#### *Jeannette Wallace and others vs. Robert McCollough.*

If a person, intending to convey lands, request a witness, who is present, to sign his name to the deed for him, which the witness does in his presence ; *qucerel*is the deed sufficiently executed under the statute of frauds to convey the lands ?

Supposing such a deed not to be sufficiently executed to con.vey the lands, then *qucerel*can the person intending to convey subsequently assent so as to make the deed binding on the parties ?

Such an execution is sufficient to pass personal property.

The following description in the schedule to a marriage settlement, to wit. “one tract of land on Fairforest creek, containing 150 acres, more or less,” *held*to include two parcels of land containing two hundred and thirty nine acres, which adjoined, or nearly adjoined, and were regarded as one tract.

*427Where a married woman, whose lands had been settled to be at her disposal after the coverture, joined her husband in conveying the same to purchasers, but relinquished her inheritance only to a part; *held,*that she had a right to requiie her husband to hold the proceeds of the land in which she had not relinquished her inheritance, subject to the uses of the settlement; *aliter*as to the part in which she had relinquished her inheritance.

The schedule to a marriage settlement contained the following description, “ also the following notes of hand, one given by J. P. to the said Elizabeth” (the settlor) “for $1691, with interest thereon — one given by W. for $1500, with interest thereon.” The settlor owned no notes answering to the description, but owned *three*notes on J. P., the principal sums of which amounted to $790, and, the interest thereon to $878,70, making, of principal and interest, SI668,70, and *seven*notes on W. the principal sums of which amounted to $1430,84, and the interest to $1382,59, making, of principal and interest $2813,43. *Held,*that the deed conveyed the whole amount due by J. P. and $1500 of the amount due by W.

Parol evidence would have been inadmissible to shew which notes, or whether all, were intended to be conveyed.

Where specific things are described in a will or deed, the existence and qualities of the things which, it is alleged, pass under the instrument, may be ascertained by parol; and when, in this process, two things are proved to exist, each satisfying the description, an ambiguity, previously latent, is created by parol, which parol evidence may remove.

But where, of two things presented, neither tallies with the description, it is against principle, whatever anomolous cases may be found in the books, to receive evidence which of them was intended, or whether both were intended.

Where a husband used funds in the purchase of slaves which, by marriage settlement, had been conveyed to a trustee for the use of the husband during the coverture, and afterwards to be at the disposal of the wife, and had expressed the intention of taking the slaves out of the State, he was required to give security to refund the principal sum at the expiration of the coverture, and the decree was declared to operate as a lien on his property until he should give the security.

The husband being entitled to the interest and profits of the funds during the coverture, *held,*that the court could not attach a trust upon the slaves, which he had purchased with the funds, further than to declare a lien on them for the amount of the principal.

*Before*Harper, Ch. *at Edgefield, June,*1844.

The decree of his Honor the Chancellor is as follows :— On the 23d of February, 1827, the defendant, Robert McCol-*428lough, and his present wife Elizabeth, then Elizabeth Wallace, in contemplation of their marriage, executed, or attempted to execute, a deed, reciting the said Elizabeth to be seized and possessed of considerable real and personal property, as specified in a schedule thereto annexed, and thereby conveyed the same to William Wallace, in trust, to permit the intended husband to receive the interest and profits, during the joint lives of himself and his wife : after the death of either the whole to be at her disposal.*

*429The intended wife did not sign the instrument herself, but requested a witness who was present to sign her name for her, which she did in her presence.

Among the property specified in the schedule, was a tract of land containing one hundred and fifty acres, more or less, ten *430slaves, *a note of*hand, given by John Parham to the said Elizabeth, for one thousand and six hundred and ninety-one dollars, and *a note of hand*given by William Wallace, for one thousand and five hundred dollars. There was also a note of hand of Martha Sanders, for one hundred dollars, respecting which there is no question.

*431The schedule annexed to the deed is not signed in the usual manner *at the foot.*There is first a caption — “A schedule of lands,” <fec., to which the signature of the parties is affixed ; then follows the schedule itself. The land owned by Elizabeth "Wallace was made of two tracts, adjoining each other, or nearly so, and I should concur with the commissioner, if it were necessary to decide the question, that both passed under the description. There were no such notes of hand as those of Parham and Wallace described in the schedule; but several small notes of Parham and of Wallace respectively, making up in the aggregate about the amount of the respective notes of each as set forth in the schedule. The amount of these notes was after-wards included in single notes, given by the executor of Par-ham and of Wallace, respectively. The defendant afterwards received from the executor of Parham, in part payment of his note, four slaves, valued at $1,200, and the balance in a horse and cash. Of these negroes he has since sold one, Jacob. He received also from the executor of Wallace nine negroes, in part payment ot his note. Of these defendant has sold four at the price of $1,175. The two parcels of land owned by the complainant at the time of her marriage, have since been sold, the one to John Parham, and the other to Clough Ming. Mrs. McCollough joined her husband in both conveyances, but has only renounced her inheritance in the form of the statute, on the latter. The bill is filed by the executor and executrix of William Wallace, in whom the legal title to the personal property contained in the marriage settlement is vested, and by Mrs. McCollough. They claim for the latter the negroes received from the executors of Parham and of Wallace, as being subject to the trusts of the marriage settlement.

They allege their willingness to confirm the sales of the land and negroes mads by the defendant, and pray that he may be declared their debtor for the money for which they were sold, and also for the cash received on the notes mentioned, and decreed to hold the same on the trusts of the settlement. They allege, that besides having sold some of the negroes, defendant has threatened to remove, or is preparing to remove, them to the Western country, and pray that he may be required to give security- for their forthcoming at the termination of his estate.

