Opinion.

does not show that it was given as collateral to it, it would seem clear that if the party relying upon the merger or extinguishment of the simple contract, as a defense to an action upon it, is compelled to resort to evidence other than that furnished by the higher security in order to show the purpose for which it was executed and accepted, then the party claiming that it was given as collateral security, and not in satisfaction of the simple contract, should have the right to introduce parol evidence also to sustain his contention. Authorities have been cited and found showing that where the higher security shows upon its face that it was executed and accepted as collateral security to the lower, then the doctrine of merger does not apply. These authorities show that where it does so appear upon the face of the higher security there is no merger, but they do not therefore prove that where it does not so appear there is a merger. If there be authorities which hold that parol evidence cannot be introduced to show that the higher security was executed and accepted as collateral or additional security, when it does not so appear upon its face, and does not show that it was executed for the same debt, the labors and researches of counsel and the court have failed to find them. On the other hand, there are authorities showing that in such a case parol evidence is admissible to show the purpose for which the higher security was executed and accepted. To this there can be no valid objection. It violates no rule of law. It enables the parties to have their controversy settled upon its merits, and not by technicalities which may shut out the truth and work injustice.

It is said in 2 Chitty on Contracts, pages 1160-1 (11 Am. Ed.) that the giving of a specialty for a simple contract debt or security will not "operate as a merger, even in favor of a surety, if it appear upon the face of the specialty, or from the nature of the transaction that it was intended only as an additional or collateral security."

Opinion.

In 5 Lawson's Rights & Rem., sec. 2580, it said that "If the face of the security or other evidence shows that the higher security was taken only as a further or collateral security, there is no merger or extinguishment."

In Van Vleit v. Jones, 1 Spencer, (N. J.) 340, (43 Am. Dec. 631), the court, in discussing the question, said: "What did the parties mean by the transaction? Did they intend that the old security should remain open, and the new one merely collateral to it? Did they intend to extinguish the former? This intention is, of course, to be collected from the face of the instrument itself where it so appears; and, if it does not so appear, then from the next best evidence; the only difference being, that in the former case the security itself proves the exception to the rule, and also the intention of the parties, whilst in the latter the party alleging the exception must prove it. And in this no evil can arise. There is no parol contradiction of the written instrument, but only an explanation as to the object for which it was given. A contrary doctrine would prohibit parol proof of the payment of a collateral security by the payment of the original claim, unless it appeared upon the face of the collateral that it was such."

In the case of Gardner v. Hust, 2 Richardson (S. C.), 601, 608, the higher security did not show upon its face that it was for the same debt as the lower security. It was urged in that case that the legal presumption that there was a merger could not be rebutted by parol evidence, but the court held that it could, and in reply to the argument that it could not, said: "That may be so where the fact that both securities were for the same debt appeared from the higher security, or by comparing the two together; but if the fact is proved by parol, there can be no objection that the terms upon which the higher security was received, are also proved by parol. Wallace v. Fairman, 4 Watts, 378, 380.

Opinion.

Tested by these rules, the pleas offered and allowed to be filed over the plaintiff's objection were insufficient. All that is stated in them may be true, and still they do not set up a good defence. They ought to have averred, not only that the writings obligatory mentioned therein were executed by the obligors for the same debts as the notes sued on, but that they were accepted by the plaintiffs in satisfaction and discharge of such notes. The Circuit Court erred in not sustaining the plaintiffs' objection to the pleas.

If the facts stated in the replications are true, there was no merger of the notes sued on, and the plaintiffs had the right to maintain their action upon them. The court therefore erred in sustaining the demurrer to the replications.

For these errors the judgment of the Circuit Court must be reversed, and a new trial awarded, to be had in accordance with the views expressed in this opinion.

REVERSED.

VOL. XCI-58

Syllabus.

Wytheville.

FILLER V. TYLER.

JUNE 13, 1895.

Absent, Keith, P.*

1. COURT OF APPEALS Jurisdiction-Assignment-Presumption of Good Faith. Where appellant is the owner of two judgments sought to be enforced which aggregate more than $500, but each of which is less than that sum, the Court of Appeals has jurisdiction of the appeal. If one of the judgments was acquired after suit brought, by assignment, which purports on its face to be for value, it must be presumed to have been made in good faith until the contrary is made to appear.

2. CHANCERY JURISDICTION-Injunction—Adequate Remedy at Law-Separate Estates. The quitable separate estate of a married woman is the creature of a court of equity, and, notwithstanding the provision of section 2999 of the Code, an injunction will always be granted when necessary to protect, aid, or enforce any equitable estate or interest which she may have. Courts of equity having once acquired jurisdiction never lose it because jurisdiction of the same matters is given to courts of law, unless the statute conferring such jurisdiction uses prohibitory or restrictive words.

3. CHANCERY PLEADING-Allegation and Proof-Settlement by Husband-Consideration.-Although a bill by a wife to sustain and enforce a settlement made upon her by her husband is based chiefly on the agreement between them, setting forth the consideration for the settlement, and there is no proof of the agreement, yet if the facts which show that she was the surety of her husband are fully stated in the bill, and it is distinctly alleged that she was such surety, and she asks for all the protection to which she is entitled as such surety, this is sufficient to warrant the court in granting to her such relief as she is entitled to by reason of her suretyship.

*Judge Keith decided the case in the Circuit Court.

Statement.

4. HUSBAND AND WIFE-Conveyance of Wife's Land-Presumption—Principal and Surety.-Where a wife unites with her husband in conveying her maiden lands absolutely, the presumption is that she gives to her husband all her interest therein. But if such conveyance is not absolute, but in trust to secure the individual debts of her husband, then the wife becomes the surety of her husband, and, in the absence of any agreement to the contrary, is entitled to all the rights of a surety. 5. MARRIED WOMEN-Equitable Separate Estates-Liability for Engagements made before Acquisition.—The ground of the liability of the equitable separate estate of a married woman for her engagements is her intention to charge it, and her engagements can be enforced only against the equitable separate estate which she held at the time of entering into the engagement, or so much thereof as she owns when the decree is rendered, and not against that acquired after the time of entering into the engagement. Crockett v. Doriot, 85 Va. 240, approved.

Argued at Richmond.

Decided at Wytheville.

Appeal from two decrees of the Circuit Court of Loudoun county, one pronounced May 2, 1891, and the other January 19, 1892, in a suit in chancery wherein the appellee, Virginia H. Tyler, who sues by II. A. Hall, her next friend, was the complainant, and the appellant, Armistead T. M. Filler and others, were the defendants.

Affirmed.

This was a suit in chancery, instituted in the Circuit Court of Loudoun county by Virginia II. Tyler, who sues by H. A. Hall, her next friend, against Robert B. Wildman and others, defendants. The bill charges that three judgments have been recovered against Douglas Tyler, the husband of the complainant-one by the surviving partners of the firm of Wildman & Sons, for $185.73, with interest and costs; one by the Patapsco Guano Company for $332.54, with interest and costs; and one by Gertrude Humphrey for $150, with interest and costs. The bill further charges that executions had been issued on the first two judgments above mentioned, on No