Price v. Bigham's Ex'rs.

at this term delivered the opinion of the court. We have carefully reviewed the chancellor’s decree in this case, and after deliberately considering the objections to it, we cannot see any cause to differ in opinion with hinu

*317The two principal objections consist of a question of fact, and a question of law. The first is o the claim or demand exhibited by Bigham, the complainant; the last arises upon the marriage settlement appearing in the record. They will be considered in the order in which they are here presented.

The claim set up by the complainant, is a carpenter’s account for materials found, and work done, to a large dwelling-house, built by him on the land of the defendant, Penelope D. Price, .for which he complains he has never been paid. The payment of this debt is not insisted upon, nor even pretended; but ¡t is urged that the building was not finished by the time specified in the contract; that the account is an extravagant one, consisting of many items of expensive work, done to swell and enhance the bill, and that a part of it, performed under a contract with the husband of P. D. Price, since deceased, she was made to assume by unfair and improper means.

These objections to the complainant’s demand are to be judged of by the testimony in the cause, which has been attentively examined by the court; and after much reflection, we do not think they are sustained. The delay in the completion of the edifice is attributable to the defendant, P. I). Price, herself, who suffered the workmen to board at an inconvenient distance from their work, and to be often without employment for want of materials, which were to be hauled in her waggon. The work alleged to be extravagant is suitable to the original plan and outline of the building, and some of it, particularly the inside window shutters, was put up by P. I). Price’s special directions; and her written assumption to pay for the work about the dwelling-house on her land, in her husband’s lifetime, was not obtained by unfair and improper means, being a clause in an agreement entered into by her, under the immediate eye of her husband, and with the express approbation of the defendant, Alexander Nisbet, who is the trustee of her estate, and undertook the special business of guarding and protec ing her interest.

The uestion of fact being disposed of, the law objected to the d . ee, is next to engage our attention. It brings into view a point, which has never before, perhaps, been acted upon by the courts of this state. A married woman, by her con*318tract under seal, charges the payment of a debt on her real estate, which was settled ori her by a deed of trust, for her separate use, with a power to sell and convey, and absolutely dispose of the same, by deed or deeds duly executed by her, her coverture notwithstanding; and the question is, how far a court of equity will sanction and enforce the contract, and decree a sale of the land to pay the charge?

Those kind of settlements are in derogation of marital rights, and generally speaking, are not productive of domestic happiness; and perhaps it might be questioned, whether it comports with public policy to favour and encourage them. That they are sometimes commendable, and even useful, cannot, however, be doubted by any. When they are entered into after marriage, they are commonly suggested by some necessity not discovered before the nuptial tie, and are often the means of rescuing families from penury and distress. What led to the settlement under consideration, it is not for us to surmise, hut its having been executed subsequent to the union between the husbarid and wile, is certainly not a circumstance unfavourable to a liberal construction of it.

With these sentiments of the instrument, we proceed to the interpretation which ought, we think, to be given to it. And it appear^ to us we cannot be mistaken when we observe, that the jus disponendi imparted to the wife by this deed of settlement, necessarily includes in it the power to incumber or charge the land conveyed to her as her separate property. She may sell and convey, and absolutely dispose of her estate, by a deed or deeds duly executed by her, and this, agreeably to fee terms of the settlement, without the assent of her trustee, or the concurrence of her husband. If then, by a deed or deeds duly executed by her, she can sell and dispose of the whóie interest in her land, how can the power to incumber it by mortgage, or charge it by contract, be denied to her? The law allows her, notwithstanding her coverture, to part from her whole estate, upon the principle, that in doing so she acts as a feme sole as to her separate property, and upon the like principle, and to promote fair dealing, it must he conceded to her, to incumber a :d charge it with her debts.

The contract of the 14th of October 1813, between P. D. *319Price and Bigham, authorises the trustee Alexander Nisbet, to hold the land charged with the payment of the amount of his bill of work, and in case it is not paid by a given time, it authorises him to make sale of so much thereof as will satisfy the payment of it. And can there be a moment’s doubt with any one, that if she had been in fact a feme sole, equity would have enforced the charge according to the agreement? The greater part of this work was moreover furnished on the faith of this contract, and there seems to be a peculiar equity in making the property, improved by his skill and labour, liable to Bigham for the payment of his bill. We decide the case, however, upon the ground of the charge being within the meaning and spirit of the disposing power over her separate estate, secured to the wife by the deed of settlement.

We might perhaps have left the adjudication of this case to rest on the broad grounds, that P. D. Price made the contract as a feme sole, and that her separate estate is liable for the payment oí this debt, without a special charge to make it so;, but there is no necessity to insist here upon this doctrine, and therefore we intend to observe silence in relation to it. We choose rather to base our opinion on the position, that P. D Price, having, under the appointing and disposing power of the settlement, specifically charged her separate property with the payment of the debt, it ought to be sold to satisfy it.

DECREE AFFIRMED;

And also Decreed, that unless the appellants pay to the appellees the amount ascertained by the said decree to he due by the appellants, with interest, &c. as also the costs incurred by the appellees’ testator in the Court of Chancery, and by them in this court, or pay the same into the Court of Chancery on or before, &c. the property mentioned in the proceedings, or so much thereof as may be necessary, be sold according to the said decree of the Court of Chancery, and pursuant thereto, for the purpose of satisfying the sum of money so decreed, with the interest thereon, and the costs aforesaid; and that the Chancellor make all necessary orders for carrying into effect the decree of the Court of Chancery, and of this Court.