of her separate property, and praying to have satisfaction out of these estates by virtue of an equitable lien. The bill was dismissed; not, however, on the ground that such an equitable lien might not be made out and supported, but because there was not satisfactory evidence that the money had been applied in the purchase. The equity of the wife to a lien on an estate purchased by her husband with her separate money, was not denied in the discussion of this case, or in the judgment of the Court; but the plaintiff failed in the proofs necessary to raise it. The widow has a right to redeem in ture lands her joinmortgaged before the settlement. Where the wife joins her husband in a mortgage of her own estate, with no other view than that of lending him the money, we have seen that she has not only a right to be demnified, but also to redeem the premises. In like manner where she is entitled to a jointure out of her husband's lands, which were mortgaged at the time of the settlement, it has been held that the wife has the right of redemption, and that her executor may hold the lands until the mortgage money has been repaid with interest, because the tenant for life ought to be reimbursed the money she paid to set her estate free, and in the condition she ought to have been in. On the other hand, if her jointure lands be unincumbered, and she, after marriage, join with her husband in a fine, and mortgage the land, and the husband jointure dies, there her land is charged, and she shall pay her part lands, after towards disburthening the land; but her executors shall band's not hold the lands, until the mortgage money shall have been repaid, because she herself concurred in laying on the charge, and therefore must concur in the disburthening of it, according to the value of her interest. d 1 Chan. Cas. 271. 2 Vent. 243. 7 Bac. Ab. 639, 640. e 2 Chan. Cas. 99, 100. 7 Bac. Ab. 639, 640. If the wife join in the mortgage the hus death, she in paying must join off the incumbrance. 614 CHAPTER XIII. OF THE EQUITY OF THE HUSBAND TO BE RELIEVED AGAINST A RIAGE. THE equities which have been detailed in the preceding chapters of this book, operate, and are intended solely for the benefit of the wife, or of those claiming under her. The only object of these guards, which a court of equity interposes, is the protection of the interests of married women against the legal rights of their husbands. But the husband also has bis equity; and it is this, that he shall not be deprived by fraud of the rights which the law gives to him over the property of his wife. It is one of the rights of marriage, that the husband shall be entitled to the rents and profits of his wife's real estate during their joint lives, and sometimes during his own, and also that he shall have the entire dominion over her personal property. A woman, too, while she is sole, may dispose of her own property as she thinks fit; but if such disposition derogate from the martial power over it, there may be circumstances under which an after-taken husband would be relieved against the instrument by which the conveyance had been effected, as being fraudulent against him. The rule laid down on this subject is, that if a woman make any conveyance of her own estate before marriage without the privity of her intended husband, or confess any judgment, or acknowledge any statute to affect her estate, other than such as were upon valuable consideration, they shall not affect the husband.a The cases on this head of Lex. Præt. 101. 1 Fonb. 259. by the con veyance. equity may be reduced to four classes: First, where a con- husband, he will not veyance has been made by the wife, of her own property to be bound her own separate use. Secondly, where the conveyance has been made for her use by a third person. Thirdly, Where a conveyance has been made by a woman in contemplation of marriage, for the benefit of her children by a former husband. Fourthly, Where the wife has executed a security for money to a third person. b It by wife in tion of marriage, of her property to her sepa rate use. Howard v. Hooker, is a case belonging to the first class. Settlement There a bill was filed by husband and wife to set aside a contempladeed made by the wife before her marriage with the plaintiff, her husband, and that he in right of his wife might have all her benefit and interest in, or to the estate of Sir John Baker, and receive the rents and profits of the premises. appeared that Lady Howard, previous to her marriage with the plaintiff Sir Philip, had by deed assigned to the defendants all the property which she derived from her former husband for her separate use, and that Sir Philip had after the marriage settled a jointure of 50l. per annum upon her. The decree was, "It not appearing unto this Court that the said Sir Philip had any notice of the said deed till several years after the marriage, nor was privy or consented to the making of any such deed, but having intimation that Dame Elizabeth intended to dispose of her interest in her former husband's estate from such husband as she should marry, broke off the treaty of marriage, which was afterwards brought on again by some friends of the said Dame Elizabeth, and that the said Sir Philip was induced to marry the said Dame Elizabeth, upon the hopes and confidence of having the interest she had in the estate of said Sir John Baker, her former husband, without which he would never have married her; and that the said Sir Philip never knew of the said deed, but the same was a fraud upon Sir Philip; and that therefore no use ought to be made thereof, and decreed the same be absolutely set aside, h 2 Chan. Rep. 81. 