Defendant contests, on several grounds, the validity and effect of the marriage settlement and schedule. He denies that the notes of Parham and Wallace were assigned by the settlement, *432or that his wife is entitled to the money received on them, or that he is bound to hold the negroes received in part payment of them, on the trusts of the settlement. He denies having intended or prepared to remove any of the negroes out of the State, with a view of defeating the settlement, but admits that on the occasion of his son in-law’s removal to the Western county, he may have expressed himself as if it were probable that he would send part of his force there, and after a while remove himself. He denies, however, that he ever intended to remove the negroes without the consent and approbation of his wife.

Another deed, of the 16th September, 1829, was in evidence, by which the defendant constituted his wife a sole trader. But I did not understand by the bill, or from the argument, that any distinct and substantial claim was made under that deed.

It seemed to be offered as evidence to shew that up'to that time the defendant regarded the property in question as the separate estate of his wife.

The first question is as to the validity of the execution of the deed of marriage settlement, by the complainant, Mrs. McCullough. I think there was not a valid execution, so far as respects the real estate. There are some cases in which a party will be bound by the signing and sealing, of another, in his presence and with- his consent, as where one partner signs and seals for hitnself and copartners in their presence, as in *Ball vs.*Dunsterville, 4 T. R. 313 ; *Burn vs. Burn,*3 Ves. 578. *It*would be otherwise if they were not present. *Harrison vs. Jackson*and others, *7*T. R. 207. But with respect to real estate, by the express provision of the statute of frauds, no' estate or interest shall be assigned, granted or surrendered, unless by writing signed by the party, or his agent *lawfully authorized by loriting.*In the following clause, *respecting executory*contracts in relation to lands, it only requires that the agent shall be *lawfully authorized.*The distinction is pointed out by Lord Redesdale, in *Clinan vs. Cooke,*1 Sch. and Lef. 27, when an estate is to pass by the writing, and .when it is only a contract which does not pass the estate. . It was argued that the defendant is estopped to deny the execution of the deed, by being a party to it. A man may certainly be estopped by his deed, as where he conveys property to which he has no title, and afterwards acquires one. But this instrument does not purport to be a conveyance of any property by the defendant. He signed and sealed it, only to signify his assent to the act of the intended *433wife. But I do not know how his assent to a void act could-render it valid. The conclusion in this case is, that there was no deed as to the real estate. A different construction would defeat the statute altogether. In every case of such execution, it might be said that the grantee was estopped ; for, if not formally a party executing, one is as much estopped by his accepting as by his making of a deed. No doubt, the verbal authority to sign and seal, was sufficient as to the personal estate.

But though not conveyed by the deed, the land remained her estate and inheritance. With respect to the land to which she has renounced her right of inheritance, being converted into money, her husband’s marital rights have attached upon it. As to the other parcel she has still the right of inheritance, and may assert her title after the termination of the joint life estate. But I think, if it appears to be for her interest, she may confirm the sale, and claim the purchase money of her husband. One may adopt the act of a voluntary *agent*— Sarter *vs. Gordon,*2 Hill Ch. 121. If one who is in possession of my property sells it, delivers the possession and receives the price, certainly I may waive my remedy against the vendee, and claim the money of the vendor. He is estopped by his act to allege the want of authority. The decree of this court, confirming the sale, will be conclusive as to the title against the wife and in favor of the husband, and all claiming under him.

An objection was taken to the signing of the schedule, but there is nothing in it. In the case of autograph wills, before our Act of 1824, or of agreements under the statute of frauds, the writing of one’s name in the caption or introduction, has been held a sufficient signing. But this is a regular and formal signing. It is not unusual to sign in the margin.

Besides, as observed in argument, a schedule is only required in favor of creditors. If this schedule had been written in a book, or any where else, being expressly referred to by the instrument, it would have become a part of it, and evidence between the parties. Per Ld. Redesdale in *Clinan vs. Cooke,*1 Sch. and Lef. 33; *Hatcher vs. Hatcher,*1 McMul. Eq; 319.

An objection was taken to the want of recording in proper time, but it is hardly necessary to say that though not recorded, it is good between the parties.

The next question I shall consider is one of fact, whether the several notes of Parham and Wallace passed under the description of “a note” of each of these parties respectively.

*434Parol evidence is always admissible to shew to what subject matter the terms of a description apply. As laid down in the case of *Pell vs.*Ball, decided by the Court of Appeals, if no subject can be found to which the terms of a description can apply, in their proper, strict and primary sense, evidence may be received of that to which they apply in a looser, secondary or popular sense. I know no rule upon the subject, except that the evidence must be such as to satisfy the mind that the thing in question, and no other, was intended. My mind is so satisfied, and I concur with the commissioner. The taking of the notes of the executors of Parham and Wallace, in the name of himself and wife, was equivalent to an admission that the former notes were not his absolute property by virtue of his marital rights.

A question was made whether the negroes received by the defendant from the executors of Parham and Wallance are subject to the trusts of the settlement. Of this there can be no doubt. If a trustee, (and a tenant for life isa trustee) purchase with that which can be clearly identified as the trust fund, though in his own name, a trust results of course. But I think in this case— at all events as to the negroes received from the executor of Wallace — there was a sufficient declaration of trust. The receipt for the negroes, in the handwriting of defendant, was signed by his wife alone. By receiving the negroes under that receipt, he admitted his wife’s right in them.

I think the defendant must give security for the forthcoming of the negroes after his death. The rule is, that if by any acts or expressions of the tenant for life, it appears that the rights of the remainder man are endangered, the former will be compelled to give security. *Lattimer vs. Elgin,*4 Dess. 26. The selling of part of the trust estate is evidence enough that the residue is endangered. The defendant alleges that he has not sold any of the negroes originally included in the settlement, leaving it, I suppose, to be inferred, that he sold those subsequently acquired, under a mistaken notion of his-rights, believing them to be his own. But, as I have said, having obtained possession of them by virtue of his wife’s receipt, he admitted them to be hers, and 1 must conclude that he sold knowing them to be part of the trust estate. He admits, too, that he did express the intention of taking or carrying them out of the State. I think, as a general rule, the court will not permit trust property to be taken out of the jurisdiction without security. It is true, that he states he did not intend to do so without his wife’s consent. But being *435*sub potestate viri,*she could not consent, unless such power were given her by the settlement. A trustee is created for the purpose of protecting her rights, even against her own consent. If she should consent, the court would still interpose at the instance of the trustee, who might incur very serious responsibility if he should fail to interfere, and the property should after-wards be lost.

