Temple v. Hawley. The case bears more upon another point of the one under consideration, and will be more fully stated hereafter. When the order of June 4th, 1389, was made, the chancellor said, "the court has not the power to authorize an infant to execute a conveyance of real estate which would deprive her of the absolute control of her interest therein by means of a trustee for the benefit of some other person, or to change the course of succession. The proper course therefore is, for Miss James herself to join with her intended husband in the conveyance to the trustee of the real and personal estate intended to be conveyed in trust, her guardian joining with them in the conveyance or marriage settlement. This will protect the property against the marital rights of the husband, and to complete the arrangement, the intended husband should covenant with the trustee to join with his wife when she shall be of age, in a deed of confirmation to the trustee. The mother is appointed the special guardian for the purpose of assenting to the marriage, and approving of the marriage settlement by joining in the deed of trust and designating the trustee." (MS. note of the Chancellor's decision, June 4, 1839.) In Simson v. Jones, Sir John Leach said, "this court has no authority to give an infant a power of alienation, even for her own benefit." It may be stated then as the result of these authorities, that where an infant on the eve of her marriage, executes a settlement of her real estate, it is a voidable conveyance, which she may repudiate upon her attaining her majority. Whether she can elect to disaffirm it during her coverture, is a vexed question; but the preponderance of opinion is that she cannot. That she can affirm it, during coverture, after she becomes of age, is perfectly clear, in this state. A conveyance executed and acknowledged as prescribed by our statute, would convey all her interest; and such a deed of confirmation was contemplated by the chancellor, when he made the order in this case. Until the wife does repudiate or disaffirm the conveyance or settlement, in an effectual manner, it is binding, and operates upon the estate in the land. And this constitutes the essential difference between the effect of the settlement in controversy as Temple v. Hawley. it now is, and its effect, had Mrs. Temple joined in the execution of the deed. We have seen that the chancellor expected that she would execute the deed. The order as entered, although it does not say in express terms that she shall execute it, yet plainly shows that her execution was intended. The recital in the order is, that the whole of the real estate of Miss James was to be conveyed to the trustee. By whom could it be conveyed, except by Miss James herself? The order does not appoint her mother the special guardian to convey the estate, either in Miss James' name or otherwise. She is at most, to join in the deed; not to convey the property, but to express her assent to the marriage, her approval of the settlement, and her designation of the trustee. Second. In regard to the personal estate of Miss James, embraced in the settlement, which is the next question in the case, it undoubtedly vested in the trustee. Not because the special guardian could convey it, but because by the marriage it would have become the property of the complainant, and his covenants in the marriage settlement preclude him from questioning the title thereby vested in the trustee. As to the personal estate, it is in effect, his settlement, not Mrs. Temple's. Harvey v. Ashley, (3 Atk. 607, 613;) Williams v. Williams, (1 Bro. C. C. 152;) Trollope v. Linton, (1 Sim. & Stu. 477 ;) Simson v. Jones, (2 R. & M. 365.) 2 Roper's H. & Wife, 26. Third. The next and important question in this suit is the effect of the settlement upon the complainant's rights in the real estate; and upon this point I have felt much doubt and hesitation. Generally, the estate of the husband is bound, and he is precluded from disturbing the settlement, or even aiding his wife to set it aside, when it is voidable as to her. 2 Kent's Com. 236, 2d ed. 2 Roper's H. & W. 27. Atherley on Marr. Settl. 41. Durnford v. Lane, (1 Bro. C. C. 106;) Milner v. Lord Harewood, (18 Ves. 275, per Lord Eldon.) The case of Lee v. Stuart, (2 Leigh, 76,) before cited, is a strong authority against the complainant. There Lee and his wife, she being an infant, executed a settlement in contempla Temple v. Hawley. tion of marriage, and he covenanted with the trustee, very much as the complainant has done here. Five years after the marriage, there having been no issue, Lee and his wife exhibited a bill, praying to have the settlement set aside. The wife concurred in this prayer on a private examination under the direction of the court. The case was put by the complainants, on the ground that the deed was of no binding effect on the infant wife. The counsel for the trustee conceded that the wife, after coverture might avoid the deed, but they insisted that during coverture she was disabled to annul or avoid it. The court of appeals, in a brief opinion, affirmed the decree of the chancellor, refusing to annul the marriage settlement, and held that Lee being a party to the deed, was bound by it, no fraud or imposition on him being suggested. The court said that the object of Lee was to enable his wife to dispose of the property for his benefit, or according to his pleasure. They laid much stress upon his covenants, and said that, "so far from a court of equity "assisting him to frustrate the settlement, it ought to interfere "if necessary, to prevent him from assisting her in defeating "it." The case of Tabb v. Archer, (3 