4 Whart. 445 | Pa. | 1839
The opinion of the Court was delivered by
The trust here having been created by a deed executed during the coverture of the said Barbara, in the lifetime of
The mortgage on its face purports to have been executed in pursuance of the powers contained in the deed creating the trust ; and the question raised by the errors assigned is, — were these powers properly executed, so as to render the mortgage valid and effectual I
The first objection to the mortgage is, that it was executed before revocation and alteration of the uses declared and set forth in the deed of the 31st of January, 1825; and that until such revocation and alteration were first made by a previous, distinct and separate deed, executed by the said Barbara in the presence of two or more credible subscribing witnesses for the purpose, - she had no power to execute the mortgage. Admitting, however, that without a previous revocation and alteration of the uses declared in the deed of 1825, she had no power to execute the mortgage, still by her deed of the 7th of December, 1827, which contains the mortgage, she has expressly revoked the old uses created by the deed of 1825, and created and declared new uses, which, according to the principle of
But it is objected again, that if the power created by the deed of 1825, be considered well executed, still the purpose for which the money was raised upon the mortgage was not such as to warrant the giving of the mortgage. It is contended that the money was not borrowed or obtained for the use of the wife, but for that of the husband, and therefore contrary to the object for which the powers were granted, and to decide otherwise would be overuling the principles established by this Court in Lancaster v. Dolan, (1 Rawle, 231.) The case of Lancaster v. Dolan, goes no ihrther than to determine that real estate held in trust for the use of a feme covert, cannot be sold and disposed of or mortgaged by her withdqt a power expressly given to her for that purpose ; and if given, that limust be executed in the manner and form directed, if any be prescribed, otherwise it will not avail. This is doubtless contrary to the English law on this subject, which looks upon her, in such case, as the absolute owner of the trust estate, capable of exercising the highest acts of ownership over it, by selling or disposing of it in any way she pleases, unless restrained from doing so by the deed or instrument
Judgment affirmed.