It is therefore ordered, adjudged and decreed, that the defendant give bond to the commissioner, for the forthcoming of the slaves aforesaid, as well those received from the executor of John Parham and the executor of William Wallace, as those specified in the marriage settlement aforesaid, with sufficient security in double the value of the said slaves, to be estimated by the commissioner, at the termination of his estate therein ; that the sale of the tract of land conveyed by the defendant and wife to John Parham, the sale of the slave Jacob, and of the four slaves sold to Harrington, be confirmed, and that the. defendant is indebted to the trust estate of his wife in the amount for which the said land and slaves were sold, and also for the money received on the notes specified in the schedule annexed to the marriage settlement, over and above the price of the slaves received from the executors of Parham and of Wallace.

The defendant appealed, on the following grounds,

1. Because the deed of marriage settlement was not executed by the complainant Elizabeth McCullough, and the signing of her name and the sealing thereof by Cloe M. Sanders, although in her presence, was void, she, Cloe M. Sanders, having no power of attorney under'seal, authorizing her to execute the deed.

*2.*Because Cloe M. Sanders, if she acted as the agent of, and personated, Elizabeth McCullough, was thereby rendered incompetent to attest or prove the execution of the deed.

3. Because the marriage settlement is void for uncertainty in the description of the property, inasmuch as the schedule is not signed by any one, and it does not appear when, by whom, by whose authority, or with whose consent, it was drawn out and appended to the deed.

4. There having been two tracts of land belonging to Elizabeth McCullough, answering the description in the informal schedule, and it being uncertain which was intended to be conveyed, neither can pass, and certainly not both.

5. The complainant Elizabeth McCullough having joined in the deed, and relinquished her inheritance of the land sold to *436Parham, estops *her from*setting up any claim to the purchase money, as trust property covered by the marriage settlement; and if the legal title was in Wm. Wallace, the trustee, the deed to Parham was void, and that title still remains unimpaired in William Wallace the trustee, and therefore the defendant should not be held accountable for the proceeds of that sale.

6. Because there was no evidence of the existence of any such notes as the two described in the schedule, as those on John Parham for $1,691, and on Wm. Wallace for $1,600, and if there were such notes they never came to the possession of the defendant. Hie other nqtes on Parham and Wallace, which the defendant collected, not answering the description, are not included in the schedule, and therefore the defendant cannot be held accountable for the money or property he received in payment of them.

7. Because the decree is erroneous in charging the defendant with the negroes he received from Parham and Wallace, in part payment of the notes; for, assuming that the notes were correctly described in the schedule, and that the defendant had collected them, still the defendant, by the terms of the deed, being entitled to the use of them — that is, the capital sum, during life — whatever advantageous trades he made on that capital was for his own benefit, and not for the benefit of the remainderman, Mrs. McColloügh, and therefore he can be held accountable only for a like sum in cash or notes, without interest or profits.

8. Because the case made by the admission of the defendant in his answer, there not having been any evidence upon the subject of removing or endangering the property, was not such as to require or authorize security from the defendant for the forthcoming of the property, and if insisted on, will *amount to*a forfeiture of his estate.

The complainants also appealed, on the following grounds.

1. That the defendant should, under the circumstances, have been held accountable for the sum at which he sold the tract of land to Clough Ming.

2. Because the defendant should have been required to give bond and security for the forthcoming, at the termination of his interest therein, of the balance of the money arising from the notes embraced in the schedule, and from sales of the land and negroes which he disposed of.

*Bauskett,*for the motion,

as to the right of the complainants *437to charge the defendant with the proceeds of the land, cited 2 •Kent, 614; 9 Wend. 16 ; P. L. 381 ; Paley on Ag. 133 ; 4Bing. 283 ; 4 Kent, 451. On the claim for the amount of the notes, he cited 3 Stark. Ev. 1021 ; 4 Dow Pari. Cas. 65; Wigram, pi. 34, pi. 183, pi. 131, pi. 147, pi. 161, pi. 163. pi. 189 ; 3 Yes. 306; 2 P. Wms. 140; 2 Bay, 541; 1 N. *&*M’C. 45, 431; 1 M’C. 41; 1 M’C. 258; 3 M’C. 269 ; Sp. Eq. 348. On the question whether the court could attach a trust on the negroes purchased with the funds, he cited Lewin on Trusts, 201.

*Wardlcw,*contra,

contended that the deed was well executed. 1 Shep. Touch. 56 — 7 ; Cruise, chap. 2, § 74 — 5 ; 1 Liv. on Ag. 35 ; 2 Caine Cas. 1 ; 3 Yes. 578 ; Story on Ag. § 51 ; 4 T. R. 313 ; 7 lb. 207 ; 3 Yes. 57 ; 9 Johns. R. 285 ; "4 Mass. R. 232 ; 4 Barn. *&*Ad. 647 ; 8 Yes. 185 ; 1 Camp. 518 ; Sug. on Yend. 71 ; 9 Yes. 251; Sp. Eq. 233 ; Prec. in Ch. 405; Chev. 271 ; Story on Ag. § 50. On the question as to the notes, he cited Stark, on Ev. 1021, 1025 ; 1 T. R. 701 ;' Phil. Ev. 533; Amb. 374 ; 1 M. *&*S. 299 ; Sp. Eq. 83; Wigram, pi. 70, pi. 186; 4 Barn. *&*Ad. 785 ; 5 lb. 51 ; 1 P. Wms. 286 ; Wigram, pi. 67; 4 Johns. Ch. 607 ; 1 Paige Ch. 291; 2 Danna, 47 ; Wigram, pi. 181. Have the complainants the right to follow the funds ? Story Eq. § 1210, 1260-1; Lewin on Trusts, 280, 290.

