sister, filed his bill against the husband for payment HUSBAND'S But Lord Hardwicke dis- POWER TO CHARGE HIS of the mortgage money. missed the bill, so far as it sought to compel the WIFE'S husband to exonerate the estate, and directed him ESTATE, &c. to keep down the interest during his life. His Lordship considered this case an exception to the general rule; and it seems that, as the estate was settled subject to the mortgage, it was reasonable to infer an agreement between the parties, that the estate should be settled cum onere, especially as the ultimate limitation in fee was by the same settlement made in favour of the mortgagee. The case of Lord Kinnoul v. Money was as follows: sum, Miss Earl (b) had a real estate, which was itself subject to a certain extent, and the general estate of her father, subject to the amount of £2500. Before her marriage it was mortgaged to Wyat for that being her own debt, or, more properly, that of her ancestor. After the marriage, when it was settled in very strict settlement, with only a power after the limitations for life and in tail (which limitations in tail were gone by the death of the son while an infant) to charge by will, and to act upon it during coverture, as fully as any woman could receive such power by settlement, the husband had occasion to raise £3000 upon the estate; that was done by fine, and not by virtue of her power; for then it would not have affected it in his life, nor indeed in hers: but that sum was afterwards raised for his benefit; and their mortgage was made for the whole sum, which was 7000, and 1000 interest incurred, in (b) Stated in the words of Lord Thurlow, in 1 Ves. Jun. 186. POWER TO ESTATE, &C. HUSBAND'S all £8000. This was expressed to be done by virtue of her power. Lord Hardwicke referred it to the master to see what was raised for the wife's debt, and what for the husband's use. In 1767, before the report, it came on for a re-hearing before Lord Camden, and it was insisted, that the reference was wrong; but, worse than that, that there ought to have been an immediate decree; and that the whole ought to have been charged upon the estate of the wife. But Lord Camden saw no reason to overturn that interlocutory decree; and, therefore, at his recommendation, the parties agreed that it should be confirmed, and the cause was to stand for further directions; and he confirmed the decree in omnibus; and particularly said, that the wife's estate was not to be subject to any part, except what was for her; and that Lewis v. Nangle turned upon different circumstances, not upon the general principle. What these circumstances were, will appear from the observations which have been made upon that case. The case of Lord Kinnoul v. Money seems to be devested of all the particularities which converted the former into an exception to the general rule. Thus, in Kinnoul v. Money, the husband's debt does not appear to have been in contemplation previously to the marriage, nor to have formed the subject of treaty in regard to the settlement of the estate; so that no inference could arise, or intendment be made of any stipulation or understanding among the parties, that the money, which it appears the husband subsequently wanted, should be exclusively borne by the wife's estate. This case also wants the circumstance, and consequently the inference deducible from it, of the ultimate limitation in fee of the settled estate being made in favour of the HUSBAND'S mortgagee. it POWER TO CHARGE HIS ESTATE, &C. When it does from the deed, evimissible to not appear dence is ad But the above determination of Lord Hardwicke, WIFE's in Lord Kinnoul v. Money, and confirmed by Lord Camden, decided by inference this point-that if do not appear from the deed to lead to the uses of the fine, that the money borrowed was the debt of the wife, such fact may be proved aliunde; for if this evidence were not admissible, it is obvious that the reference to the master to inquire what was raised for the wife's debt, and what for the husband's, would have been erroneous. repel show whether the money raised husband or was for the his wife. But parol declarations her agreement to as I make a gift of the money to her hus But it would seem that evidence of parol declarations by the wife, that she had agreed to give the proceeds of the estate, or the money charged upon it, to her husband, would be inadmissible to her equity to exoneration out of his estate, infer from the case of Clinton v. Hooper (a): in Tate v. Austen (b), although it was there insisted that the money charged upon the wife's estate was a gift from her to him, it did not prevail. and band are in admissible. The wife's equity to exoneration But, the wife may exclude herself from her right or claim upon her husband's assets, when she induces his executor to administer them in paying will be legacies, upon her professions that she did not intend to assert her title to exoneration out of her husband's estate. Accordingly, in the case of Clinton v. Hooper, so frequently referred to, the widow told her husband's executor, that she did not mean to claim her right of exoneration; and she desired him to proceed in paying the legacies. Notwithstanding all the lega (a) 1 Ves. Jun. 173. 3 Bro. C. C. 201, S. C. (b) 1 P. Will. 266. barred if she inform the executor that she waives such equity, &c. HUSBAND'S cies, except two small ones, had been discharged. POWER TO WIFE'S CHARGE HIS prior to this declaration, Lord Thurlow determined, that she had waived her equity; and he dismissed the bill which she had filed to have her estate exonerated out of her husband's assets. ESTATE, &c. Effect upon the wife's is not re III. In instances where the husband and wife have right where mortgaged her estate for the payment of his debts, the equity of it has occurred that the equity of redemption has redemption not been reserved to the wife, but to her and her served to her. husband, or to the survivor of them; and it has been considered that such a reservation would in no case be permitted in equity, but that the husband would be in that Court a trustee for his wife, upon the principle, that, for her protection it was necessary, in order to effect an alteration of her interest in the equity of redemption in her own estate, there should be some expression in the recitals of the instrument that a new settlement of the property was intended; and that it was not sufficient to collect such intention merely from the limitations in the deed, but, on the contrary, that something was required to appear upon the face of the instrument, which showed the wife to have understood what those limitations were; and this was Lord Eldon's opinion, in the case of Innes v. Jackson (a), which has lately been reversed in the House of Lords (b). But when it is considered that the common law permitted the wife, as has been observed, to dispose of her real estate by fine as she pleased, and even to her husband, it seems but reasonable that when such a fine is levied, and the uses declared, they should not be controlled in equity, except when fraud or mistake form ingre dients in the transaction. When, therefore, a re- HUSBAND'S servation of the equity of redemption of the wife's POWER TO CHARGE HIS ESTATE, &C. estate upon a mortgage by her and her husband, WIFE'S reservation to the hus wife's inter will be in titled to re 1. When the mortgage deed contains no limita- 1. The mere tions of the estate beyond the security, and reserves of equity of the equity of redemption to the husband alone, in that redemption ease the wife's original sole interest will be preserved band will not to her, upon the principle, that she being the sole change owner of the estate, the mere form of the reservation est, but she of the equity of redemption is insufficient of itself or her heirs to alter or change the prior title to the property, for the circumstance of the reservation having been made otherwise than to the owner of the estate (the wife in the present instance) is presumed by law to have originated either in the inaccuracy of the language of the clause, or in the mistake of the person who prepared or engrossed the deed; neither of which circumstances is allowed to prejudice the person having the prior title :-But, deem. 2. Contra when the limitations in the deed are distinct from the trans action of the 2. When the mortgage deed contains a settlement of the wife's estate, and the mortgage, or the form of reservation of the equity of redemption, has nothing to do with the subsequent limitations of the property, but is perfectly distinct from them, as where the mortgage is for a term of years, and the mortgage. limitations apply to the inheritance, in that case these limitations, through the medium of the wife's fine, will take effect; and the persons intitled to redeem will be, not the wife under her prior title, but the persons interested in the estate under the uses or limitations contained in the mortgage deed. |