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POWER TO
CHARGE HIS

would have been entitled to redeem the estate, if HUSBAND'S there had been nothing more in the case, would not have been the heirs or personal representatives of A WIFE'S and B, but the persons who were interested under ESTATE, &C. the settlement. But in December 1745 and January 1746, A borrowed of C an additional sum of £400, which by two deeds of those dates was charged upon the estate for the residue of the term, and a proviso for redemption, similar to that contained in the original mortgage, was reserved after discharging the power to redeem reserved in such original seeurity; and it was declared that the term should be void on payment of both sums with interest. A and B covenanted to levy a fine (which was afterwards done) the uses of which were declared by the mortgage deed to enure to C during the term, subject to the proviso for redemption, and "after the expiration or determination of such term to the use of A and B for their lives, and during the life of the survivor, and after both their deaths to the use of the heirs of their bodies, and for default of such issue to the use of the right heirs of the survivor of A and B." The mortgage was discharged by A, who took an assignment of the term to himself. And the question was, whether the persons claiming under the wife were entitled to redeem the mortgage, which had been discharged by the husband, and to hold the estate in opposition to the limitations contained in the latter mortgage deeds; or whether the persons deriving title under the husband (who upon the events which happened had acquired the inheritance of the estate under the fine and the limitations contained in those instruments) were entitled to the estate? The determination of which claims depended upon this

POWER TO

ESTATE, &c,

HUSBAND's prior question, viz. whether under all the circumCHARGE HIS Stances of the case, a trust of the inheritance in the WIFE'S whole resulted to the wife after payment of the mortgage debt, according to the first proposition before stated; or whether such trust was repelled by the manner in which the estate was limited in the mortgage deeds after satisfaction of the debt, according to the second proposition before also stated? Lord Eldon decided in the Court below in favour of the claimants under the wife, upon the principle, that the property being the wife's and the transaction a mortgage, the right of the wife to the estate subject to the mortgage could not be altered, except it were apparent on the face of the deed, from express declaration, or something equivalent to it, that more was intended to be done than merely to make a mortgage. His Lordship must, therefore, have been of opinion, that the limitations of the estate, whatever they might be, could not afford that manifest intention equivalent to declaration, that the estate after satisfaction of the debt should go in any other course than to the wife and her family; for if his Lordship had entertained a contrary opinion, the present seems to be a case in which he would have probably decreed against the claimants under the wife. From the above decree the persons deriving title under the husband appealed with success, and it is upon the authorities before stated, and Lord Redesdale's elaborate argument in the last case, that the two propositions on this subject, and before stated, are founded (a).

(a) See the form of a mortgage of the wife's estate in Append. No. 3, Vol. ii. See also the form of a further charge upon the same estate, in Append. No. 4.

159

CHAPTER V.

THE HUSBAND'S INTEREST IN AND POWER OVER HIS WIFE'S PERSONAL ESTATE.

In treating upon these subjects, I shall proceed to consider,

I. The interest which the husband has in the personal estate and real chattels which belonged to his wife before marriage; and her power of disposing of them in contemplation of the marriage, without her husband's privity.

II. The husband's interest in and power over the personal estate and real chattels which are in his wife's POSSESSION at the time of the marriage, and such as she becomes possessed of during its continuance; and the effect of the wife's WILL made with his consent, and by his authority.

III. The interest of the husband in and his power over the personal estate and real chattels which

his wife is possessed of or entitled to as executrix or administratrix; and his liabilities in respect of them.—And,

IV. The husband's interest in and power over such of his wife's personal estate and real chattels as are not in possession but are immediately recoverable by action at law or suit in equity.

I. The interest which the husband has in the personal estate and real chattels which belonged to his

TIONS BY

OF DISPOSI- wife before marriage, and her power of disposing of them in contemplation of the marriage without her FORE MAR- husband's privity.

WIFE BE

RIAGE OF

HER ESTATE

WITHOUT

HER HUS

VITY.

dispose of

in fraud of a marriage then in treaty.

This interest of the husband is founded upon the good faith which ought to subsist inviolable in relaBAND'S PRI- tion to so solemn a contract as that of marriage. In strictness the husband can have no right to any of A woman not his wife's property previously to the solemnization of permitted to the marriage. Before marriage, therefore, the wife her property is at liberty to settle or dispose of her fortune as she pleases, provided it be done with no improper motive, nor to deceive the person who is then addressing her with a view to their union. But deception will be inferred if, after the commencement of the treaty for marriage, the wife should attempt to make any disposition of her property without her intended husband's knowledge or concurrence. The injury he would sustain, if such a transaction were to be sanctioned, is obvious; for since the wife's apparent fortune in addition to his own may be a weighty consideration and inducement for entering into the contract, the happiness of both might be endangered, if, after the treaty began under such calculations and persuasions, the wife should be enabled, prior to the marriage, to disappoint them by disposing of or abridging her interest in the property that belonged to her. It is presumed, therefore, that without the consent of the intended husband the law will not permit any disposition of the wife's fortune to be made before the marriage then in contemplation; and that under no circumstances after a treaty for a marriage has commenced will any such voluntary disposition of her property be binding upon her subsequent husband. In the absence of

TIONS BY
WIFE BE-

FORE MAR

RIAGE OF

WITHOUT

HER HUS

VITY.

other instances of fraud, the time when the disposi- OF DISPOSItion or settlement was made must decide its validity, and attention to this circumstance will, as it is presumed, reconcile the principal cases. In the Coun- HER ESTATE tess of Strathmore v. Bowes (a), Lord Thurlow said, "A conveyance by a wife, whatsoever may be the BAND'S PRIcircumstances, and even a moment before the marriage, is primâ facie good, and becomes bad only Cases conupon the imputation of fraud. If a woman, during the course of a treaty of marriage with her, make, without notice to the intended husband, a conveyance of any part of her property, I should set it aside though good primâ facie, because affected with that fraud."

In Howard and Hooker (b), a widow, prior to her second marriage, made a settlement of her estate without the privity of her second husband; and he having married her in confidence of her having that estate, the settlement was set aside.

That settlement was made in contemplation of the second marriage, and came within the above rule; there were also special circumstances of fraud upon the husband which were considered by the Court in pronouncing its judgment.

In Carleton v. The Earl of Dorset (c), Lady Dayrill, before her marriage and without her husband's knowledge, conveyed her estate to trustees, to permit such persons to receive the rents as she, whether sole or married, should appoint. It was decided, that the settlement could not be supported against the husband. Besides the probability in the last

(a) 1 Ves. Jun. 28.

S. C.

(c) 2 Vern. 17.

(b) 2 Ch. Rep. 81.-1 Eq. Ca. Abr. 59.

sidered.

VOL. I.

M

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