[¡present, Chancellors Rutiedoe, James' and Tnonrsoir.]

#### Joseph Peace, Assignee of James Kiernan, *vs.*Thomas P. Spierin, and others.

L. was indebted to several persons, and being about to marry S. she conveyed a lot of land and valuable buildings, (which she had bought and mortgaged backto G.) to'a.trustee fortheuse ofhei-self and her intended husband, for life; and on the death of either, one moie, ty to be subject to his or h'er last'will; and the other moiety to the last will of the survivor ; and in default of such last will, or other le, gal appointment, to their respective lawful heirs.

The marriage took effect, and L.,and S. mortgaged the premises to K.to secure the payment ofmoriey borrowed by S. avowedly to pay the debt to G. brit which Was not so applied. ' •

The sale of the lot and premises under the judgment, and execution of one of the creditors, to whom she owed money *dum sola,*is good and valid, though the judgment was not obtained'until after the deed of settlement; and the marriage.

Themortgage'm'adeByX,.aridher husbands.to K. was a sufficient appointment under her powér reserved in the deed of marriage settlement, and made the land liable to IC,

If any surplus money remained after payment Of these debts, in tjiesr legal order, decreed to be paid over to tile chikbep of

*461THE bill states, that Mrs. Elizabeth Lahiffe, then a widow, purchased from Mr. John Geyer and his wife, a house and lot of land at the corner of King and Queen streets, in Charlesten, which they conveyed to her in fee simple ; and she to secure payment of the purchase money, (1,100/.) gave her bond and executed a mortgage of the premises, in September, 1794.

MAY, 1807.

That the said Elizabeth being about to marry Thomas P. Spierin, a deed was executed on the 6th January, 1797, by which the said premises were conveyed to a trustee, in trust for the use of the said Thomas P. Spierin, and the said Elizabeth, during their joint lives, and on the death of either of them, one moiety to be subject to his or her last will, and the other moiety to the last will of the survivor; and in default of such last will or other legal appointment, to their respective right heirs.

That the marriage took effect, and the deed became operative. That the said Spierin and wife not being able to pay the debt to Mr. Geyer, when it fell due, he obtained judgment on the bond; and they applied to James Kiernan to assist them with funds, to enable them to make payment, and he did furnish funds for that express purpose, and Spierin and his wife executed a mortgage on the 28 th April, 1798, to secure the payment of the bond oí said Spierin of same date, conditioned to pay Kiernan, 546/. being the sum advanced to said Spierin and wife.

That these advances were made by Kiernan expressly to relieve the said lot from said mortgage, was acknowleged by Spirien and wife, who in a bill filed by them against Mr. Geyer, stated that they obtained the money from Kiernan, and transferred it to Geyer for that express purpose. And the assistance was effectual, and did relieve the lot from the pressure of the mortgage, and Spieren and wife long received the rents.

That Wm. M’Clure & Co. obtained a judgment against Spierin and wife, on the 21st April, 1798 ; and P.Dun.can, another judgment against them on the 28th October, 1799. That Kiernan not being repaid the money Ire had, *462advanced, brought suit on the bond, and obtained judg-m. nt on the 24th February, 1800} and he hath since (oiy 28th Oct. 1.800) assigned the said bond and mortgage and judgment aforesaid to the complainant, Joseph Peace.

That said Kiernan hath also obtained another judgment against the said Spierin and wife, on the 17th November, 1801, which he hath since assigned to Patrick Duncan.

That Elizabeth Spierin hath since departed this life in (he summer of 1804, without making any other appointment under her marriage settlement, than that which ■she made by the mortgage aforesaid, which has been assigned to complainant;' and she left alive her said husband, and two • children by her former husband Mr. La-hiffe. That after the death of the .said Elizabeth, the sheriff of Charleston district, who had previously levied on the said hoüse and lot, at the suit of M’Clure & co. sold the same; and he refuses to pay over the money (which. he retains in his hands) to the complainant on his bond and mortgage, alleging that the other judgment creditors claim a priority; and that the heirs of the said Elizabeth, (to wit: her said husband Thomas Spierin and her two children) claim a right, as her heirs, to that moiety to which she was entitled'under the marriage settlement, and which she had not disposed of by will or by any other legal appointment; and that the mortgage thereof to Kiernan, was not valid by reason of her coverture.

Complainant prays relief, and payment out of the sale of said house and lot.

