POWER TO HUSBAND'S considering her estate only as a surety for his debt, and none of his creditors have a right to stand in mortgagee to come round on the CHARGE HIS ESTATE, &c. Why the wife's equity the place of the wife's estate." Probably it was for want of this power, and in consequence of the rule that the equities of the wife and of the heir are in principle the same, that in the above case of Tate v. Austen it was decided that the wife's right to exoneration should be postponed to the husband's other creditors; which was in effect placing her in the condition of the heir. But in the following particular, is preferred her right of exoneration as settled by the last case to the rights in giving her a preference to general legatees exceeds that of the heir, for against him legatees as well as creditors are permitted to stand in the mortgagee's place (a): this advantage given to the wife appears to be the consequence of the inability to subject her estate by circuity as above; the effect of which, although allowed to creditors, is not extended to volunteers as legatees. of legatees and the heir's not so. Wife's right to exone ration conti nues although the original debt be dis charged by the husband, if he borrow another sum on the same security. And he cannot by will prejudice such right. If the debt were originally the husband's, and the mortgage of his wife's estate securing it were paid off by him, and he borrows another sum of money upon security of the same estate, then whether the wife does or does not join in the second mortgage, his assets will be liable to exonerate her estate; since the original debt being the husband's, it ever afterwards continued to be so, for the change of securities made no alteration in that respect, and the husband cannot by any direction in his will ordering his personal estate to be applied in payment of all (a) Bunb. 137. Lutkins v. Leigh, Forrest. 53.-Rider v. Wager, 2 P. Will. 329-335. debts, except mortgage debts, exempt the application HUSBAND'S of that fund to exonerate his wife's estate. POWER TO CHARGE HIS ESTATE, &C. Accordingly, in Astley v. Tankerville (a) the wife's WIFE'S estate being in strict settlement, with the ultimate limitation to her and her husband in fee, with a power for them to revoke the old and appoint new uses, they mortgaged the premises for five hundred years to secure £3000, with a reservation of the equity of redemption to the husband, or such other persons to whom the freehold and inheritance should belong. The mortgage having been paid off, the term was assigned by deed in trust for such uses as the husband should appoint; and in default, to attend the inheritance; but the wife was not a party to the deed. The husband afterwards borrowed £3000 upon security of the estate, and by his appointment the term was assigned for the benefit of the mortgagee, and the husband covenanted for payment of the money. He then made his will, and ordered that his personal estate, not otherwise disposed of, should be applied in payment of his funeral expenses, debts, and legacies, except such debts as were secured upon and might affect any of his estates in A., &c., whereof he was not seised in fee-simple (meaning the wife's estate in mortgage). Lord Thurlow was of opinion, that the £3000 was the husband's debt, and that his assets should exonerate the wife's estate; his Lordship therefore dismissed the bill which was filed to subject her estate to the payment of the debt, but without costs. The debt affecting the wife's estate must be that of the husband, or her claim to exoneration will (a) 3 Brown C. C. 545. But the debt husband's, must be the or the wife's POWER TO ESTATE, &c. oneration will not arise. Instances of HUSBAND'S fail; so that if a debt were contracted by her before marriage, and she and her husband joined in a fine and mortgage of her estate to a person who advanced money to pay off such debt; or if a mortgage subright to ex- sisted upon the estate at the time of the marriage, and she and her husband joined in a transfer of it to some other person, and the husband covenanted to pay the money; in none of these, or the like cases, will his assets be liable to exonerate the estate, because the debt affecting it never was his debt, the money never came to his hands, and his covenant pay her debt, will not have the effect, contrary to the fact, of or one affect- making that the debt of the husband, which was ing her estate before not so originally (a). debts not entitling the wife to exoneration, viz. where the money is applied to marriage. Or where the money was paid to her, and remained under her separate control, and subject to her absolute disposition. Thus, land descended to the wife subject to a mortgage; the