Griffin, same side,

on the question whether the deed was well executed under the statute of frauds, cited 2 Bl. Com. 307; 3 Ád. *&*Ellis, 117; 43 Eng. Com. L. R. 658 ; 2 Stark. Ev. 271. On the question relating to the notes, he cited 5 Stat. 203; 1 Sim. 166 ; -2 Yern. 593; 6 Madd. 192; Gress. Eq. Ev. 200, 209 ; 4 Russ. 581; 8 Rep. 155. On the question whether the trusts of the settlement attached on the property purchased by the defendant, he cited 4 Ves. 116 ; 2 Fonb. 118-9; 1 Story Eq. 160, 169 ; 1 Fonb. 35 ; 2 Story Eq. § 768.

Preston, in reply,

cited Amb. 415 ; 2 Bro. C. C. 232; Story Eq. § 1210, 1211; Story Eq. 1527-8-9, 1260; 1 M’C. 258.

*

The marriage settlement, the schedule theieto, and the report of the commissioner, being frequently referred to in the decrees, and being necessary to a clear understanding of the case, are here given in full. R.

*Marriage Settlement and Schedule.*

South Carolina, )

*Union District.*$

This indenture tripartite, made the twenty-third day of January, in the year of our Lord one thousand eight hundred and twenty-seven, between Robert McCollough of the first part, Elizabeth Wallace of the second part, and William Wall >ce of the third part. Whereas, a marriage contract is intended shortly to be had and solemnized between the said Robert and Elizabeth — and whereas, the said Elizabeth is seized and possessed of considerable real and personal estate, consisting of those lands, tenements, personal property and other matters and things, as by reference to the schedule hereunto attached will more fully appear ; and it has been agreed that the said Robert should, after the said intended marriage, have, receiveand enjoy, during the joint lives of the said Robert and Elizabeth, the interest and profit of the said lands, tenements, personal property ; nd other matters and things in the said schedule set forth; that the same, and the profits, after the death of either of them, should be at the disposal of the said Elizabeth, notwithstanding her coverture. And whereas, it has also been agreed that in case the said Elizabeth should, after the intended marriage, happen to survive the said Robert, she would not claim any part of the real or personal estate whereof the said Robert should be seized of or possessed at any time during coverture, by virtue of the right of dower or otherwise. Now this indenture witnesseth, that in pursuance of the before recited agreement, and in consideration of the sum of ten dollars to the said Elizabeth paid by the said William Wallace, by and with the privity, consent and agreement of the said Robert, testified by his being made a party to and his sealing and delivery of these presents, hath granted, bargained and sold to the said William Wallace, his executors, administrators and assigns, all the land, tenements and other property, real and personal, agreeable to schedule hereunto annexed, to have and to hold the same unto the said William Wallace, his heirs,executors and assigns; in trust,nevertheless, and for such purposes as have been heretofore specified and set forth, the same being completely in trust as aforesaid.

In testimony whereof we have hereunto affixed our hands and seals, on the day first above written, in the presence of

Cloe M. Sanders, ^ Robert McCollough, [l. *s.]*

Hancock Smith, > Elizabeih Wallace, [l. s.j

J. McKibbin. 3 Wm. Wallace. [l. s.]

*429A schedule of -the lands, tenements, hereditaments, personal property, choses in action, belonging to Elizabeth Wallace, to be attached to a deed of trust hereunto annexed, being duly assigned by the parties being therein concerned, on the same day and year therein mentioned.

Cloe M. Sanders, } Robert McCollough, [l. s.]

Hancock Smith, > Elizadeth Wallace, [l. s.]

J. McKibbin. *j*Wm. Wallace. [l. s.]

One tract of land on Fairforest Creek, Union District, containing 150 acres, more or less — one negro man named Will, one negro man James, one negro man Ben, one negro man Ephraim, one negro boy named Sam, one negro boy named Alexander, one negro boy Jacob, one negro woman named Phillis, one negro woman named Minda, one negro girl Unice— also the following notes of hand, one given by John Parham to the said Elizabeth, for one thousand six hundred and ninety-one dollars, with inter est thereon — -one given by William Wallace for one thousand five hundred dollars, with interest thereon — one note of hand given by Martha Sanders for one hundred dollars, with interest thereon.

State oe South Carolina, >

*TJnion District.*$

James McKibbin personally appeared before me and mad? oath that he saw Robert McCollough, Elizabeth Wallace, by her agent Cloe Sanders, and William Wallace, sign and acknowledge the within deed of trust to William Wallace, for the uses and purposes within mentioned, and that himself, Hancock Smith and Miss Cloe M. Sanders witnessed the due execution thereof. J. McKibbin.

Sworn to and subscribed before me, this 30th January, 1827.

J. Rogers, Q,. U.

Recorded January 4, 1827.

*Report of the Commissioner.*

The matters of account in this case having been referred to the commissioner, at the last term of this court, reserving the equities of the parties, I beg leave to report, that in the schedule attached to the deed of marriage settlement, “is included” “a tract of land on Fairforest Creek, Union District, containing one hundred and fifty acres, more or less.” According to the evidence of Messrs. Rice and Dogan, Mrs. McCollough, before and at the time of her marriage, owned a body of land on Fairforest Creek, Union District, containing two hundred and thirty-nine acres; this body, it seems from the re-survey and grants taken out after the marriage, in the name of Mis. McCollough, was in two parcels, but from the proof they either adjoined, or so near it as to be regarded as one tract. These tracts were sold by defendant — the one to John Parham for $700, the other to Clough Ming for $500. It seems that these tracts were the only land owned by Mrs. McCollough. I am satisfied that these tracts were regarded as one, and is the land referred to in the schedule attached to the deed of *430marriage settlement. The defendant therefore is chargeable with $1,200 received from the sale of said land. The defendant admits that he received the ten negroes named in the schedule attached to the deed of marriage settlement.

