chaplins, are voluntary, and are invalid against the claims of her creditors, that existed antecedently to the execution of the marriage contract. Such creditors have a general lien upon the whole estate, and there is no right to restrict them in the recovery of satisfaction to any particular portion of the estate, at the option of Mrs. Baker, or of any other of the parties interested. But in order not to disturb, unnecessarily, any of the family arrangements, and with the view of respecting the rights of all parties, so far as it can be done consistently with the paramount right of the creditors, I shall direct that this debt of the complainants shall be satisfied out of the sale of the negroes assigned for that purpose, by the deed of June, 1845, which it seems has never been carried into effect.

The complainants’s remedy as to this debt (No. 1) is not to be limited to that property, if, by any misadventure, it should not be forthcoming.

The next claim of the complainants which I will consider, is that which is described and referred to in the Master’s report as No. 3. It arose in this way: — it was a debt of Thomas B. Chaplin, and was secured by a sealed note, and Mrs. Baker was the surety . Suit was brought upon the note ini the Court of Common Pleas against Thomas B. Chaplin, and judgment recovered and entered up thereon. In the estimate of the' amount due upon this note, a mistake occurred, and the judgment was entered up and execution was lodged for less than the amount actually due upon the note. The property owned by Thomas B. Chaplin was sold by the sheriff of Beaufort district, to satisfy this and other executions against him. Thé amount due upon the face of the execution was satisfied by the sale, and some portion of the proceeds of the sale was applied to junior executions, and the whole amount of this debt would *212have been satisfied by the sale of the property of the principal, but for the mistake which has been alluded to. The amount remaining due upon the note, which was not carried into the execution, is, according to the Master’s report, and up to the date thereof, $106 82. The failure to collect the whole debt from the principal, has, therefore, evidently arisen from the mistake and *laches*of the creditor, and I think that this would have the effect of discharging the surety.

There is another objection to this claim. The complainants have come to this Court to correct the mistakes of the court of law in entering up its judgments and issuing its executions. It is the province of the court of law, as well as the court of equity, to correct its own errors. And the jurisdiction of the court of law is .most ample for this purpose. The complainants should have made application to the Court where the judgment was rendered, to reform its errors, and to correct the execution.

The judgment rendered by the court of law is fully satisfied. And that, as the case stands, is a satisfaction of the claim. The complainant has no right to open the judgment of the court of law for a re-hearing before this Court, and to obtain further redress than that which has been afforded by the tribunal where it was originally heard.

For these reasons, my judgment would have been against the allowance of this claim. But Mrs. Baker, though she objected in her answer to the payment of the balance due upon this debt, on this trial waived all objections, and consented that it should be paid out of the trust property, provided it was paid out of the negroes assigned for the payment of debts by the deed of June, 1845. As she has an unlimited power of disposing of the trust property, and consents that a decree shall be entered against her for the balance of this debt, on the condition above named, the Court is indisposed to interpose an objection which she has waived. It is accordingly so ordered and decreed.

I come now to the consideration of the debt or claim of the complainants, which is referred to and described as No. 2, in *213the Master’s report. Its present form is a judgment against R. L. Baker. The cause of action is a store account against R. L. Baker, due the complainants, and run up against Baker after the marriage. It does not seem that any credit was given to Mrs. Baker or the trustees. The complainants charge, that the account was for supplies furnished Baker for the use of himself and family. Mrs. Baker, in her answer, does not deny this allegation, and Baker, in his answer, admits its truth. I shall consider the question arising on this claim, as if the statements of the bill in relation thereto were true and established by the evidence.

A strong objection which strikes my mind *in*limine, against the admission of the claim, is founded upon the provisions of the deed of marriage settlement. By these, Baker was to be permitted to receive the whole profits and income of the estate for the joint support of himself and wife during their joint lives. The estate was very large, and the income was certainly sufficient to afford a proper maintenance to Mrs. Baker. And if he, misapplying the income and profits, instead of appropriating them tor her support, chose to contract debts in his own name, and on his personal liability, for her support, I do not perceive any imaginable ground of equity by which to charge her separate estate with such debts. If A. places funds in the hands of B. for certain specified purposes, to purchase family supplies for example, and B appropriating the funds to his own use, buys the supplies in his own name and on his own credit, there is no legal or equitable obligation on A to pay for the same. This is precisely the case *here ;*Mrs. Baker has supplied her husband with the most ample means of furnishing her with supplies for her support. He, or the trustees, or both together, have done one of two things ; they have either furnished supplies in an extravagant manner, and beyond what the income of the estate would warrant, or the funds dedicated to this purpose have been misapplied. In neither case is there any equity against the wife’s separate estate, to pay a debt contracted by the husband in his own name for the support of the family.