The defendant Thomas P. Spierin admits the facts stated generally in complainants bill; but says that there is a small balance still due to Mr. Geyer, who is entitled to a preference to all the creditors. He admits that Kiernan did assist him with money, and other funds, the object of which was to pay off the debt due on the mortgage to Mr. Geyer; but the same was not so applied, owing to circumstances' beyond defendant’s control.

The defendant insists that the sale by the sheriff on *463M’Clure’s judgment and execution was irregular and void on several accounts5 and more especially as the heirs of his late wife, Mrs. Elizabeth Spierin, are entitled to á moiety of said premises under the marriage settlement, anterior to any of the incumbrances, except the mortgage to Mr. Geyér, and she had not made any legal appointment under her power *to*do so 3 the said mortgage to Kieman not coming within the description of an appointment contemplated by the deed of settlement.

The defendants, John Lahiffe, and his sister,-Mrs. Hunter, (children of the late Mrs. E. Spieren) admit the facts stated by complainant generally. ‘ But insist that by the said deed of marriage settlement, their mother secured to herself one half of the said lot of land and premises, and that she reserved no power of making contracts to bind her moiety, or in any way of acting as a feme Sole 3 and that she died possessed of Her moiety, according to the terms of the settlement, and without disposing of the same by will of otherwise, leaving alive her husband T. Spierin, and these defendants who are entitled to her moiety of said premises.

That complainant’s demand is founded on á contract made by T. Spierin and his wife during her coverture, and they submit that the same is void as to their mother.

That the lot and premises have been sold by the sheriff, under an execution of the M’Clures, for a debt of his mother whilst sole,- though the judgment was pot obtained till after her marriage with T. Spierin. They submit whether their mother’s moiety secured tp her and her heirs under the marriage settlement, was by law liable to the small balance due on saidjudgment.

That the said Spierin sold some of the negroes of these defendants in their minority, and applied the proceeds to’ the payment of the mortgage to Mr. Geyer 3 and they submit that in equity, they stand in the place of Geyer as mortgagee to the amount so applied.

The defendants insist that the balances due to M’Clure &' Duncan, ought to be paid out of Thomas P. Spierin’s *464part of the premises, without affecting the part of the other heir's.

The defendant P. Buhcán, admitted the facts charged generally, and submits his rights to the protection of the court.

The sheriff admits the sale of tlie lot and premises, and under the execution of M’Clure, and that the money is in his hands, subject to the order of the court, among the disputing claimants.

The cause came to a hearing, and Mr. Charles’ Stewart testified that the parties applied to have a mortgage of the lot and premises drawn to T. Kiernan to secure him for the money and funds advanced by him to Spierin — -understood their wás a prior mortgage to Mr. Geyer, and that when that should be settled, Kiernan was to come in on the mortgage to him. Witness could not say which of the parties told him. He does hot know that the money was actually advanced to pay Geyer.

Mr. John Geyer testified that in the year 1798, he recovered a judgment against Spierin on a private debt of his own — .and it was satisfied by the sheriff’s sale of two small houses in King-street. He bought them for 190/. *17 s. lOd.*but be allowed 400/. for them on that debt of Spierin, which was then 700/. These houses were subject to a piior incumbrance, held by Mr. Bremar, to the amount of 138/. Spierin gave no instructions as to the appropriations of the money which he paid to witness, to whom he was indebted.

Mr, CHeves for the complainant,

argued that this mortgage is a good appointment under the settlement.

The words in the settlement are “ to the use, benefit and purposes of the said Thomas P; Speirin, and the said Elizabeth Labiff, during their joint lives, and at the death of either of them, one moiety thereof, or half part, to be subject to their last will and testament, and tbe other half part to the last will and testament of the survivor, and in default of such will and testament or other legal appointment. *465the moiety th -reof to ciieir respective right heirs.” The last words Apply to Noth the moieties, for otherwise as to the moiety of the person first dying, there would be no limitation over. And from the operation of the words “ their respective;” which can have no other reference, the words, “ or other legal appointment;” ■ can not mean any mode of appointment, by the legal operation of which a feme covert can dispose of real estate according to general law, for siich a provision would be nugatory, as it would necessarily result. The word *u*other,” refers to the inode .of appointment preceding for the nature of the “ legal appointment” intended, and that is found to be tone which, according to the general law, would not be *Valid;*yet it is called a legal appointment. The words legal appointment, mean an appointment legally permissible, not legally operative, According to the general law. The settlement will therefore read “ in default of such will and testament, of other appointment legally permissible.”

Is the mortgage then á go.od appointment ?'

