Barron v. Barron

| Vt. | Mar 15, 1852

The opinion of the court was delivered by

Ishaji, J.

The-object of this bill in chancery is to perfect the title of the orator to that portion of the premises therein described, which was conveyed by Jedediah Kilburn to Azuba Sessions, and upon which his execution against Rufus Barron was levied. The bill charges, that the premises were contracted for at the price of $1800, that the deed was executed to Mrs. Sessions for the purpose of keeping the property from the creditors of Rufus Barron, and that a fraudulent agreement to that effect was made between them. The orator further states, that Rufus Barron was possessed of $1100 in money, and paid that amount towards the purchase, and insists, that to that extent Rufus Barron has an equitable interest in the land, subject to be taken on his execution, and that a legal title to the premises upon which his execution was levied, should be perfected in him by decree of this court.

The bill is taken as confessed by Rufus Barron, but answered by the other defendants. Mrs. Sessions, in her answer, denies the facts stated, and the whole equity of the orator’s bill. The defendants Baxter and Parkhurst, admit, that they are grantees and purchasers of the premises by regular conveyances from Mrs. Sessions to Baxter ahd from Baxter to Parkhurst, and that at the time of the conveyances they respectively had notice of the orator’s attachment; so that their right and title is held subject to the elaim of the orator under his attachment, as it may be perfected at law or in equity. The recovery of the judgment in favor of the orator v. Rufus Barron, the issuing an execution thereon, and the levy of the same on the premises in question, are facts not disputed; and it is equally undeniable, that the orator has laid a proper foundation for sustaining this bill, by exhausting his remedies at law in seeking satisfaction of Ms execution. The conveyance from Kilburn to Mrs. Sessions was made October 20, 1841, and was paid for at the time by the notes of Mrs. Sessions, with the understanding, however, that the notes were to be paid by the application of about $1,100 coming to Melinda, the wife of Rufus Barron, from the estate of her father, and which was then in the hands of the administrator; and the balance was to be paid by Mrs. Sessions from her own estate. It is evident, from the testimony in the case, that the deed was executed to Mrs. Sessions by the request of Melinda, and with the consent of Rufus Barron, for the purpose of placing the amount so paid from the distributive share of Melinda in the hands of her mother, as trustee, to preserve the same for her sole use and benefit and as her separate estate, so that in no event it should become the property of her husband, or subject to the inheritance of his children by a former wife. The case is free, therefore, from any question of fraud in fact, arising from the execution of the deed to Mrs. Sessions ; for it does not appear, that Rufus Barron was any where indebted at that time, and the claim of the orator accrued several years after this transaction.

Mrs. Sessions admits, however, that her personal interest is only to the extent of about $700, and that she holds the remainder as trustee for her daughter Melinda; and insists that it belongs to Melinda as her separate property, independent of any claim of her husband or his creditors. This answer is conclusive upon her as to the extent of her personal interest in the premises; and though the deed may contain the statement, that its consideration was paid by Mrs. Sessions, and contains no recital of a trust interest, yet, she is as much chargeable as trustee, by the acknowledgment of the trust in her answer, as if the deed contained an express declaration of the trust. 2 Story’s Eq. § 1201, and note 2. 2 Atk. 155.

The important inquiry, therefore, in the case is, who is really the cestui que trust under this deed, of that portion of the premises paid for by Melinda’s share from the estate of her father ? The question is presented free from any embarrassment arising from questions of fact; for we learn from the testimony, that the marriage of Rufus Barron with Melinda took place Sept. 6, 1841, while her father deceased April 11, 1840; so that the distributive share vested in the wife of Rufus Barron prior to their marriage, and her title thereto, though not reduced to her actual possession, became absolute and unconditional.