In the schedule is set forth anote on John Parham for $1,691, with interest. It appears from the evidence, and a receipt of O’Neil & Spencer, attorneys at law, given to Robert McCollough, that he placed in their hands three notes for collection on John Parham; one for $295, due 1st May, 1804 — one for $300, due 21st Aug., 1810, and the other for $195, due 7th Feb., 1822. These notes were payable to Elizabeth Wallace. And it appeared in evidence that a suit was brought in Union District, on a new note, supposed to have been substituted in place of these notes, by *Robert McCollough and Wife vs. executors of John Parham.*The defendant admits the receipt of the money collected in this suit, and also that he received from executors of John Parham in part payment thereof four negroes, viz: Jacob, Anderson, Lindy and her child Ephraim, at $1,200, and the balance in a horse and cash. Jacob was sold by defendant for $400. These notes amount, in principal and interest, at the date of the deed, to $1,668 70, and I am satisfied that these notes were intended to be described in the schedule.

In the schedule is mentioned a note on Wm. Wallace, for one thousand five hundred dollars. It appears that the defendant received nine small notes, all payable to Elizabeth Wallace by Wm Wallace The principal of these notes amount to a small sum over $1,700, but from the statements in writing, receipts and memorandums of settlements between the parties, it appears that these notes were regarded by the defendant as the property of his wife, and I am satisfied that these notes were designed to be described in the schedule. It appears that these notes amounted, in principal and interest, at the date of the deed, to $3,224 70, and the defendant admits that in part payment thereof he received from the executor of Wm. Wallace nine (9) negroes, at the price of $3000, which he has now in his possession, except four, which he sold to Harrington for $1,175. The defendant admits the receipt of the note of Martha Sanders for $100, due 16th March, 1825, and that he collected the money.

From the foregoing statement it will be seen that the defendant received on John Parham’s notes, $1,668 70

Defendant received on Wm. Wallace’s notes, 3,224 70

From Martha Sanders on note, 112 54

From sale of land, 1,200 00

Amounting in the aggregate to $6,205 94

All which is respectfully submitted, by

S. S. Tompkins, C. E. E. D.

*Curia, per*Johnston, Ch.

In announcing the judgment of the court in this case, I am embarrassed by those difficulties which a Judge must always experience to whom is assigned the duty of exhibiting the reasons of a decision resulting from a combination of the widely differing opinions of the several members of the tribunal, none of which exactly coincide with his own. It is hardly to be expected that I shall be able to put forth the reasons of my brethren, in which I do hot concur, in *438the same clear light with which they presented themselves to their own minds ; for the plain reason, that their failure to convince me, is demonstrative proof that I do not so fully apprehend them. But I shall endeavor, as faithfully as I can, to disclose the opinions entertained by my brethren, as well as those entertained by myself, on the several questions discussed bycoun-•sel; taking care to distinguish between the questions^decided and those left undecided by us.

The first question is, whether the marriage settlement was sufficiently executed by Miss Wallace to vest the lands in the trustee; and this is not determined, a majority of the Judges not having been found on either side of the question.

The signature was by Miss Sanders, in the presence and by the direction of Miss Wallace.

The first section of the statute of frauds, (Rob. on Frauds, 240, book 1, chap. 4,) declares that *“all leases,*estates, interests of freehold, or terms of years, or any uncertain interest of, in, to or out of any messuages, manors, lands, tenaments or heredit-aments, made or created by livery and seisin only, or by parol— and not put in writing and *signed by the parties so making or creating*the same, or *their agents*thereunto lawfully *authorized by*writing, shall have the force and effect of leases or estates *at loill only.”*

A portion of the court is of opinion, that whatever would, at common law, have amounted to a signing by the party, is a good signing by the party under the statute ; that at common law, no doubt could have been entertained that a signature for the party, in his presence and by his direction, was attributable to him as his own signature ; and that the statute has, in no respect, altered this rule of law. That the statute has simply required the party to sign the conveyance, but has not defined what shall amount to a signature on his part — leaving that to be determined upon common law principles. That this construction of the statute is countenanced by the cases cited by the Chancellor in his decree, where the signing of one partner in the name of the co-partnership, in the presence and with the consent of his copart-ners, has been held a good execution by them — -and that the sanction of such a practice leads to no greater danger of the fraud and perjury intended to be avoided by the statute, than the cases which have been held to be in accordance with its provisions ; such as the party’s making his mark, or printing or stamping *439his name, or subscribing by merely holding the pen while a third person writes his name.

On the other hand, an equal number of us hold, with the Chancellor, that under this section of the statute, no subscription can be attributed to the party as his own, unless he personally and physically engages in or contributes to the act. The statute requires him to sign himself, or if he signs by an agent, the agent must be authorized in writing. When another person subscribes for him, that person is his agent, whether the act be done in his presence or out of it. The only difference between an agency exercised in the presence and one executed in the absence of the principal, is in the evidence of the agent’s authority. The presence and superintendence of the principal, are proof of his assent; other proof may be necessary when he is absent.

But in either case it is not the principal who acts, but the agent. If the agency be made out by proof of authority, then the law comes in and declares that the act done by him shall be attributed to and shall bind the principal. The common law which admitted parol proof of authority, would, no doubt, have declared that an act done in the presence of the latter, by his procurement, was binding on him, and, *in this*sense, that it was his own act. But the statute, in this section, has emphatically declared that if an agent sign, his authority shall not be made out by parol, but must in all cases be proved by writing. The act, if otherwise evidenced, shall not be the act of the principal, nor bind him. This enactment, it is therefore contended, has materially altered the common law, in this — that a subscription by agency, wherever executed, if the authority to make it depend upon parol, is not the subscription of the party, nor conclusive on him.