The case of Probart Vs. Morgan, 1 Atk. 440; establishes the rule in the words of the Lord Chancellor: That if a man have a power to charge an estate, it is not necessary in the executioii of it, he should refer to the deed out of which the power arises, for, in a Court of Equity, it is enough that his intent appears; and if in the Execution he sufficiently describes the estate, he had a power to charge, the estate is certainly bound, especial^ ly where the person charging is a purchaser of the power.”

*Exparte Casxvell. i Atk.*p. *559.*This case confirms the rule, and there is'no case at all impugning either. The Lord Chancellor says — “ though a man may execute a power without reciting of taking the least: of the power, yet it is necessary he should mention^ tate which he disposes of, and must do such aifact am shews he takes notice of the thing he has a power tótras*' pose of.” .1

*466These cases prove that there is no technical form of words necessary, but

1st. That the property shall be named.

2d. That words of disposition and appointment should , , be used.

The first is rendered necessary by the rule in Clere’s case, 6 Co. 17 b. “ That a general disposition will not dispose of what the party has only a power to dispose of, unless it is necessary to satisfy the words of the dispon sition.'”

But the generality of this rule is restrained, where the power is coupled with an interest, as in Probart vs. Morgan, where it is said, “ especially where the person charging is a purchaser of the power,” in which the distinction is implied.

And so in Hale vs.' Margerum,- 3 Ves. junj *300,*where it is determined, that where a bequest was not a mere power, but an absolute gift, a general disposition of “ all her estate, &c.” was a good appointment.

So inStanden vs. Standen, 2 Ves. jun. 594, which is a leading case, confirmed on appeal to the house of-lords, where the lord chancellor distinguishes it from the case of mere appointments, arid decrees that the property passed under a- general disposition of her estate, because it was her estate,- and because she had more therefore than a mere appointment.'

But taking the strict technical rule of Clere’s case, there is here no doubt.

1st. It is that a general disposition is not good, *&c.;*but here the disposition, is particular and specific.

2d. It is where the party has only a power" to dispose — ■ here the party has an absolute estate.

3d. It is only where it is- not necessary to satisfy the words of disposition — here it is necessary.

In Parker vs. Kett, 12 Mod. p. 469 — “ when one has an authority, and does an act which can be good no other way but by virtue of that authority, it shall *467be understood to have 'been done by virtue of his authority;.”

*Here*the act will not be good any other way, '

In Andrews vs. Ernmot, 2 Bro. C. C. 300 — the lord chancellor .says, “ I admit it is not necessary for the purpose of executing a.power that it should be recited in express terms, or that it should be by a technical deed — -it is only necessary that the power be executed.”

What are the objections here ?

1st. That the power is not referred to : but it is sufficient that the thing be mentioned; that is only where the power is naked.

2d. That this js not a will: but it need not be by technical deed — it is only necessary that the ppwer be executed,

3d. That it is by way of mortgage, which is not an absolute conveyance : But this need not be — an appointment depending on any lawful contingency would be valid; so therefore a mortgage.

It can not be the worse of being for a valuable consideration.

There can be no other objection imagined, and all those suggested or stated appear to be fallacious, <s,

Standen vs. Standen, is in point, It is to his wife for life, and after her decease, as to one moiety, to such per- ' son or persons, as she by deed or writing or will, with two or more witnesses, may appoint, and for want of appointment, over. This power decreed to be executed by a residuary devise in a will.

2d. Whether complainant is entitled to stand in the place of the mortgagee ? In equity he ought. This court can enforce it, because in strictness the judgment creditors cannot claim until the mortgagee reconvey; and the court will only allow thjs on condition.

Smithson vs. Thompson, *1*Atk, 520 — “ where a first incumbrancer, by judgment, has likewise a mortgage, though there is another judgment prior to the mortgage, the court will not direct a sale in fayor of the second judg-. *468ment creditor, unless he will pay off the principal and interest, both of the mortgage and judgment. 3 Yes. jun, ^gg gurn Vs. Burn. ’

“ Agreement for a mortgage, a specific lien against ere-¿ptors>» Here the mortgage, tho’ irregular, is a good agreement for a mortgage, and good against judgment creditors.

3d. Whether equity will make Mrs. Spierin’s moiety pay her debts so as to leave his share to pay the complainant.

This is equitable and reasonable. Lanoy vs. Athol, 2 Atk. 446. *u*The Dutchess has two funds, real and personal assets to answer her demands ; the plaintiffhas only one. Is it not then the constant equity of this court that if a creditor has two funds he shall have his satisfaction out of that fund upon which another creditor has no lien ? Suppose a person who has two real estates mortgages both to one person, and afterwards only one estate to a second mortgagee who had no notice of the first; the. court in order to re? lieve the second mortgagee, have directed the first to take his satisfaction out of that estate only which is not in mortgage to the second mortgagee, if- that is sufficient to satisfy the first mortgagee, in order to make room for the second mortgagee, even though the estates descend to different persons.”

