delivered the opinion of the Court.
This suit is brought by a married woman to recover of the appellee, her father, the sum of $3094.10, claimed to be due by him as guardian.
In pursuance of this agreement, the husband took possession of the property, and in 1868 it was conveyed to him by the appellee, the consideration set forth in the deed being six thousand dollars, in part payment of which, the money due to the appellant by the appellee as guardian, was applied.
The evidence in regard to the circumstances under which the receipt or acquittance was executed, and in regard to the facts concerning the purchase and conveyance, and the application of the money due to the appellant by the appellee as guardian, to the payment of the tract of land in question, is conflicting and contradictory..
The appellee, however, contends, if the appellant consented that her husband and the appellee should ascertain the amount-due by the latter as guardian, and that said amount was so ascertained, and that her husband with her knowledge and acquiescence received from the appellee a deed to himself of certain real estate in full acquittance of said amount, and that the appellant after her arrival at age recognized and acquiesced in said settlement and appropriation, that then she is not entitled to recover in this suit.
Now it is true a cestui que trust, may he hound by a breach of trust, committed with her knowledge and at her request, provided she is not at the time laboring under the disabilities of coverture or infancy. And although it may he conceded that a married woman in regard to her separate estate may he considered to this extent at least “sui juris,’’ yet it is well settled that she cannot he hound by acts of acquiescence in regard to the disposition of it, unless she was at the time of such acquiescence of lawful age. Bateman vs Davis, 3 Mad., 98; Walker vs. Symonds, 3 Swans., 69; Underwood vs. Stevens, 1 Merr., 717; Smith vs. French, 2 Atk., 243; Needle’s Case, Hob., 225; Lench vs. Lench, 10 Ves., 511; Montford vs. Cadogan, 19 Ves., 634 ; Cresswell vs. Dewell, 4 Giff., 460.
Now in this case we are dealing with transactions between guardian and ward, and husband and wife. The appellee was not only the guardian hut the father of the appellant. As guardian he was indebted to her in the sum of $3094.10, and under the laws of this State, the money thus due belonged to her as her separate estate. It was his duty then and a plain duty, either to have paid it
We must do the appellee the justice to say, however, that he insists that this application was made with the knowledge and acquiescence of the appellant, but we are now in a Court of law, dealing with and determining the legal rights of the parties, and conceding for the purposes of this case, that the deed of the property to the husband and the application of the separate estate of the appellant in part payment of the purchase money, was made with her knowledge and acquiescence, yet the record shows, she was at that time under the age of twenty-one years, and could not therefore be bound by acts of acquiescence in regard to transactions and dealings between her husband and the appellee. If this be so, and the appellee seeks to' bind her hy acts of acquiescence after her arrival at lawful age, then it is clear, both upon principle and authority, that such acts of acquiescence and adoption must be with a full knowledge of all the facts, and with a full understanding of all her rights. See Lewin on Trusts, 663, and cases cited.
It follows then from what we have said that if the money due to the appellant hy the appellee as guardian, was applied in part payment of property sold and conveyed by the appellee directly to her husband, without her knowledge and consent; or if such application was made with her knowledge and consent hut at a time when she was laboring under the disabilities of infancy, then in order to bind her hy acts of acquiescence after her arrival at age, such acts must be with a full knowledge of all the facts and circumstances surrounding the transaction and with a full knowledge of her rights. The Court therefore erred in
But it further appears that the husband gave to the appellee his note for the unpaid purchase money, and that upon this note suit was brought and judgment recovered. The day after the rendition of the judgment the husband conveyed to the appellant certain personal property in consideration of the sum of $3094.10, being in fact the exact amount found to be due by the appellee as guardian to the' appellant. The consideration thus set forth was supported by the affidavit of the appellant, and the bill of sale was recorded.
The appellee contends and the Court so instructed the jury, if the consideration set forth in the bill of sale was the same debt due to the appellant by the appellee as guardian, that the acceptance of the bill of sale by the appellant for the purpose therein expressed, was a payment of said indebtedness.'
Row whether the consideration set forth in the bill of sale be considered as a debt due by the appellee as guardian, or if paid by him to the husband with the authority of the wife, and in that light a debt from the husband to the wife, in neither aspect can the mere acceptance of the bill of sale be considered as payment. This of course must depend upon the intention of the parties. If it was executed by the husband to secure an indebtedness by Mm or by any one else, and it was so understood and accepted by the appellant, then of course it could not operate per se as a payment of such indebtedness. There is evidence in the record tending to show that it was executed merely as a security of an existing indebtedness, and the question therefore whether it was accepted in payment should have been submitted to the jury.
It is contended however, on the part of the appellant, that a husband cannot under the laws of this State convey property directly to his wife, and that in a Court of law
But it is also insisted, that under sec. 2, Art. 45, a wife cannot dispose of her choses in action, except by a joint-deed with her husband. It is true, where a particular mode is prescribed in a deed of settlement for the disposition of a separate estate of a married woman, it operates as a negation of all other modes. In other words, the settlor has the right to say how and in what manner the wife shall dispose of the property settled upon her, and the mode thus .prescribed is binding on the parties. The Legislature too, in creating a statutory separate estate for the wife, may provide the mode and manner of its disposition. ,But we do not think the Legislature intended to restrict the disposition of the wife’s choses in action to a conveyance by joint-deed with her husband. The right of the wife to dispose of her choses in action by assignment or otherwise was recognized in Barton’s Executors vs. Barton, 32 Md., 214; and in Whitridge vs. Barry, 42 Md., 140, her power so to do, was expressly decided.
The Oourt erred also, we think, in excluding the evidence offered under the second bill of exceptions. In explaining the circumstances under which the bill of sale was
The appellant’s fifth and sixth prayers were properly rejected. Without being understood as expressing any opinion in regard to the weight of the evidence, it was legally sufficient we think to submit to the jury the question of acquiescence and adoption.
We see no objection to the evidence offered under the first bill of exceptions. It was clearly admissible as tending to show that the ascertainment and settlement was made with the knowledge, and by the authority of the appellant, and the receipt by the husband was admissible as tending to prove payment by the appellee.
The Court having erred in granting the defendant’s first and second prayers, and in excluding the evidence offered under the second bill of exceptions, and in refusing to grant the plaintiff’s third prayer, the judgment must be reversed.
Judgment reversed, and new trial awarded.