It is further to be remarked, Rob. on Frauds, 287, book 1, chap. 5, that this construction of the first section of the statute is countenanced by the fifth section, which requires devises of lands and tenements to be signed by the testator, “ or by some other person, in his presence and by his express directions and by the sixth section, which declares that no will of lands shall be revolted but by will or codicil, or by burning, cancelling, &c. by the testator himself, *“*or in his presence and by his directions and consent.” The contrast between these two sections and the first, is remarkable and very pregnant. The difference of the phraseology manifests a difference of legislative intention. *440It shews that the legislature, in the fifth and sixth sections, carefully distinguished between a signing or cancellation by the testator personally, and by agency — although exercised in his presence and by his direction — and gave effect to them as two distinct things. The argument of counsel was, that by agent, in the first section, the legislature meant exclusively one acting apart from the principal and not in his presence ; and that acts done in his presence were intended to be regarded as his own personal acts. But no better refutation of this idea can be given, than is afforded by the fifth and sixth sections, where his own acts are contrasted with acts done under his supervision and superintendence.

Another remarkable circumstance is, that while the legislature has, in the first section of the statute, required proof, in writing, of the agent’s authority, in sweeping terms, applicable to all cases and circumstances; so that whenever the principal does not act in his own person, but by another, that other must hold his written .power ; it has, in the fifth and sixth sections, indulged the testator with an agent to act for him without written authority, provided the acts be done under his eye. Why is a written authority required under the one section and not under the others ? Evidently from a consideration of the different characters of the instruments contemplated by the different enacting clauses — the one a deed, to be executed without reference to the death or infirmity of the grantor, and while he is in health and vigor, and acting with deliberation ; the other a testament, executed or destroyed, most probably, in prospect of death, under physical disability, and under the pressure of circumstances admitting of no delay.

As to the cases where the signing of one partner for his co-partners in their presence, has been allowed to bind them, those of us whose opinions I am now representing, conceive that they have turned on the intimate relation and identity of interest existing among the partners, which have led the courts to allow a greater efficacy to vicarious acts in partnership cases, than would be admitted in other cases where there is no community between the principal and agent. If the court were bound by those cases to depart from the requirements of the statute, it would confine itself to like cases, and not extend what is conceived to be a misconstruction, to other and dissimilar circumstances.

And as to the observation, that the allowing the authority of the agent to be made out by parol proof that he acted in the *441presence of the principal, is no more dangerous than to allow proof that he made his mark, or set his seal or stamp, or allowed another to guide the pen which he held ; we answer, that it is the function of the court to carry out the statute in its terms, and if perjury may be committed by allowing proof to be made that the party has done what the statute required him to do, for the purpose of binding him in obedience to the statute, that is a very insufficient reason for throwing ourselves open to more perjury in allowing proof of what he has not done as required by the statute, for the purpose of binding him in direct opposition to the statute. The legislature has required the party to sign the deed, and he does sign it. The statute does not require him to sign it in any particular way or unaided. He signs with a stamp, or a mark, or makes use of a help in writing, but he does sign. No other person signs for him. His signature, however performed, must be proved by parol, and perjury may be committed. No human law could guard against this — and certainly, though the party subscribed his name in autograph— although, according to any construction of the statute, this would be a -full compliance with its provisions, still, if his writing were little known, perjury might be committed. How can you certainly guard against such things ? But the statute requires that where an agent signs, his power must be evidenced in writing. Here an agent subscribes the deed,' and has no written authority. Who is to be responsible for the perjury that may be perpetrated in the effort to substitute parol for the written power *1*Not the legislature, which forbids' all parol, and, by consequence, all swearing in the case, but the court, which admits them.

A case has been mentioned of a person physically incapable of signing, and therefore incapable of giving a written authority to an agent to sign for him ; and it has been asked, shall not such a person be allowed to sign by an agent acting in his presence? The danger of fraud and perjury intended to be avoided by the statute, threaten the whole community, and the objects of the legislature are not to be sacrificed to an anomolous case. The statute has, for the general good, required contracts of conveyance to be executed in a particular manner, and if there be persons who cannot so execute them, why, then it amounts to only this, that such persons cannot so contract. The law has said that whole classes, such as idiots, infants, (fee. shall not contract; and it may, for wise purposes, say that others may be circumscribed in *442their capacity to convey. There never was, and never can be, a law by which some persons may not be injured.

As I have stated, the Judges here who hold the two opinions X have endeavored to set forth, are equal in number. But there are other Judges who have not been able to come to a decision of the question, either one way or the other, although rather inclining to the latter opinion. The point is not decided, and I have thrown out these observations for the purpose of drawing the attention of the profession more closely to the subject in future cases, where a decision is necessary. But some members of the court who were not prepared to hold the deed well executed by Miss Wallace, are nevertheless satisfied that, since her marriage, and in consequence of what has taken place, she is entitled to its benefits, even in regard to the land ; and these, whose views I am now to express, in connexion with those who hold her signature good, form a majority of the court.

The first section of the statute was principally intended for the protection of the party conveying. If Mrs. McCollough was not bound by her conveyance, she may nevertheless assent to it. As observed by Mr. Roberts (a) in relation to another branch of the statute, “there may be cases, too, as it is conceived, in' which the signature of one of the parties may' be binding upon both; as when a bill is filed for a specific performance of an agreement, signed only by the defendant, the plaintiff acquiesces, by his application for relief, in all the terms of the instrument which are required to be performed by him.” *Owens vs. Davies,*1 Ves. Sr. 82. Though this passage relates to contracts for the sale of lands, and not to deeds conveying them, that portion of the court to which X last referred, do not see, upon principle, why a party may not assent to be bound by a conveyance which he did not sign, as well as by an agreement to which he is not bound without his signature, and has not subscribed.

This brings us to the question, whether both tracts passed under the schedule; and the court is satisfied that a body of land consisting of subdivisions, but generally regarded as one tract, may pass as one tract. This appears to be the case here; and it seems to be no sufficient objection, that the aggregate of the two parcels exceeds the number of acres specified, as the land is conveyed *“*more or less.”