The next question is, whether the sale of this lot was. Segal ?

1st. The legal estate was in the husband and wife, and therefore bound by the judgment. 2 Black. Com. 335. “ By this equitable train of decisions in the courts of law, the power of the Court of Chancery over landed property was greatly curtailed and diminished. But one or two technical scruples, which the judges found it hard to get over, restored it with tenfold increase. They held in the first place, that no use can be limited on a use,” and that when a man bargains and sells his lands for money, which raises a use by implication to the bargainee, the li-*469mitatiou of a further use to another person, is repugnant, and therefore void.”

“ And therefore on a feoffment to A. & his heirs, to the Use of B. and his heirs, in trust for C. and his heirs, they held that the statute only executed the first use, and that the second was a mere nullity. 2 Fonhl. 16.”

“ Whore lands are limited to the use of A. in trust to permit B. to receive the rents and profits, for the statute can only execute the first use.”

If the use was not executed under the statute, then the judgments did not bind; the interest being joint and indivisible during their lives, and then the moiety of Spie-rin was exclusively bound by the mortgage.

And so in like manner, and for the same reason, Mrs. ¡ppíerin’s, if valid as an appointment.

Mr. Guiggs for Spierin, and Mrs. Spierin’s children, argued tlrat the property was disincumbered before the death of Mrs. Spierin. Consequently the right of her children attached. 1 Powell, 59, 60, and 1 Vern. 141.

The advances made by Kiernan were not chiefly in cash, but in property sold doubtless for bis own benefit; and no evidence that the amount was appropriated to pay off Geyer’s debt. The intention of the deed was to limit ibe estate after the expiration of her life estate. She re' served no power of entering into contracts. She had nc power to give a bond, and. the court will not presume a power to give a bond., or confess judgment, or grant a mortgage. It is true that in the execution of a power, there is no necessity to refer to and express the power. But a mortgage is not a proper execution of the power of appointment. It could never have been contemplated. See 1 Powell on Cont. 59, 61; and 1 Yern. 141, 182.

Mr. Simons for defendants,

argued that there was no. proof of any application of the funds advanced by Kiern-an to Spierin to pay oif the debt of Geyer. As there Were. children at the time of the marriage, their rights *470were secured by the settlement,, There was no power reserved for Mrs. Spierin to mortgage. The appointment shoui(j have been of the character of that expressed in the deed of settlement.

qrhe intent of the settlement was to secure the wife from the controul and influence of the husband. 1 P. Wms. 741. 2 P. Wms. 505. 3 Aik. 156. The appointment js by both, although it is a rule that the power of appointment cannot be delegated.

The appointment by will or other instrument of that nature, must be agreeably to the statute ,of frauds, Dormer v. Thurland and others. 2 P. Wms. 505, appointment by will without a seal is void, dee 3 Atk. 156. It is clear that in consequence of the mortgage they held but an equity, and the statute could not execute the uses. See 7 Term Rep. 652.

The settlement was a lien on the specific property, before the creditors obtained any. ■

Chancellor Rutpedge

afterwards delivered the decree of the court,

In-this pase the court see no reason for setting aside the sale made by the sheriff; the execution under which the sale was made being regularly obtained against Spierin and wife, for a *debt*contracted *by*her before marriage, and for which the property she then possessed was liable, (her husband having none J although secured by marriage settlemént between her and Spierin. The mortgage in which she joined with Spierin to Kiernan must be considered a legal appointment of her moiety pf the lot, &c. secured to her by settlement, although it might not be such an appointment perhaps as was contemplated when the settlement was executed. Independent of the mortgage, the settlement gave the husband a moiety of the lot, and as she is said to have died without a will, he would have become entitled to one third of her moiety, & her children (the *L*xhiffes) to the other two thirds. But as there are judgments against Spierin and wife, for her debts contract*471ed before marriage, and a balance due to Geyer on the original purchase money of the lot, those debts must be satisfied in the first instance, out of the monies arising from the sale made by the sheriff; and the remainder of the money must be applied to the payment of complainant’s debt and the costs of this suit: Provided, that if there shall be any balance remaining of the two thirds of the moiety secured to Spierin’s wife, after payment of the debts, the same shall be paid over to her children, the La-hiffes. Refer it to the master to ascertain what is due on the respective debts.