*Columbia.*

Heard by Chancellor James.

• issxx&vm.

#### Wm. Ballard and wife, *vs.*S. Taylor, Sheriff, et al.

By the proviso to the act of *1793,*relative to the recording' mar* riage settlements, the non-recording within the limited time, does not vitiate the settlements, so as to let in debts contracted before the marriage : but those incurred after the marriage, must be paid out of the settled property, included in the unrecorded settlement.

No technical \v0rd3 are necessary to create a separate estate. Any words indicating that intention are sufficient.

FEB’Y. *1815.*

The dispute in this case is between the complainants, who claim under articles made previous to the marriage, and the defendants, who are creditors, and have been enjoined.

The deed of settlement, or articles, was made on the 15th of October, 1810, and does not appear to have been duly recorded, agreeable to the act of 1785, “ to oblige persons interested in marriage deeds and contracts to record the same in the secretary’s office,” nor agreeable to the act of 1792, for amending the same. But the question in this case, arises under the proviso of the latter act; which declares, that where a settlement is made previous to marriage, nothing in the act contained shall be construed to make the property liable in default of recording it duly, to the debts contracted by the husband previous to marriage: but only, to such debts as shall have been incurred subsequent to marriage.

In order to ascertain what debts of the husband were contracted before marriage, I ordered it to be referred to the commissioner, with instructions, to opon the *551liquidated debts, and to go back to the original date of each contract. Proceeding upon this principle, lie has reported, th at the debt of Lazarus & Florence was contracted previous to marriage, as also, were all the notes submit-tpd to the consideration of the court ; except the second note due to Lesley, for $80, which was after marriage»

The debts previous to marriage could not have been -incurred upon the faith of the wife’s property : As to them, there could have been no deception upon creditors; who could only have looked to the property of Ballard. It is immaterial whether we consider the original act or the act amendatory, as bearing upon the case, for the proviso to the latter must take effect; and the articles must exonerate the property from the debts incurred previous to marriage, if the estate of the wife is a separate one.

In deciding upon this point of separate estate, there is much difficulty, if the whole deed is to be taken together; for the latter part cannot well be reconciled with the former. But in strict legal construction, I shall rely upon the first part of the deed ; which shews “ a decided intention that the husband shall have no interest whatever.” — -Lamb *vs.*Milmes, 5 Vezey, jr. 521. The Words are strong, *“*that the property belonging to each shall remain, as if no marriage had taken place; and that the husband shall not have it in his power to sell, convey or will away any part of the same, without consent of the wife, and that she alone shall be the disposer of the. same,” &c. With such words before me, there is no necessity to resort to implication ; for there is a strong expression of a separate use. — -2 Vez. 270.

Therefore, it is decreed, that the property settled is not liable for the debts contracted previous to marriage. That as to them, the injunction be perpetual; — that the property be now settled agreeable to the articles; and that it be referred to the commissioner to report precisely, what debts were contracted previous to marriage.

■ W. D. .Tames.