We are enabled to obtain an answer to the inquiry, which of these parties is entitled to that trust estate contained in the deed to Azuba Sessions, by ascertaining to whom, belonged the money which was paid for its purchase. For it is a common principle in equity, “ that where one buys land in the name of another and “ pays the consideration money, the land will generally be held by “ the grantee in trust for the person who so pays the consideration.” This, says Justice Story, “is an established doctrine, and not “open to controversy.” 2 Story’s Eq. § 1201, and note 2. Such conveyances create a resulting trust, which is not the subject of Seizure or sale. But by the levy of an execution upon the premises there is created an equity in behalf of the creditor, which can be reached by the aid of a court of chancery; and this is one of the most important sources of equitable jurisdiction and power. McDermot v. Strong, 4 Johns. Ch. R. 687. Scott v. Scholey, 8 East. 467. Waterman v. Cochran et al., 12 Vt. 699" court="Vt." date_filed="1839-08-15" href="https://app.midpage.ai/document/waterman-v-cochran-6572405?utm_source=webapp" opinion_id="6572405">12 Vt. 699.

If in this case the money paid for the land was the property of the wife, constituted part of her separate property, and was subject to her sole disposition and use, then it is evident a court of equity should protect it for her benefit. But if by the marriage, or otherwise, that money became the absolute property of Rufus Barron, and as such was vested in real estate, then he has the equitable interest therein; he alone is the cestui que trust, and the property is held by the trustee for his benefit. In such case it is the duty of a court of equity to protect the title of this plaintiff under his levy, by decreeing the payment of his execution, or the conveyance of the legal interest in the premises upon which the execution was levied, as prayed for in the bill.

At common law, by the marriage the husband is seized of the freehold, jure uxoris, of all lands, of which she was seized of an estate of inheritance, at the time of their marriage. Co. Litt. 351, a. And he takes the rents and profits during their joint lives, and, in case of his survivorship, in some cases, during his natural life, as tenant by the courtesy. If she is seized of an estate for her own life, or per auter vie, the husband is seized thereof in right of his wife, and is entitled to the rents and profits. To all her chattels real, the husband becomes entitled, with the power to sell and otherwise dispose of the same, as he pleases during his life; and in case of his survivorship they become absolutely his. Of all her personal chattels capable of immediate and actual possession, he becomes likewise the absolute owner. To her dioses in action, as debts due by bond, note, simple contract, or otherwise, he has a qualified right,’ rendered absolute by reducing them into possession during coverture; if not so reduced, they pass to the administrator of the wife. 2 Kent’s Com. 113.

This right of the husband to the property of the wife is acquired in consideration of the obligation resting upon him by the marriage to pay her debts, as well as to maintain her and her children. But while this right is given to the husband over the property of the wife, no provision at common law is made to secure the performance of the corresponding duties of the husband to the wife, — as having this claim to her property, he is enabled to transfer and dispose of it, or, upon his bankruptcy and insolvency, the property would vest in his assignees for the benefit of his creditors, and his wife, whatever may have been her fortune, may, with her children, be left destitute of the means of subsistence. To remedy this deficiency in the common law, courts of equity, from the earliest period, have exercised their power by giving to the wife a right to a provision out of her own property, and which is termed, the equity of the wife. It was formerly considered, that this equity could be protected only where the husband was seeking the aid of a court of equity to obtain possession of the wife’s property. 1 P. Wms. 460. 2 Story’s Eq. § 1414. But since the case of Lady Elibank v. Montolierz, 5 Ves. 737, the wife is permitted to actively assert her claim in equity, as plaintiff. “ The equity is the same, in whatever form or by whomso- “ ever presented.” 1 Lead. Cas. in Eq. 333.

It was also formerly considered, that this equity was confined to the absolute personal property of the wife. But afterwards it was extended to the rents and profits of real estate, in which she had a life interest. And at the present day this equity has a more extensive application, and is attached to the rents and profits of all her real estate, whether legal or equitable, whether they are of inheritance, or for life, and whether leasehold estates, or a trust term for years. Clancey 445-6. 5 Myl. & Craig 97, 101 to 103, Sturgis v. Champneys, 4 Hare 1. Hanson v. Keating, 2 Story’s Eq. § 1410. And whatever qualification may he found in ” the application of this doctrine to different cases, that qualification has no existence, where the husband and' wife are living separate and apart, without any fault on the part of the wife, nor in case of the bankruptcy or insolvency, of the husband. 5 Vesey 517, Lamb v. Milnes. 10 Beav. 324, Wilkinson v. Charlesworth, and Maisack v. Lyster. In which Lord Langdale disapproved of the case Vaughan v. Burk, 13 Sim. 404.