Hen. & Mun, 399,) in which it was held that infants were bound by marriage articles, was not cited by the counsel, or referred to by the court. The case before me is wholly relieved from the odium which attached to Lee v. Stuart; for Mr. Temple, with a liberality which is highly creditable, has in his bill prayed that a just and proper settlement of the whole estate shall be made under the direction of the court, and expressly submits himself to the direction of the court in that behalf. Moreover, this case differs from Lee v. Stuart, in one very important particular, for there the wife had conveyed, and so far as she could, vested a title in the trustee. It was a voidable title, doubtless; but here she has conveyed nothing at all. It is insisted by the complainant's counsel that the complainant executed the deed in ignorance both of the fact that his intended wife was not a party to it, and of its total inefficacy as to her interest in the real estate; that his conveyance and covenants are therefore made under a mistake, and are destitute of any consideration; and that he ought not to be held bound Temple v. Hawley. by a conveyance which divests him of all his rights, while it effects none of the objects which it sets forth as the inducements for his release of those rights. The bill charges that the settlement was proposed by the complainant himself. That the whole proceedings were conducted by Mr. James King, the counsel and legal adviser of Mrs. James; that neither the complainant or Miss James were consulted in regard to the terms of the settlement; that the complainant supposed Miss James would be consulted, and was willing to assent to whatever she approved; that when the deed was presented to him for execution he did not examine or peruse it, and was not acquainted with its provisions, but immediately executed it, believing that his intended wife assented to it and understood it, and that it was an operative conveyance as to her interest in the estate. He disclaims the idea of any intentional imposition or wrong, but argues that the error was caused by the haste in which the settlement was prepared and executed. Many of these allegations in the bill could only be proved by Mr. King, who is dead. It appears from the petition to the Chancellor and other papers, that Mr. King had the entire charge of the proceedings, and he was in no sense the counsel of the complainant. The settlement bears date on the eleventh, and the marriage was solemnized on the twelfth day of June, 1839. The Chancellor's order was made on the fourth of June. The despatch which was used in getting up the settlement, the palpable omission to pursue the decision and order of the Chancellor in the preparation and effect of the deed itself, the confidence manifested by the complainant in the accuracy and fidelity of the counsel charged with that duty by the friends of Miss James, together with the natural ardor and impatience of the bridegroom under such circumstances; might well induce a court to believe that the complainant was ignorant alike of the omission in the settlement of the Chancellor's directions, and of the consequent invalidity of the instrument. By the marriage without any setttlement, the complainant would have become entitled absolutely to the personal estate, and to a life estate in all the realty in question. When by the Temple v. Hawley. settlement he relinquished all these rights, we look for some motive or equivalent. The deed in question professes to give the equivalent, and to exhibit the motive. It is, in form, a conveyance of the whole real estate and $25,000 of the personal estate, to a trustee for the benefit of the intended husband and wife and their issue. As to two thirds, the wife is to take a separate estate for life with power of appointment among the children of the marriage to take effect after her death; and in the remainder the husband takes a life estate with a similar power of appointment. A valuable provision for life, and a control over the inheritance which may be of great importance in the proper disposition and settlement of the issue of the marriage, is secured to him. When, therefore, we find that this deed, which professes to accomplish all these ends, is wholly and radically defective, that it is hollow in its pretences, and valid in nothing but the divesting of the life estate which the complainant would otherwise have taken in the whole realty ;. good faith seems to require that it should not be held binding upon him. The consideration for his deed, turns out to be wholly fallacious. It is true, that if Miss James had joined in its execution, it might not have become wholly operative. That would have depended upon her action. The acceptance of benefits under it, in regard to the separate estate thereby secured to her, would have confirmed it, and possibly her assent might be inferred from other circumstances. See Durnford v. Lane, (1 Bro. C. C. 116, per Lord Thurlow.) Milner v. Lord Harewood, (18 Ves. 276-7, per Lord Eldon.) At all events, the trustee would have been clothed with her title for the time being; and whatever this might have been in actual value, it is what the settlement held out as the inducement for the husband's relinquishment of his rights, and the settlement has failed to attain that object. In every case where the husband has been held bound by the settlement when the wife was not bound, she has executed the deed, and thus conveyed a title, which at the worst was only voidable. In Milner v. Lord Harewood, this was not only the fact, but the husband there covenanted to be bound, giving the wife, by the deed, the option to accept or refuse. The case of |