author: Wood, C. J.

text:
    *James Stilley et uxor v. Peter B. Folger and others.
    The election of a widow to take under the will of her husband, to bar her of dower, must be made in the court of common pleas, within six months after probate of the will. '
    A reasonable antenuptial agreement will bar the wife of dower, though its terms be not such as to constitute a good legal jointure.
    This case is reserved in the county of Hamilton.
    The bill in this case was filed by the complainant, Stilley, in right of his wife. She was the widow of Richard Folger, who died on July 6, 1841, seized of certain lands described in the bill. Folger left a will, which is one of the exhibits in the case. The object of this suit by the complainants is the assignment of dower in the right of Mrs. Stilley in the decedent’s lands.
    This claim of dower was admitted to be valid, unless barred by the agreement set up in the answer of the respondents, who are the executors and heirs at law of the deceased.
    This agreement recites, in substance, that the said Richard Folger and the said Eleanor Ross contemplated marriage, but desired their property to be kept separately for their own use, and for the use of their children respectively, and that they, therefore, covenanted with each other that the said Eleanor should retain, sell, or convey to whomsoever she chose, at any time during the contemplated marriage, all or any part of her personal property, and appropriate the proceeds thereof at her own discretion ; and if she deceased before the said Richard, he covenanted, on his part, to deliver up to her children all her personal property, which he might, at the time of such decease, have in full possession, or to deliver up the name to whomsoever she should, by will or otherwise, direct. In case she survived him, the covenant extends to his heirs and representatives to relinquish all right, and surrender the said ^property, which is enumerated in a schedule annexed to said agreement, and to which reference is made.
    The said Richard, who covenants that he will not claim any estate of hers as tenant by the courtesy, but that she and her heirs may use, hold, occupy, and enjoy, during the contemplated marriage, any lands, tenements, hereditaments, or other property then owned by her, or which she might acquire in her own right; and if she survived him, in that event she should bo paid by his heirs or executors, within sixty days after his death, the sum of $600, etc.; and tho said Eleanor, on her part, covenants with tho said Richard that, on the aforesaid provisions being kept and performed by him, in case she survive him she will release and relinquish all right, title, and claim to his estate, real or personal, to his heirs, executors, administrators, or assigns. This agreement bears date on November 17, 1835, and before tho marriage.
    The answers also set up the will of Folger, duly executed, proved, and recorded, by which he devises to the said Eleanor all the personal property, things, and privileges enumerated in the schedule, and directs his executors to pay her $600 out of his personal property, according to the intent and meaning of the covenants existing between them.
    Messrs. Carey & Telford, for complainants:
    This petition was filed on August 26, a. d. 1841. The petitioner is the widow of Richard Folger, deceased, who died about July 6, 1841, seized of the lands in the petition described, leaving a will, which is ono of the exhibits in this cause.
    The widow elected to take at law, and not under the will; tho contrary is not seriously asserted on the part of the defendants. The filing of the petition in this ease, within twenty days after the death of her husband, is conclusive of this fact.
    Indeed, there is no serious contest about the widow’s right to have dower assigned in the premises, in the petition described, ^unless, as the defendants contend, her title is barred by a certain antenuptial agreement, which is one of the exhibits in this cause.
    By this contract, made before the marriage, it is stipulated, in substance, that Richard Folger shall not claim any estate of courtesy in the real estate of tho complainant, and that this complainant shall not claim any estate of dower in the lands of her huj' band; and that in the event of Mrs. Folger surviving her husband, she shall receive $600 in lieu of dower, return certain personal property belonging to her before marriage, etc. We refer the court to the agreement itself, exhibit A B, filed with defendant’s answer.
    The complainant admits that the provisions of the will conform substantially to the terms of this written contract, and that there has been a tender of the provisions made by the contract and will to her, which she refused to accept.
    But she insists, in the first place, that this agreement was fraudulently procured; and, secondly, that it is not, even if it were unimpoachablo on the ground of fraud, sufficient to bar her title to dower.
    The petitioner then insists that the agreement was procured by misrepresentation ; and that, under all the circumstances, the court ought not to enforce it in derogation of a plain statutory right.
    If there was any misrepresentation made to. this woman, if the circumstances attending the execution of this agreement by her induce the court to suspect that there was any want of candor or good faith on the part of Biehard Folger, or that advantage was taken of an illiterate and confiding woman on the eve of her marriage, the court will treat the antenuptial contract as a mere nullity.
    How is the execution of this instrument proved? It purports to be attested by two witnesses, Obed B. Folger and Elizabeth Folger, both dead — the former a son, the latter a sister of Bichard Folger.
    The handwriting of these witnesses is proved; but no witness testifies that ho saw Mrs. Folger execute this agreement, *or that she was made acquainted with its contents. No trustee was interposed to protect Mrs. Folger; no friend was consulted in her behalf; there was no acknowledgment of the instrument at any time before an officer of the law.
    On the other hand, the proof is positive that Mrs. Folger can neither write nor read writing; and the first declarations made by her in regard to this instrument are, that she was almost passive in the execution of it — that Obed Folger guided her hand when she signed it, and that she did not know its contents, much less did she understand its effect.