In relation to her personal property, as well as her choses in action, this equity of the wife will equally be protected. It has been, and with some qualifications, is now held, that if her personal property had been actually reduced into possession, and is not a mere right or thing in action, so that a complete legal right is vested in the husband, the wife’s equity can no longer be enforced. 1 Eq. Lead. Cas. 351. And that whenever he was pursuing the common remedies at law for the purpose of reducing into possession, the personal property of the wife, courts of equity will not interfere, but will ordinarily remain passive. 2 Story’s Eq. § 1403. But it is now held, and the cases are not unfrequent, in which the . husband has been restrained by injunction from enforcing his legal j remedies to obtain the wife’s property, or reducing to possession, • the wife’s choses in action, for the purpose of enforcing her equity to a settlement. 2 Kent 121 and note 6. Clancey on Mar. Wom. 466. 1 Eden 506, Mason v. Masters. 1 Roper on Hus. and Wife, 271. 2 Sim. 167, Pierce v. Thormby. 5 Johns. Ch. R. 477, Kinney v. Udall. 4 Paige, 74, Van Epps v. Van Deusen, and this is regarded as a salutary rule in case of the insolvency of the husband, or separation from his wife without fault on her part. In the case of Eedes v. Eedes, 11 Sim. 569, it was held, that where a married .woman left her husband, and was living separate from him, but not in a state of adultery, she was entitled to a settlement out of a sum in stock, to which her husband had become entitled in her right. If the husband has obtained the possession of the prop- . erty without suit, and it still remains in his hands, he will, in many cases, be adjudged the trustee of the wife; this was so decided in this State in the case of Porter v. Bank of Rutland, 19 Vt. 410" court="Vt." date_filed="1847-03-15" href="https://app.midpage.ai/document/porter-v-bank-of-rutland-6573645?utm_source=webapp" opinion_id="6573645">19 Vt. 410. 2 Kent 146. Clancey 260. If the property of the wife have been received and appropriated by the husband to his use, other circumstances must determine, whether the wife has lost her equity. If they were living together, and the property have come into his possession, and so have been appropriated by her consent, it will be presumed a gift to her husband, and her equity will be lost. But if the property have been so appropriated under circumstances showing that it was to be repaid, then she will stand in j equity, as the creditor of the husband, and her claim will be en- j forced against his executors. Thus where a wife advances mon-' ey from her separate property, to redeem a mortgage on her husband’s estate and takes a receipt for the money, she will stand in the place of the mortgagee, and the heir must redeem it from the wife. Reeve's Dom. Rel. 165. And Lord Thurlow ruled, that if a wife mortgaged her separate real estate for her husband’s benefit, it will be considered the debt of the husband, and that it should be satisfied out of the assets of the husband’s estate. 1 Ves. 186, Clinton v. Hooper; and Judge Reeves remarks, that wherever it appeared from the evidence, that the wife had claimed, that her husband was debtor, or that he had recognised himself as such by proposing to pay her, she is considered, on the death of the husband, as a creditor. Reeve's Dom. Rel. 165.

This equity of the wife, is also sustained in relation to the distributive share of an estate, to which she is entitled by inheritance, and whether that right became vested in her before or after marriage. The right of the husband to that species of property is 1 purely marital, and which a creditor cannot exercise for the hus- ■ band, against his will. In New Hampshire, in the case of Parsons v. Parsons, 9 N. H. 309, it was held, that a distributive share ’ of an intestate estate, to which a feme covert is heir, does not vest absolutely in the husband, but he has simply the same qualified right that he has to her other choses in action. The same doctrine was sustained in Wheeler v. Moore and Tr. — Parker, C. J., uses this emphatic language: — “ That a husband has a right to “ claim such distributive share to his own use, but that he is not “ obliged to exercise that right. If he omit so to do, on his death, “ the right will survive to the wife in her own right, and as heir “ to the estate, and if he neglect or refuse to reduce it to posses- “ sion, it is clear, that after his death, neither his heirs, or credit- “ ors, could assert any claim to it.” And it was held in that case, that such property, until so reduced to possession, was not at law subject to an attachment at the suit of the creditors’of the husband, or to the process of foreign attachment. 12 N. H. 164, Marston v. Carter.