*214If it was the trustees who misapplied the income, it was equally the husband’s *laches*and misapplication, for he had the right to receive and control the whole income. It does not appear that Mrs. Baker had any knowledge of the fact, that the supplies in question were furnished by the complainants on a credit. For all that appears, she may have supposed that the current expenses of the family were defrayed out of the current income of the estate.

But 1 will go farther, and say, that supposing this debt to have been contracted personally by Mrs. Baker, in her own name, on her own credit, and for her own use, still I think that the complainants would have no right to enforce it against her separate estate. There is an essential difference between the law of South Carolina and that of England, in regard to the power which a married woman possesses over property secured to her separate use. The general rule in both countries, is, that a married woman is incapable of binding herself by her contracts. In a Court of common law jurisdiction, her legal existence is considered to be so blended with that of her husband, as to place her under the most perfect disability of entering into contracts. Such contracts are null and void, though the wife be living apart from the husband, and in the enjoyment of a separate estate. This is the doctrine of the common law. It was shaken by the decision in *Corbett*vs. Poelnitz, (1 T. R. 5); but it was re-affirmed and re-established in all its pristine vigour in *Marshall*vs. *Rutton,*(8 T. R. 545). Such a thing as a judgment or decree in a court of law or equity, against a married woman, founded upon her contracts made during coverture, to operate against her in personam, is unknown to the law of England and of South Carolina. There has been some modification of the strict rule of the common law, so far as to make valid certain acts of the wife, in reference to her separate estate. In regard to her power of disposing of her separate property, she is, in England, considered as a *feme sole,*and she is only restricted in the exercise of the *jus disponendi*by the limitations expressed or implied in the deed or will by which the separate *215estate is created. She may sell it as her interest prompts, or her affection or fancy dictate. It is now. settled, that she may convey it to her husband, or assign it for the payment of his debts. She may encumber it with her own debts, and, by her contract, give a specific lien upon it. Such a contract, however, creates no personal obligation on the wife, but only affects her separate estate. It cannot strictly be considered a contract, but rather the execution of a power, and depends for its validity upon the source whence the power is derived. Where there is no restriction upon the exercise of the power, the English law implies all these proprietary rights as belonging to a married woman in reference to her separate estate, from the mere fact of its having been given to her sole and separate use.

But the law, as it has been expounded in South Carolina, is essentially different in regard to her power of disposing of her separate estate. *Here*the *jus disponendi*is not implied from the fact that the estate has been given for her sole and separate use. Her power of alienation, or creating encumbrances, rests solely on the reservations to that effect in the deed or will, and they are valid or invalid,-accordingly as the instrument under which she enjoys the estate allows such an exercise of power and control. *Ewing*vs. Smith, (3 Des. 417); *Fraser’s Trustees*vs. *Hall and others,*(1 McC. Ch. 275); *Clark*vs. *McKen-na and wife,*(Cheves Eq. 163). To borrow an illustration from natural science, such conveyances by a *feme covert,*are but de-velopements (from a rudimentary state) of the provisions of the original deed; and they are so far identified that they stand or fall accordingly as they may or may not be a legitimate growth from the germinal power. And to render the appointment of a married woman valid in South Carolina, not only must the power be reserved, but the form which is prescribed must be pursued in its execution.

