Opinion. would have compelled him to do; that in uniting in the deeds of trust, and thus charging her property with the payment of her husband's debts, she became his surety and is entitled to all the rights of a surety; that her husband is hopelessly insolvent; that the personal property settled upon her has been levied on to satisfy the judgments of the appellant; that she is threatened with a multiplicity of suits; and that, in order to prevent such sale and to avoid such threatened litigation, she has brought this suit, and desires to have all matters connected therewith litigated, and, upon these grounds, prays for an injunction to prevent a sale under the executions of the appellant; and, upon a hearing of the cause, asks that the property embraced in the deed of settlement be decreed to be hers, and for general relief. The demurrer to the bill, which appellant insists the Circuit Court erred in overruling, is based upon the ground that section 2999 of the Code of 1887 provided a complete and adequate remedy at law, and that a court of equity has no jurisdiction of the case. Even if all the relief to which Mrs. Tyler was entitled, upon the facts stated in her bill, could have been had in a court of law under the section of the Code referred to, a court of equity would still have had jurisdiction. The equitable separate estate of a married woman is the creature of a court of equity, and an injunction will always be granted, where necessary, to protect, aid, or enforce any equitable estate, or interest, which she may have. 3 Pomeroy's Eq. Jur. sec. 1345. Courts of equity, having such jurisdiction before the enactment of the statute now found in section 2999 of the Code of 1887 (see Revisors' Report of Code of 1849, page 765, note,) still retain it, although the statute may furnish a complete and adequate remedy at law. Courts of equity having once acquired jurisdiction never lose it because jurisdiction of the same matters are given to law courts, unless the statute VOL. XCI-59 Opinion. giving such jurisdiction uses prohibitory or restrictive words. 1 Barton's Ch. Pr. 60, 61. The Circuit Court did not err in overuling the dermurrer. Another error assigned is, that the Circuit Court erred in sustaining the validity of the deed of settlement. The record shows, as stated above, that Mrs. Tyler had united in three deeds of trust charging the land inherited from her parents with the payment of debts amounting to $18,000, of which sum more than $16,000 remained due and unpaid; it further shows that her husband was sixty years of age, and utterly insolvent; that the annual rental value of her lands is $1,500, and that the personal property embraced in the deed of settlement and levied on, was worth about one hundred dollars more than the appellant's debts. Mrs. Tyler does not attempt to prove the agreement between herself and her husband, set up in the bill, and her right to relief upon that ground is wholly unsupported, and was abandoned in argument by her counsel. She relies entirely for relief upon the ground that when she united with her husband in each of the three deeds of trust charging her maiden lands with her husband's individual debts, she became the surety of her husband, and that she is entitled to all the rights of a surety, and that since her lands are bound for and will have to be subjected to the payment of those debts, which are greater in amount than the value of her insolvent husband's rights in her lands, the conveyance made for her protection is valid and binding. The record shows sufficiently, we think, that the debts secured by the deeds of trust were the individual debts of the husband; at least, it appears that the notes evidencing such indebtedness were his individual notes, and, in the absence of proof that the money for which they were given went into the hands of the wife for her own use as her separate estate, the presumption is that the debts secured are the debts of the Opinion. husband. Huntington v. Huntington, 2 White & Tudor's Lead. Cases, part (2), page 1929; Clancy's Rights of Married Women, 589-90. It also shows that the amount of the husband's debts charged upon the wife's lands is greater than the value of the property conveyed by the husband for her protection. If, therefore, the wife can be considered as the husband's surety, and as entited to the rights of a surety against the husband and his creditors, the conveyance made for her benefit must be sustained. It is well settled in this State that 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, and it is insisted that the same presumption arises when she unites with her husband in charging her lands with the payment of his debts, and that she does not thereby become his surety unless there is an express agreement to that effect. Counsel do not refer to, nor has the court, in its researches, been able to find, any decision of this court, upon this question. It was decided in England at an early day, viz., in 1702, in the case of Huntington v. Huntington, 2 Lead. Cases in Eq. (part 2) 1922, that where a wife unites with her husband in putting a mortgage upon her estate of inheritance for the benefit of her husband, her estate was only a surety for his indebtedness. In the English notes to that case it is said it is a well-established general rule that whenever husband and wife mortgage her estate of inheritance for the benefit of her husband, the wife or heir will be entitled after the death of the husband to have it exonerated out of the estate of her husband, real and personal, her estate being only considered as a surety for his debt. Even, it is said, a creditor of a wife may, upon the refusal of her representatives, file a bill to obtain such exonera Opinion. tion, and a number of cases are cited to sustain the statement made in the note, including decisions made by Lord Hardwicke and Lord Eldon. Lord Chancellor Westbury, in the case of Gleaves v. Paine, 1 De Gex, Jones, and Smith, 87, 95, decided in the year 1863, said: "The estate of the husband being mortgaged in the manner here described for the husband's debt, the wife unquestionably assumes, in the eye of a court of equity, the character of a surety for the husband. Properly speaking, she is not a surety, but she is so called by analogy. She has title to call upon her husband to exonerate her estate from the debt." The Court of Appeals of New York, in such cases, treats the wife or her estate as the surety of her husband, and holds, as do the English courts, that she is entitled to all the rights of a surety. In the case of the Bank of Albion v. Burns and others, 46 N. Y. 170, 174, it was said: "The property of the wife having been mortgaged to secure the debt of her husband, she occupied the position of a surety, with all the rights, legal and equitable, incident to that relation; and the defendants, having succeeded by inheritance to the estate and interest of their mother, occupy the same position, and are entitled to every defense which could have availed the original mortgagor had she lived. Gahn v. Niemcericz, 11 Wend. 312; Loomer v. Wheelwright, 3 Sand. Ch. Rep. 135; Smith v. Townsend, 25 N. Y. 479." In Loomer v. Wheelwright, 3 Sand. Ch., at page 135, it is said: "I see no reason why a different rule should be applied to the wife's case from that which is applied in other instances of principal and surety. If I mortgage my farm to secure my friend's debt, and the creditors know it is my farm, I become surety for my friend, and the creditor is bound to respect that relationship. The law indulges him in no pre Opinion. sumption that I intend to make a gift to my friend, or that the debt was secured in some way for the benefit of my property. Why should such a conjecture or presumption be applied to the wife in order to disparage her claim as surety? If there should be any different rule, it ought rather to provide an inference in her favor than to strain a point against her." Clancy, in his work on the Rights of Married Women, says: "If wife join her husband in a mortgage of her real estate (also of her separate estate) for his debt, she will be considered in equity as his creditor." Clancy's Rights of Married Women, 589. “Where a wife," he says, "joins her husband in a mortgage of her'estate for his debt, the inference drawn by a court of equity from these circumstances is that she intends to be repaid; and even though the equity of redemption should be reserved to the husband and his heirs, still there is a resulting trust to the wife after the objects of the mortgage have been satisfied." Clancy on Rights of Married Women, 590; Bish. on Law of Married Women, sec. 604. The strongest reason urged against holding that the wife under such circumstances should be treated as a surety is that it will encourage the perpetration of frauds on the part of husband and wife. The opportunity for fraud in cases where the wife unites with her husband in charging her real estate with his individual debts cannot be very great, since her title to her lands will generally appear of record, as will also the mortgage or deed of trust charging them, and the creditors of the husband will have all the necessary means of ascertaining the ownership of the lands and the character of the charges thereon. But if it were otherwise, the wife cannot be deprived of her rights simply because the relation between her and her husband may enable him the more easily to defraud his creditors. The English courts, as above shown, treated her |