In Mass., at law, the decisions are otherwise, and the interest of the husband in his wife’s distributive share of an intestate estate is subject to be attached, in the hands of the administrator, by the trustee process, at the suit of a creditor of the husband. This right is there, as it is now in this State, given by express statute, and extends to legacies and' other effects in the hands of the administrator. C. 109 § 62 : 20 Pick. 563. Wheeler v. Bowen. Ibid. 517, Hayword v. Hayword. But in the last case it was held, that if the husband died without reducing the property into possession, it survived to the wife. And in the case of Davis v. Newton, 6 Met. 537, on a bill in equity, it was ruled, that whatever may be the rights of the creditors at law, yet at any time before distribution, the court will protect the equity of the wife, and compel them to make suitable provision for her support, and that of her children.

In New York, Chancellor Kent observes : — 2 Kent 123, 114, that the leading provisions and principles of the English courts of equity, have been incorporated into the equity jurisprudence of that State, and that legacies and distributive shares accruing to the wife during coverture, stand on the same footing, the husband having simply a qualified interest therein, subject to the equity of the wife. 6 Johns. Ch. 178" court="None" date_filed="1822-07-01" href="https://app.midpage.ai/document/haviland-v-bloom-5550521?utm_source=webapp" opinion_id="5550521">6 Johns. Ch. 178, Haviland v. Bloom. 5 Johns. Ch. 198, Schuyler v. Haylee.

In this State, a similar view has been entertained; and the case of Short v. Sampson and Trustee, 10 Vt. 446" court="Vt." date_filed="1838-02-15" href="https://app.midpage.ai/document/short-v-moore-6572066?utm_source=webapp" opinion_id="6572066">10 Vt. 446, contains the elements of the doctrine in relation to the equity of the wife, as it is held by the courts of chancery in England and most of the States in this country. In that case it was held, as in New Hampshire, “ that the husband has no such interest in money decreed by the “ probate court to be paid to the wife by the administrator, as her “ distributive share in her ancestor’s estate, as could be attached “ by the creditors of the husbandand the reason assigned is this — “ that the right of the husband to this share, even after de- “ cree of distribution, is only conditional; ho specific money pass- “ es by the decree. It is, at most, a mere chose in action, and as “ such, belongs to the wife, until the husband reduce it to posses- “ sion.” And in relation to the equity of the wife, the court say, “ that in chancery, such choses in action are treated as the sepa- “ rate property of the wife, and on application will interfere to pre- “ vent the husband from squandering such property, and compel “ him to make suitable provision for the wife, or else appoint a re- “ ceiver for her benefit; and that it would be unreasonable to per- “ mit the creditors of the husband to reach such property.” In this case, there is made a direct application of the doctrine of the wife’s equity to her distributive share in the estate of her anees- ■ tors, as against the husband and his creditors. In all these cases, to which we have referred, the property of the wife, whether acquired by gift, devise, or inheritance, before or during coverture, is regarded as the property of the wife and not of the husband;— and if that right has not been expressly and formally waived, or forfeited by misconduct, it will be protected in equity against the husband in any proceedings, which may be adopted at law, or otherwise, for the purpose of reducing it to his possession. ' And will be equally protected against his assignees, or creditors; for it has been justly observed, that the “ equity of the wife is para- “ mount to the interests, powers, and rights of the husband, and “ of all persons dealing with him.” 1 Lead. Cas. in Eq., 352;— and by Lord Langdale it was held, that this protection would be equally extended to the income of the property, in case of the insolvency of the liusband, or their separation. 10 Beau. 324, Wilkinson v. Charlesworth.

