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Lecatt,

1. The contract was fairly entered into between the JANUARY 1830 parties, for a valuable consideration, (marriage,) and it is

Rochon clear and explicit in its terms.

2. A contract founded on such a consideration, ought to be enforced by the tribunal having the power to do so, whenever either of the contracting parties refuses to comply, and a compliance is demanded by the opposite party.

3. That all persons claiming under either of the parties, have a right to a specific performance of the contract, to the extent of the right or interest claimed by him.

If the contract was fairly made, which is admitted, ought not the intention of the parties to be carried into effect, when that intention is manifest from the terms of the contract? In the case of The Methodist Church v. Jacques,a the a 3 John. Ch. terms of the contract were not expressed in stronger lan. R. 88. guage than in this case; yet the intention was there carried into effect. The object of the contract, says the Court, was to protect her against the debts, control, or interfer. ence of the husband, and the intention is too manifest to be mistaken; a Court of equity will certainly protect the wife in the enjoyment of the property aocording to the settlement. The doctrines runs through all the cases, that 13 John. Ch. the intention of the settlement is to govern, and that it R. 114. 3 must be collected from the terms of the instrument. 6.

Marriage settlements are made to secure the wife and her offspring a certain support in every event; c but if the < 3 John. Cl. husband can, contrary to his agreement, become tenant by R. 87. the curtesy, and thus defeat the object of the contract, by retaining the estate from the heirs, or by recovering it from a bona fide purchaser, how can her offspring, and especially her children by a former marriage, expect to obtain a certain support, which it was the intention of the d 3 John. Cb,

R. 539, 540. contract to secure to them?

Marriage is a good and valuable consideration; it is the foundation of this contract; and it is a general rule, that equity will execute marriage articles at the instance of all persons who are within the influence of the marriage con- e 3 John. Ch. sideration.e Are not purchasers from the wife, under such

R. 550. 2 K.

Comm. 144, articles, within the influence of such marriage considera- 138. tion. They certainly are, and the articles should be specifically enforced upon the prayer of such persons, to the extent of the right transferred by the purchase. They are the assignecs of the wife, of a right which she, by the articles, had reserved the power to dispose of, and they stand in her place so far as regards the amount of interest assign

Dess. 417.

R. 114. 3 Dess. 417.

JANUARY 1830, ed, and consequently are entitled to the same interfererice

of equity that she would be, if she had never sold her right. Rochon

If a Court of equity would “ protect the wife in the enLecatt joyment of her property according to the settlement," <

surely it will not refuse the prayer of her legal representa23 John. Ch.

tive, who occupies her place. The non-intervention of R. 87.

trustees is no objection to the carrying of the contract into 03 Jobn. Ch. effect; for it has been expressly decided that it is not now

R. 457-8-9. 2 necessary that the legal estate should be vested in an inKent, Com. 136. 2 Peere, different person as trustee, in order that it may be carried Wms. 318,' into full and complete effect, and technical words are not 319.

necessary to create a separate estate, or trust;c but the in63 Atk. 503. tention of the parties is to govern, and must be collected d 3 John. Ch. from the terms of the instrument. d Then if the intention

in 3 of the parties to the contract is to govern, and if the inten

tion is clear and plain as we have supposed, the only question which remains to be determined, is, wbether a married woman, under a contract securing to her a separate estate, can sell and dispose of it without the concurrence of her husband.

A married woman acting with respect to her separate property, is, in all respects, competent to act as if she were sole. She may give, pledge or sell it; or make any other bargain with respect to it, with any person, in the same manner as if she were sole. In equity, she is

considered as a feme sole, in regard to and to the extent of Clancy on her separate estate, and the jus disponendi follows as a Rights of married wo matter of course. e So entirely is the unity of person dismen, 347, 3 regarded in equity, that she may even sell her separate Dess. 443, 447. 456,459. property to her husband, and purchase property of him. 439. 11 Ves. If a woman living with her husband, and under his preJr. 209 to 237 13 V

0.Jr. sumed influence, is thus favorably looked upon in equity, 189. 1 Font and is there so entirely considered as a distinct and sepablanque, 96 to 180.2 K. rate person, that she may buy from or sell to her husband, 136. Sec. 4. much more should she in the same Court be considered as Newland.com a feme sole, and beyond the control of her husband, in reContracts 17 John. 548. gard to her separate property, when she is separated from f Clancy on him by a judicial sentence, and has no protection but her Rights of mfrried wo own good conduct, and can hope for no support but from men, 351, her own industry, management and good bargains.8 Such 355 2 Kent. 139.

t was the case with Mrs Lecatt, when our purchase from

her was made, and our right under her accrued." g2 Kent. 132, The whole argument of the appellee, in opposition to our 136.

bill, seems to rest on the belief, that the question has already been decided by the Court of law. This idea is fal

lacious: a Court of law never decides a question which is JANUARY 1830 peculiarly appropriate to a Court of equity, but decides such questions only as belong to its own jurisdiction. For Rochon instance, if a man intending to convey real estate, make a Lecatt. deed without affixing a seal to it, he is not, in law, concluded by what he has done, and a Court of law will not undertake to supply the defect, but will permit him, though he is the vendor, and though he have received the consideration, to recover from the vendee the very same estate he had sold; but a Court of equity, looking to the intention of the parties, and not to the form of the instrument will injoin the vendor from doing what in good morals he ought not to do, and deeree a specific performance of what the parties, at the time of making the contract, intended.