1 Eq. Cas. Ab. 59. Settlement by a woman, in tion of perty to her separate use. and no use to be made thereof against the said Sir Philip, or any claiming under him." Carleton v. Earl of Dorset, comes under the same head. Lady Dayril, before her marriage, without Mr. Carleton's contempla privity, had conveyed her estate to the defendants and their marriage, heirs, in trust that they should permit such person to receive of her pro- the rents and profits, as she, whether covert or sole, should appoint. It appeared also that Lady Dayril had assured her second husband that he should enjoy her estate. And it was decreed that the plaintiff, Carleton, should have the possession of the estate against the trustees. So in Draper's case, "the Court seemed to incline, that if a woman doth secretly, without the knowledge of her husband, before marriage, convey a term of years in trust for herself, that this shall be in the power of the husband, so as he may either grant or release the interest of the wife." Settlement by a woman, for her separate use, in tion of a marriage, which does not take place, not void against another e In the above cases the settlements were made by the wives, in contemplation of the marriages, which afterwards took place. But if the settlement have been made by the contempla- wife for her separate use, in contemplation of a marriage, which did not take place, it will not be void against a subsequent husband. This was the case of Lady Strathmore v. Bowes, the facts of which are very peculiar. Lady Strathmore, pending a treaty of marriage with Mr. Grey, con veyed all her real and personal property to trustees for her sole and separate use, notwithstanding any future coverture, which settlement was prepared with the approbation of Mr. Grey. In seven days afterwards, instead of marrying him, she married Mr. Bowes. Bowes, afterwards, by force, compelled her to revoke the uses of the deed of conveyance, to establish which, a bill was filed by Lady Strathmore, and Mr. Bowes filed his cross bill, praying, that the settlement to her separate use might be set aside, as fraudulent, being executed by the Countess before marriage, without his know husband. c 2 Vern. 17. d See 2 Cox's Rep. 33. This fraud is not stated in Vern. e Freem. 29. f2 Cox's Rep. 28. 1 Ves. jun. 22. 2 Br. C. C. by Eden, 345. ledge, and in derogation of his rights, and that the deed of revocation might be established. Mr. Justice Buller, sitting for Lord Thurlow, decreed that the settlement was valid, which was affirmed by the Chancellor on an appeal to him, and afterwards by the House of Lords. The only rule which can be deduced from the above cases of Howard v. Hooker, and Carleton v. Earl of Dorset, is, that if a woman, during a treaty of marriage, convey her property to trustees in trust for her own separate use, and, at the same time, represent to her intended husband that he should have the complete dominion over it, such conveyance would be deemed fraudulent and void, as against such husband. And the inference to be drawn from Lady Strathmore v. Bowes, is, that if a woman, in contemplation of a marriage with a person, whom she does not afterwards marry, convey her property in trust for her own separate use, such conveyance will not be deemed a fraud upon another person, whom she does marry, although she did not communicate to him the fact of such conveyance. But it would seem that, if the conveyance be made pending the marriage treaty, without notice to the intended husband, whom the woman afterwards marries, such deed will be deemed a fraud upon him. There is no case directly establishing this proposition, but Lord Thurlow gave a very distinct opinion to this effect, in his judgment in the above case of Strathmore v. Bowes. His Lordship's words were, "If a woman, during the course of a treaty of marriage with her, makes, without notice to the intended husband, a conveyance of any part of her property, I should set it aside, though good primâ facie, because affected with that fraud." And it seems to be a sound principle, that the concealment of such a fact under such circumstances, when such a relation is about to take place between the parties, should be treated as a fraud. Mr. Justice Buller, in his judgment in the same case, expressly says, that the bare concealment of a conveyance by a woman to her separate use is not g 2 Chan. Rep. 81. h2 Vern. 17. i 2 Cox, 28: |