The amount embraced within this equity of the wife, rests in the discretion of the court; formerly it was limited to one half.— In the case of Davis v. Newton, 6 Met. 544, “ it was held by Ch. “ J. Shaw, that the amount depended upon circumstances — as the “ amount of the property belonging to the wife,- her age, health, “ and condition, as well as the number, age and condition of her chil- “ dren. In this respect, where the matter comes properly before “ the court, it is competent for the chancellor to obtain the aid of “ a master to inquire into their circumstances, and to report'what “ sum would be a suitable provision. But in cases where the pro- “ perty is small, and has been kept entirely distinct from the hus- “ band, and where it is evident, that the exigences of the family “ require it, it would be proper to appropriate the whole of such “ property to the use of the wife and her childrenand also the interest or income of the property, in case of their separation, or insolvency. 1 Lead. Cas. in Eq., 353. 5 Johns. Ch. R., 464, 478. 6 W. 25. 3 Kelly 193, 205.

The application of these principles, to this case, is not a matter of much difficulty. The money, to which the wife of Rufus Barron was entitled by inheritance from the estate of her father, was in the hands of the administrator at the time of the marriage and purchase of the farm. But little has been paid to her; some was paid to her husband, by her consent. The arrangement, for the purchase -of the farm and manner of payment therefor, was a matter of mutual consent and agreement between the husband and wife and trustees, for the purpose of preserving the property as the separate estate of the wife; and the amount paid by the administrator to the holder of the notes given for the farm, was jmid in pursuance of that mutual arrangement and agreement; and to that extent, we think it clear, that the money paid was the property of the wife. And it is equally evident, that the same consequences follow in relation to the money handed by the administrator to the husband for the purpose of paying the balance due on those notes from the wife. The facts in relation to the manner in which-the money was handed to him by the administrator, are not disputed. When requested by the administrator,^he refused to collect the notes belonging to his wife, for the purpose of paying the notes given for the farm, saying that no part of that estate should come into his hands, — but he consented, if the money was collected by the administrator, to carry the money to the holders of the notes, if it would be an accommodation to him.

If this, as has been contended by counsel, can be considered as a reduction of this property into possession by the husband, still ' as it was immediately applied upon the notes given for the land, in pursuance of their previous arrangement, no court of equity could refuse to protect it, as the property of the wife, the same as if the money had been sent by other hands. But the authorities are clear, that that was not such an act in reducing the property of the wife into the possession of the husband, as can effect the right or interest of-the wife at law, or in equity. Other considerations must unite with the fact of actual possession, to affect her right of survivorship, or her equity to a settlement. To produce such results, Chancellor Kent remarks, 2 Kent, 118, — the possession of the husband must be in his character as husband, obtained in the exercise of his marital rights, and for the purpose of its appropriation to 'his own use. In the case of Baker v. Hall, 12 Ves. 497, the wife was residuary legatee; and the husband took possession of the real and personal estate of the testator, as executor; and it was held by the master of the rolls, that, as he took possession in that character, and not as husband, it could not be deemed sufficiently reduced into possession to prevent its survivorship to the wife. In Wall v. Tomlinson, 16 Ves. 413, a transfer of'the wife’s stock to the husband, as trustee, was held not to be a reduction into possession, so as to bar the wife’s survivorship; for itwas made diverso intuitu.

The case under consideration, is stronger than those, in -behalf of the wife. As the money was handed to the husband by the-executor and trustee of the wife, for the specific purpose of its appropriation in payment for the land, and in that character was received by the husband, under his disclaimer of any right thereto. It is difficult to conceive of a case, where the property of the wife has been kept more distinct from the husband, than in this, and for the purpose of securing her maintenance and the support of her children. In the same condition it remained, when paid towards the farm; for there had been no, exercise of marital right in claiming it; and when the money was so paid, it was taken from the separate property of the wife, which it is the duty of a court of chancery to protect.

And on the execution of the deed to Mrs. Sessions, in pursuance of their mutual arrangement, the trust estate enured to the wife, from whom the consideration came, she is to be regarded as the sole cestui que trust under that deed, to the extent of the purchase money paid from her separate estate. Her interest is purely equitable, and can be obtáined only by the aid of a court of equity; and chancery will not permit that property to be taken from its jurisdiction by the husband,-or his creditors, until there has been secured the equity of the wife.