We are asked if Lecatt can be supposed to have surren. dered a right not in existence at the time of his renunciation, that is, his tenancy by the curtesy. This interrogatory may be answered by asking another question: cannot a man oblige himself not to take a right which the law would give him, or which might, by the operation of peculiar circumstances, happen to accrue; and has he not done so? Whatever might be the result at law, he certainly did, in equity, “renounce all claim, right, title, or interest to the estate of his intended wife, which the intended marriage would give him.” This contract, in the words just cited, cannot be considered as a renunciation of any right he might have had previous to the marriage, for it is not contended that he had any right before that event. What then was the contract intended to act upon? Rights afterwards to be acquired by the act, the benefits of which were relinquished. A sensible construction must be given to the contract, ut magis valeat, quam pereat. It must, therefore, have been such rights as the intended marriage would give him, that he renounced by the contract in ques. tion. The tenancy by the curtesy was a right incidental to the marriage, and surely, as well as all other marital rights, was renounced by the contract; "all claim, right,” &c. to the estate of the intended wife is relinquished; is not the curtesy a right springing from the intended wife? If so, is it not renounced? How then, can the appellee "claim” a “right" to it in equity, in the face of his agree. ment. The Court is now asked to carry into effect the intention of the parties, regardless of the form in which they

Rochon

Lecatt.

JANUARY 1830. have expressed it. This prayer is peculiarly of equity

cognizance, and not of that of a Court of common law, and therefore, cannot have been decided by that tribunal as supposed; the question is therefore, still open.

It is said that the rights of the parties depend on the construction of the marriage contract. In this idea we most cordially unite. What then is the meaning of the parties, and what construction ought to be put on the contract by which they intended to express their meaning, and to be understood?

We cannot conceive that the contract in question admits of any construction but this; that Mrs Lecatt reseryed to herself, by that contract, the entire control of her own property, in the same manner as if she were to remain single; and that Lecatt renounced - all claim, right, title and interest” thereto, which the intended marriage would give him by law.

If he intended to renounce such rights as the law might give, how could he be tenant by the curtesy, in the con

templation of that tribunal which carries the intention of a 3 John. Ch. the parties into specific execution? a He might have been R. 539. 2. P. so at law, but if he were, he was so, just in the same manWms. 318,

ner that a man still remains at law the legal owner of real estate which he intended to convey, and thought he had conveyed, by making a deed of conveyance to which he had neglected to affix his seal. Equity would there declare him a trustee for the purchaser, and if, taking ad. vantage of his legal rights, he had refused to do what was right, would compel him to do what he had agreed to do, and for the evidence of that agreement, that Court would look to the instrument he had signed. All we ask, is, that the Court should do so in this case.

SALLE and Kelly, for the appellee, argued that neither b See the arg. the agreement, the injunction, nor the decree of divorce and authori- f

formed any bar to the appellee's right of curtesy. They

further insisted that the construction to be given to the ar1. and ticles of agreement, must be the same in equity as at law, Lecatt, and and that its construction and legal effect having been deRochon : termined on solemn argument in this Court, between the Stew. Rep. same parties, that the decision was obligatory and bindpages 590, ing, and could not be departed from. 609.

They referred to the case reported in Talbot, where the question came up a second tiine, whether a widow could be endowed out of an equitable estate, in which Lord Thurlow observed with much regret that the law had been settled

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Nicholson v.

Lecatt. 1

otherwise, that Courts could not depart from their former JANUARY 1839. decisions, and that it required an act of parliament to change a rule of law. The case of Benson v. Wilbeu, a Rochon was also cited, in which Twisden says, the Court cannot Lecatt. recede from prior resolutions and decisions. Blackstone says, b it is an established rule to abide by former prece

a 2 Saun. 155. dents when the same points come again in litigation, as Comm. 46."

61 Black'st well to keep the scale of justice steady, and not liable to waver with every new Judge's opinion, as also because the law in that case being solemnly declared and determined, what was before uncertain and indifferent, is now become a permanent rule, which it is not in the breast of any subsequent Judge to alter or vary from according to his private sentiments. Judges often declare that if the question of law were res integra, they could decide otherwise; but consider themselves bound by the prior decisions. They referred to the voluminous notes of Christian, Chitty and Thomas, on the above law, as laid down by the commentator, also to Pothier, on the subject of res judicata; and to the remarks of Kent, c Burr,d Van Buren, e and Sena- a

Com. 442. tor Cramer, on the same subject. They insisted that in a the absence of any authority, it must be manifest that such 340. must be the rule; for when the Supreme Court had de- e Ib. 340, 360, clared the law, that it became the law of the case, for there was no superior authority to decide otherwise; that

f Pages 394-5. there was a want of power in this Court in the same cause to decide differently; and that the consequences upon society if the rule were not so, would be injurious in the extreme.

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BY JUDGE SAFFOLD. The bill prays a specific performance of the ante nuptial contract, as far as the appellant is interested, and for relief against the operation of the judgment at law which the appellee has obtained against her. The answer does not deny any of the material facts charged, but rests the defence on the legal and equitable validity of the appellees title, and the confirmation it has received from the judgment at law rendered in his favor, in the suit between the same parties, and which has been recently affirmed in this Court.

That the estate was an inheritance of which the wife was seized; that the marriage actually took place; that there was issue of the marriage capable of inheriting; and that the wife had died previous to the institution of either suit; are facts which are not understood to be con.

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