*443Then the question arises, whether the defendant is accountable for the amount received for both the parcels of land.

In the conveyance of one of them to John Parham, (erroneously stated in the decree to have been made to Clough Ming, which error must be corrected,) Mrs. McCollongh joined, and effectually relinquished her inheritance. The court is of opinion she is bound by her act, and cannot take advantage of a *devastavit*in which she joined. It is no answer, to say that she was a *feme*covert, and not bound by her act. Although generally, in this State, a *feme coveft*is not bound by her acts, this cannot apply to conveyances by her of her inheritance. As to these, the Act of Assembly makes her competent. Besides, if it be objected that the title was not in her, but in the trustee, it is a sufficient answer that the title is still in him, and ha has sustained no injury by the sale.

With respect to the other tract, we see no reason to differ from the conclusion of the Chancellor, except in this, that Mc-Collough being, by the terms of the settlement, entitled to the income and profits of the trust property, during the joint lives of himself and wife, is not chargeable with interest for that time on the sum received by him for that tract. But he must pay that sum to the executors of the trustee, to be by them held on the trusts of the settlement, or give them bond with sureties, to be approved by the commissioner, and by the court, upon his report of the fact, for its payment at the expiration of the joint lives of himself and wife — and this decree must form a lien on his property until one or the other of these alternatives be complied with.

This brings us to the questions in relation to the notes of hand. The deed does not convey, nor does it profess an intention to convey, all the property and choses of Miss Wallace. It expressly refers to the schedule for a description of the subjects of the conveyance; and the whole court is of opinion that the deed, independently of the schedule, conveys nothing. We must look to the schedule, then, as the test of what is conveyed and assigned ; and we find, among other things *li*also the following notes of hand, one given by John Barham to the said Elizabeth for one thousand six hundred and ninety-one dollars, with interest thereon — -one given by William Wallace for one thousand five hundred dollars, with interest thereon — one note of hand, given by Martha Sanders, for one hundred dollars, with interest thereon.

*444A note on Martha Sanders, corresponding to the description, came to the hands of the defendant; and no doubt he is properly chargeable with $112 96, to which it amounted at the date of the settlement.

The difficulty is as to the notes of Parham and Wallace.

Three notes, instead of one, on Parham, were found, the principal sums of which, respectively, were $295, $195, and $300, making together $790. So that no one of them, nor the three together, correspond to the description of the schedule: and even with the addition of the interest due on them at the date of the settlement, they fell $22 30 short of the description.

Instead of one note-.on William Wallace for $1500, nine were produced, two of which were not on Wallace but on Mrs. Hunt. Of those on Wallace the largest was for $760, on which there was due at the date of the deed $673,30 for interest, making the whole amount of this note, at that time, $1433,30.

The principal of the whole of the notes on Wallace, at the time referred to, was $1430 84, and their interest $1382 59, making, of principal and interest, $2813 43. If we add the principal of Mrs. Hunt’s notes ($141 90,) and their interest, ($107 06,) the principal will be $1572 74, and the interest $1489 65, forming an aggregate, at the date of the deed, of $3062 39.

It will be seen by this statement that neither singly, nor by any combination, and whether interest be taken into the calculation or excluded, do these notes, any more than those of Par-ham, coincide with the description in the schedule.

In the application of the descriptions of the schedule to these notes, the court has experienced much difficulty. The point has been argued as if it. involved the question whether parol evidence was admissible to shew the intention of the instrument. But this is a misapprehension. If evidence of this sort had been presented and received, that the intention of the parties was to embrace this or that note, or all of the notes, as explanatory of the terms of the schedule, this would have raised that question, and the whole court is of opinion such evidence would have been inadmissible.

It is the familiar and necessary practice, where specific things are described in a will or deed, to ascertain by parol the existence and qualities of the things which it is insisted pass under the instrument; and if the things, as proved by the evidence to exist, correspond with the description, the instrument itself con*445tains the evidencie that they are the things intended. It lays hold of them by its own terms, and conveys them to their intended destination. This process involves only the evidence of the character and existence of the subject of donation, and the construction of the instrument by which it is made.

When two things are proved to exist, each satisfying the description given in the paper, an ambiguity, previously latent, is created, which of them is intended. Here, alone, is parol evidence receivable to aid the court in making a selection between them. But even here, it will be obsered, though the evidence is received of necessity to give operation to the deed or will, it, is to give it an operation conformable to its terms. It is not to explain the construction, and of consequence, the meaning of the terms employed in it, much less to vary them; but simply to enable the court to apply them in exact conformity to the meaning and intent of the party, to be gathered from the paper by construction.

But when, of two things presented, neither tallies with the description given, it is against principle,- whatever anomolous cases may be found in the books, to receive evidence which of them was intended, or whether both were intended.

In this case no such evidence was offered or received, nor would it have been admitted. The only question is therefore one of construction of the deed.

Under the description of *one*note on John Parham for $1691, and *one*note on William Wallace for $1500, can the, deed refer to the *three*notes of Parham and the *nine*notes on Wallace, for different amounts?

A large majority of the court is of opinion that as the deed refers to, notes, as existing, it must to some extent operate upon the only notes found to have existed at the time.

As to the extent of its operation three opinions exist here.

1. One is, that only *one*note on Parham and Wallace, respectively, passed.

2. Another is, in conformity to the Chancellor’s view, that all the notes passed.

3. The third is, that the conveyance must be construed as an assignment of $1691, due by Parham, and $1500 due by Wallace, by note.

A majority of the court rejected the two first of these opinions, but adopted the last.

The first of the three is the one in which I personally concur. *446and while I shall endeavour to do justice to the reasons of the majority. I think it due to such a question, doubtful and difficult as it is on all hands acknowledged to be, to state very briefly the grounds of my own opinion.