This view of that part of the case renders less important the examination of the case in relation to the post-nuptial agreement between Rufus Barron and his wife, yet as the question is directly presented in the case, it is proper to remark, that- the agreement evidently would be of no avail at law. At common law the husband and wife are treated as one person; her legal existence is merged in that of her husband; their contracts, made when single, are avoided by the intermarriage ; when made during coverture, they are of no binding obligation; the husband can neither grant to, or covenant with his wife, for that supposes her to possess a distinct and separate existence. From this principle arises the necessity, at law, .of all conveyances, covenants, marriage settlements, and the like, being made through the interposition of trustees. Story’s Eq. § 1380. 2 P. Wms. 79. 2 Yes. 190. But courts of equity, for more than a century, have disregarded that rule, and for many purposes treat husband and wife as distinct persons, capable of contracting with each other, and of having separate estates, debts and interests. Story’s Eq. § 1368. 2 Johns. Ch. 539. And as a general rule, whenever a contract would be good at law, when made with trustees for the. wife, that contract will be sustained in equity, when made with each other without the intervention of trustees. It is upon this principle, that in many cases the husband will be held as trustee of the wife, and the wife entitled to the privileges belonging to a creditor of the husband. Story’s Eq. 1373, 1380.

The agreement in this case was made March 14, 1844, nearly three years after their marriage, and in substance, after, agreeing to separate, the wife renounces all further claim upon the husband for his services, or support for herself and children, and agrees that she will contract no debts on his account; and the husband renounces all claim for her services, or support. This agreement, if carried into effect, should be enforced so as to fulfil the evident intention of the parties. Without looking at the instrument in any other light than with reference to its effect upon the property of the wife, it was manifestly his intention to renounce all his claim or marital right to her future services, as well as support from her property, leaving the same for her support and that of her children. That an agreement of that character, made directly between husband and wife, and without the intervention of trustees, will be sustained in equity, is clearly sustained by authority. Justice Story remarks,-2 Story’s Eq. § 1372,— “ That if the husband should, for good reasons, after marriage, “ contract with his wife that she should separately possess and en“joy property bequeathed to her, the contract would be upheld “in equity.” Chancellor Kent remarks,— 2 Kent 147, 154,— “ That a wife may contract with her husband, even.by parol, after “marriage, for a transfer of property from him to her,' or to trustees for her, provided it be for a bona fide and valuable consid- “ eration, and she may have that property limited to her separate “use.” 1 P. Wms. 125. 2 Vern. 659. 2 Johns. Ch. 537" court="None" date_filed="1817-09-02" href="https://app.midpage.ai/document/livingston-v-livingston-5550226?utm_source=webapp" opinion_id="5550226">2 Johns. Ch. 537. 10 Ves. 146. He further remarks, “that gifts by the husband to “the wife will be supported as her. separate property, if they be “not prejudicial to creditors, even without the aid of trustees.” In the case of Herr’s appeal, 6 Law. Rep. 408, it was held in Penn, by Ch.'J. Gibson, that where the husband was in „the habit of giving his wife the specie that came to him in the course of his business, until it amounted to $4500, it became the property of the wife, as against the heirs at law, and in the nature of a provision for her; and this gift and contract, made after marriage, and without the intervention of trustees, was enforced against his estate. In the case of Searing v. Searing, 9 Paige 284, the husband permitted the wife, after marriage, to receive the avails of her property, which she held before marriage, and re-loan the same on securities in her own name, and afterwards gave her $2000 which was loaned by her on like security, on her releasing her right of dower to' his farm on its sale. It .was held, that this gift and contract, though made after marriage and without the intervention of trustees, was binding upon the husband and his estate. And though such gifts would not be sustained against creditors, who were such at the time, yet they will be sustained against the husband and subsequent creditors. 3 Johns. Ch. 490, Reed v. Livingston. The same doctrine was sustained in this State in the case of Pinney et al. v. Fellows, 15 Vt. 536. In that case the court remarked, “that upon the receipt of property by the hus- “ band from the wife, if, after marriage, he shall, for sufficient rea- “ sons, contract with the wife, that she may possess and enjoy separately property bequeathed to her, or .inherited by her, or such “ as she may be the meritorious cause of acquiring, equity will “uphold such post-nuptial agreements, in cases in which the claims “of creditors will not be prejudiced by so doing;” and chancery would need no better reason for upholding such agreements, than the insolvency of the husband and his neglect to discharge his marital obligations. The orator in this case was not a creditor, at the time of this agreement, nor until a long time afterwards,— so long, that no inference can he drawn, or suspicion arise, that it was done in view of future indebtedness.