mortgage was assigned, and the husband covenanted to pay the money to the assignee. It was decided, that as the debt was not the husband's, his personal assets should not exonerate the wife's estate; and the covenant was considered as an additional security only for the satisfaction of the lender of the money (b). According to Lord Thurlow's opinion, in Clinton v. Hooper (c), it would seem, that if the money borrowed upon the wife's estate were paid or transferred to her with her husband's privity, so that she might dispose of it as she pleased, and instead of spending she preserved it, and had the power of disposing of it by will as if she were unmarried; then, although the Court will not infer an equitable (a) As to the effect of the husband's covenant, see 9 Mod. 12. 20. Ambl. 173. 1 Bro. C. C. 454. 2 Bro. C. C. 57–101. 152. 14 Ves. 417. (b) Bagot v. Oughton, 1 P. Will. 347. (c) 1 Ves. Jun. 188. POWER TO assumpsit, contrary to the tenor of the obligation HUSBAND'S subsisting between husband and wife, who cannot contract with each other without the intervention WIFE'S of trustees; yet, as she had sole control over the ESTATE, &c. money, and it never was the husband's during her life, the principle that the debt was not the husband's would apply, and therefore would exempt his estate from exonerating the security affecting his wife's under the above circumstance; and that if, by a And aldistinct transfer and independent transaction, with- though she gave the out any relation to the original matter, she gave the money to her money to her husband, that circumstance would not husband, probably reach back to the original contract, so to make the husband the original debtor, and to ground the wife's right to exoneration upon the principle, that payment having been made to wife was, in the common legal sense, payment to original con her husband. as the semble that circum stance will not make the money his debt by relation to the tract. If part only of the money raised on her estate be her debt, to that extent her husband's right to exoneration But suppose part of the sum borrowed on security of the wife's estate to be the debt of the husband, and the remainder of the money to be applied in payment of debts owing by the wife dum sola, or to which the estate was liable previously to the marriage; in that case it seems that the general rule is applicable, and that the wife will be a creditor upon her husband's attaches. estate for the proportion of the debt received by him. But if, from the nature and the circumstances But when of the transaction, it appears or can be inferred to have been the intention of the parties that the wife's estate should be solely liable to discharge the whole sum borrowed, as in the instance of the mortgage the wife's having relation to the settlement of the estate by marriage, the agreement of the parties upon the marriage; wife will not there, since an inference may be drawn that such be entitled to VOL. I. L the security can be con nected with the contract for settling estate upon there the exoneration. CHARGE HIS HUSBAND'S agreement extended to the subsequent mortgage, POWER TO and that it was stipulated that the sum to be borrowed should be charged upon and borne solely by the settled estate, such a case will form an exception to the general rule, and exempt the husband's estate from the wife's general equity. WIFE'S ESTATE, &c. Cases. According to this distinction, the apparent disagreement of the cases of Lewis v. Nangle and Lord Kinnoul v. Money may probably be reconciled. The former case was to the following effect :— Mrs. Nangle (a) was before her marriage with the defendant indebted to several persons, and entitled to the inheritance of lands charged with the payment of sums of money. She, before her marriage, entered into articles, by which the premises were to be settled to the husband for life sans waste, remainder to the wife for life, remainder to the issue of the marriage, with remainder to the wife in fee. The marriage took effect; and the husband being pressed for the payment of the wife's debts, and having also occasion for a further sum of money, he and his wife borrowed £1300 of the wife's sister, and secured it by a mortgage of the wife's estate. He also covenanted for payment of the whole money, and executed a bond conditioned for the payment of it according to the provisoes in the mortgage. Subject to this mortgage the lands were settled to the husband for life, remainder to the wife for life, remainder to the issue of the marriage, remainder to the wife's sister (the mortgagee) in fee. Mrs. Nangle died without issue; and the plaintiff, the devisee of the wife's (a) Ambl. 150, but better reported 2 P. Will. 664. in notes, ed. by Cox. |