In the first place, it seems too plain to require *reasoning*or authority to shew, that the assignment was of a specific chose in action, and not of so much money. If these words had oc-cured in a will, I apprehend there could be no diversity of opinion that they would have constituted a specific and not a pecuniary legacy, so that if no note, had been found on the persons mentioned, the legacy would have failed, nor could the amount have been made up from any other source.

Then the very thing intended to be given, in the form and according to the description employed, is the only thing which can pass under the assignment; and whether the thing presented can pass, must depend upon the proper construction of the words of the assignment. .

It is admitted, that where, by part of the terms employed, the thing can be ascertained, a further false description will not vitiate nor prevent the thing, already ascertained by the true description, from passing. The things here described are, one note of John Parham to Elizabeth Wallace, and one note given by William Wallace. One note on each of these parties is produced. So far the description is true, and so far the assignment is satisfied. But neither of these notes is of the amount indicated in the schedule. Here is the false description, but if no other notes were produced, this would not vitiate or frustrate the assignment. It is only when the party claiming, instead of producing the note coming nearest the description, goes on to produce others, that any serious difficulty arises. But the additional notes are not produced to exhibit an amount corresponding to that indicated in the schedule. If they had exhibited such a coincidence, it might have been contended that the false description was in the enumeration, and not in the amount, of the notes. But the additional notes have the effect of *falsifying one*description already ascertained and satisfied, without conforming to another. The first note produced violated only one of the terms of the description; these now produced violate two. I shall not proceed to illustrate this point by numerous other observations which readily occur, but simply remark, that the additional choses cannot be let in under Mr. Wigram’s proposition, referred to in the decree, that when the subject of disposition *447does not correspond to the description given in a primary sense, it may be let in, if it corresponds in a secondary sense. Although a body of land, divided by an ideal line, may be considered in one sense as one tract, and in another as two, there is no sense in which *one note*can be considered as *nine,*or *two*notes as *twelve.*

The second opinion was that adopted by the Chancellor, of which the reasons are strongly set forth in the decree.

But, as I have said, neither of these opinions is that of a majority of the court.

The construction adopted by the majority is, that the assignment was intended to convey debts due by Parham and Wallace on notes, to the extent of $1691 on the former, and $1500 on the latter. That an assignment of so much money was intended; and that the notes were referred to as the means by which it was secured and to be raised. They acknowledge the difficulties of this construction ; but they see enough, in the state of facts existing at the date of the deed, to satisfy them that no other construction will subserve the real intention of the parties. In support of their view they conceive that the case (a) was well cited in argument, where £1250 value of 4 *per cent*stocks, was satisfied out of 3 *per cent,*long annuities, upon proof that the testator had purchased the 3 *per cents*with the 4 *per cents,*and that the will was copied by the draftsman from a will drawn while he yet held the latter; not that the court would rely on the decision as authority that parol evidence was admissible that three *per cents*were meant, but for the purpose of shewing that the legacy was pecuniary, and that the reference to the stocks was merely demonstrative.

Of course the sum due by Parham at the date of the deed being only $1668 70 instead of $1691, the former sum only passed, which added to the $1500 given on Wallace, and the $112 96 on Martha Sanders, makes the assignment, on the score of the notes, amount to $3281 66.

It is the opinion of the court that the defendant is chargeable only with this amount, to be paid at the expiration of the joint lives of himself and wife.

The plain intent, according to the construction of the deed which has been adopted, was to place so much money in trust, *448to the interest or profits of which the husband was entitled, until the expiration of the time above mentioned.

It is true, the defendant, under a different, and, as the court believes, a mistaken construction of the instrument, did execute receipts for *the*notes of Parham and Wallace, in the name of his wife. But such an act, under such a misconstruction, and without any consideration, should not have the effect of converting the mistake into a declaration of trust beyond the extent of the trusts of the deed.

Nor can the court attach a trust upon the negroes received in lieu of the money, to any greater extent than to declare a lien on them and the rest of his property, until the defendant shall repay the money to the executors of the trustee, or secure the payment of the same, by instruments to be approved by the commissioner, and by the court upon the same being reported.

The defendant, being entitled to the interest and profits of the fund, was entitled to borrow it *from the trustee,*upon proper security, and make the most profitable use of it within his power. .Resolved into its elements, the transaction which took place was substantially this, that the defendant borrowed the money from the trustee, and with it bought the negroes from Wallace and Parham, and is entitled to the benefit of his bargain. His only obligation is to replace the money; but until he does this, or secures its being done, the negroes purchased must *represent the*fund employed.

It is ordered that the foregoing opinion stand for the decree of this court, and that the dircuit decree be modified accordingly. In all other respects the circuit decree is affirmed.

Johnson and Dunkin, CC. and Richardson and Wardlaw, JJ. concurred.

(a)

 Rob. on Frauds, 124.

(a)

*Selwood vs. Mildmay,*3 Ves. Jun. 306.

Butler and Frost, JJ.

We concur in the result of the opinion, except in so far as it charges the defendant with the sale of the lands.

O’Neall, J.

1st. 1 think the deed of marriage settlement was well executed by *Cloe*Sanders’ *signing, sealing*and delivering it in the name oí Elizabeth Wallace, in her presence and at her request. It thus became as much her act and deed as if she had signed, sealed and delivered it herself. To such a case the statute of frauds has no application.

2d. I think the defendant is chargeable with *the*proceeds *of*the sale of neither of the tracts of land. The title is in the trus*449tee, and after the determination of the use for life he may recover the land.

3d. I agree that the defendant should account for the amount set out in the schedule, as the sums due by Parham, Wallace and Sanders. This is the nearest approximation to what was intended which the deed permits.

4th. I am satisfied, that the aggregate of these sums should be declared to have a lien on the slaves purchased from the executors of Wallace, and from Parham, now in the possession of the defendant, and their increase, to secure its payment to the trustee, on the falling in of the life estate.

Evans, J. concurred in the views of O’Neall, J.