By the terms of the marriage settlement, Mrs. Baker possessed very large, though not unlimited, powers of disposing of the whole trust estate. Her powers were without limit, as to the objects for which she might make the disposition, but restricted *216as to the form. Even as to the form, her powers were very large. She had the right to dispose of it by will. But *inter vivos, she*could only dispose of it by a deed or instrument in writing, executed in the presence of two witnesses. By an instrument executed after this form, I have no doubt but that she may have given a specific lien by way of mortgage, or charged the trust estate in favor of any creditor she might owe. The deeds of February, 1844, and June, 1845, were obligatory upon her, and would be enforced. But there was no provision in the deed of marriage settlement, that either the *corpus*or the income should be subject to the payment of her debts, so as to bring the case within the principle of the case of *Clark*vs. *McKenna,*(Chev. Eq. 163).

• Even in England, this claim would not be sustained, though the debt had been contracted by Mrs. Baker. In conformity with the doctrine of the wife’s disability to bind herself by her contracts, the Court of Chancery *there*acts upon the principle that *the general personal*contracts of the wife do not affect her separate estate. She may alien and encumber at pleasure, and that without a power reserved for these purposes, as we have seen. But the intention to alien and encumber must be manifest. When she encumbers, or gives specific liens, it must be by contract expressed or implied. If she contracts debts, and does no act indicating an intention to charge the separate estate specifically with the payment of them, the Court of Equity refuses to inforce their payment out of the trust estate; *Duke of Bolton*vs. *Williams,*(2 Ves. Jr. 138); *Jones*vs. *Harris,*(9 Ves. *498); Stuart*vs. *Kirkwall,*(3 Madd. 387; 3 do. 94; 3 do. 418).

In *Magwood*& *Patterson*vs. *Johnston and others,*(1 Hill Ch. 232,) it is said, that the equity on which a creditor comes into this Court to render a trust estate liable to the payment of his debt, is this, that he has advanced his money or given credit to effect the objects of the trust at his own expense, and having * accomplished the objects of the trust at his own expense, he has a right to be put in the place of the *cestui que trust,*or be re-im-bursed out of the trust fund.

*217If, by any misfortune aifecting the income of the estate, Mrs. Baker had been deprived of the means of a comfortable support, and the complainants had furnished her with necessary supplies on the credit of the trust estate, the case of the complainants might have been sustained, on the doctrine laid down in the case last cited. But the case is entirely different. The exigency did not exist. The means of support were ample.— They were placed at the disposal of the husband for the support of his wife. And he, misapplying the funds, obtained the supplies on his personal contract and credit. There is no equity in favor of this demand of the complainants, and as to it, their bill must be dismissed.

It is ordered and decreed, that the complainants recover and have satisfaction for their debt described as No 1, in the Master’s report. It is also ordered and decreed, that this debt have a lien on the whole trust estate not already alienated for the payment of debts, or for valuable consideration; that the ne-groes conveyed in the deed of June, 1845, be primarily liable for the payment of this debt; that the Master sell so many of said negroes as will be sufficient to pay this debt, as also that described as No. 3 in the Master’s report, and the costs of this suit. That the sale *be*for cash, and that the Master pay over the amount due to the complainants, and the costs, to the respective parties entitled to the same.

Defendant, Baker, appealed, and insisted that the debts contracted by Mrs. Baker, particularly during the time that she was separated from him, ought to be paid out of the settled estate, and that the appointment of Mrs. Baker, so far as it went to defeat the rights of those creditors, should be set aside. And he craved relief from personal liability for those debts which were thus contracted to his injury.

*Petigru Sf*King, for Baker.’

Martin, for creditors.

*Treville,*for Mrs. Baker and family.

(a)

 The reporter believes that he has stated the only point which was adjudged by the Court of Appeals. It would seem, from the ground of appeal, that the only question taken before that Court was, as to the liability of the settled estate for the demand treated of in the decree as No. 2; — from the facts stated in the circuit decree, *209that no question could have arisen, as to the liability of the estate for debts contracted by Mrs. Baker; and, as the decision was that the estate was not liable at all for that demand of the plaintiffs, that no question could have been considered, as to the validity of Mrs. Baker’s appointment as against the plaintiffs.

Bor a full understanding of the case, reference must be had to the case of *Roux*vs. *Chaplin,*(1 Strob. Eq. 129.) R.

*Per Curiam.*

This Court concurs in the decree of the Chan*218cellor: and it is ordered that the same be affirmed, and the appeal dismissed.

Johnston, Dunkin, Dargan and Wardlaw, CC. concurring.

*Appeal dismissed.*