In such case "it is equitable, that this agreement should be sustained, not only against the husband and his heirs, but against all others claiming under him, who at least were not creditors at the time, for he has parted with no property, that was his own. He has simply renounced all marital rights to the property of his wife, and which no creditor can compel him to exercise against his will, and which a court of equity would' have required him to do, without such an agreement, not only in relation to the principal of her estate, but also to its income and profits, where a separation has taken place by act of the husband, or by their mutual consent.

So far, therefore, as the land, upon which the orator’s execution was levied, was paid for by the property of the wife of Rufus Barron, we think this creditor can have no claim thereon for the payment of his debt. .

It is further insisted, that about $300 was paid towards the farm by Rufus Barron from his own estate, independent of the money paid from the property of his wife. This is purely a question of fact; for no question has been made of the right of this creditor to the decree prayed for, if the money was so paid by him.

We are without the aid of an answer from Rufus Barron on this subject, who, it is to be presumed, could have told the amount and circumstances attending such payment, if made. The orator, however, has produced the testimony of Mrs. Burgess, Oliver Curtis and Mr. Jennings, from which it appears, that on different occasions Mrs. Sessions has stated, that Rufus Barron had an interest in the land of about $300, and that she was desirous of having it repaid for the benefit of his children by his former wife. Mrs. Sessions, in her answer, states the payment of the whole purchase money for the farm to have been made by her and the wife of Rufus Barron, and makes a distinct denial of any interests in him in the land. Mr. Perkins, the administrator, who assisted in purchasing the farm, and who was to see to the payment of the notes given therefor, states, that the whole sum, principal and interest, required for the payment of those notes, was raised from the property of Mrs. Sessions and the wife of Rufus Barron and furnished by him for that purpose. If the testimony rested here, there is not that preponderance'of testimony, that would warrant a decree for th'e orator. But the circumstance, that exerts a controlling influence mpon this question, arises from the settlement made in 1844, when the agreement for separation was made and signed by Rufus Barron and his wife. That settlement was made with much deliberation, and with the aid and assistance of mutual friends; and as their difficulties had brought to its final termination their cohabitation as husband and wife, it was evidently their object and design to bring' to a similar termination all matters in which they had a community of interest. The terms of their mutual separation'were agreed to, as well as the future possession and support of their children. The claim of Rufus Barron, arising out of the occupation and use of the farm was the subject of their negotiation and settlement, and the same motive, that induced him to present his claim for improvements he had placed on the farm, in making fences, constructing water-courses, and increasing its general productiveness, would have caused him to present his claim for money advanced in its purchase, if he had so advanced it. Mr. Perkins and Mr. Benson both testify, that he made no such claim, and that they understood the only claim he had was in right,of his wife, except for the improvements and personal property; and when the amount of his claims were stated and receipted, and the mutual releases between Rufus Barron and his wife executed, we can but believe, that it was considered a full settlement of all claims, that he had upon them, or the premises. '

It becomes unnecessary to,refer to the objection made, that Mrs. Barron is not made a party to this bill, as no decree is made affecting her interests. But we cannot perceive, how a decree could have been made for the orator, affecting the interests of the wife, without her being made a party defendant. Grant and Wife v. Van Schoonhoven, 9 Paige Ch. 255" court="None" date_filed="1841-08-17" href="https://app.midpage.ai/document/grant-v-schoonhoven-5548592?utm_source=webapp" opinion_id="5548592">9 Paige 255. Story’s Eq. Pl. 207.

The result is, that the decree of the chancellor must be affirmed.