      If a court of equity looks with, jealousy into the contracts made with sailors, in regard to .wages and prize money, on account of their generous and thriftless character, 1 Story’s Eq. 325; and into what are called catching bargains, with heirs, remainder-men, .and reversioners, 1 Story’s Eq. 327, will it not watch narrowly a -contract made with a woman, in contemplation of marriage, by her intended husband? And when that contract is intended to .affect the rights which spring from the relation of husband and wife, does not public policy require that it shall be conducted with the utmost candor and good faith?
    What person so exposed to imposition as a woman, contracting personally with her intended husband, just on the eve .of marriage, ¡at a time when all prudential considerations are likely to be merged in a confiding attachment, or suppressed from an honorable instinct and sentiment of delicacy?
    It would be a reproach to the law, if the very virtues and graces of woman wero thus allowed to become the successful means of overreaching and defrauding them in bargains; and we feel confident that a court of equity, when called upon to adjudicate the rights of parties under such an agreement as that which is set up in this case, will require the agreement to be free from every taint of fraud, and also to be to the advantage of the woman.
    But, instead of a contract above suspicion, we have one here to which every suspicion attaches.
    *The woman with whom the contract was made can neither
    ■read nor write. There is no evidence that it was explained to ■her; and, instead of being surrounded by her own friends, or by the officers of the law, she executes it under the eyes of a son and ■eister of her future husband, and in his house. What an opportunity for fraud 1
    It appears to us that a man who was making a fair and honest antenuptial agreement with his intended wife, would not choose to carry it on and consummate it under such circumstances.
    It appears from the testimony, that Mrs. Folger, for more than a year before the marriage, had been a faithful servant of this family; had attended Obed Folger during a protracted and ■loathsome sickness; and for these services, she had a claim against .Mr. Folger. It appears most probable from the evidence, that she thought- that she was protecting and securing that claim by the instrument, which is now set up to defeat another claim.
    Another circumstance which tends to impeach the fairness and good faith -of this pretended agreement is, that it was to the manifest disadvantage of Mrs.'Folger. The condition of the parties in respect to property was not altered after the execution of that contract, up to the time of Richard Folger’s death.
    And it will be admitted that the dower estate of Mrs. Folger, in the premises of which her husband died seized, is worth more than double the six hundred dollars, for which she bartered it.
    It was not an uncertain future interest, released for a certain .sum secured to the benefit of her own children. The six hundred dollars were only to be paid in the happening of the same events, that entitled her to dower. And thus, by this agreement, she is made to accept a covenant to pay six hundred dollars, which is not -charged specifically upon any property, and which might have been defeated by the subsequent general insolvency of the estate, as an equivalent for- an estate worth more than double that sum, and which could not *have been defeated by any event, ex■cept her own voluntary act, which would not also have discharged the covenant itself.
    What inducement she could have had to make such a sacrifice, those heirs will find it difficult to explain; but it is one which they must explain, before they can remove from this transaction the shade which rests upon it.
    But admitting the execution of this agreement, and that it was entered into in good faith by the parties, let us inquire what is its legal effect upon the petitioner’s title to dower. Does it constitute a legal bar ? Would it have constitute a legal bar at the common law?

    In Cruise’s Digest, title 6., oh. 4., the various modes of barring dower are enumerated.
    1. Attainder of the husband.
    2. Attainder of the wife.
    3. Elopement of the wife with an adulterer.
    4. Detinue of charters by the wife.
    5. Her joining in a fine or recovery, etc.
    6. Jointure.
    Does it constitute a legal bar under our statute? According to the statutes of Ohio, the modes of barring dower may be enumerated thus:
    1. Jointure. Swan’s Stat. 296.
    2. Adultery of the wife. Swan’s Stat. 297.
    3. A testamentary provision, expressly in lieu of dower, accepted by the widow. Swan’s Stat. 998.
    4. Her joining in a conveyance with her husband according to certain forms. Swan’s Stat. 255.
    5. Divorce for fault of the wife. Swan’s Stat. 293.
    6. Proceedings under commission of lunacy. Swan’s Stat. 575.
    The defendants, wo think, will not pretend that this antenuptial contract is embraced within any of these various methods of barring dower, unless, indeed, by jointure.
    A jointure (1 Inst. 36) is defined to be “ a competent livelihood of freehold for the wife, of lands and tenements, to take *effect in profit or possession presently after the death of the husband.” The requisites are, that it must be an absolute estate. It must vest presently upon the death of the husband. It must be an estate for the life of the wife at least.
    It needs no comment to show that this antenuptial agreement has not the first requisite of a jointure, according to the statute of uses, from which jointures arose, and from which the foregoing definition is derived.
    Rut what is a jointure under our statute?
    Swan’s- Statutes, page 296, section 2, provides: “That if any estate shall be convoyed to a woman, as jointure, in lieu of dower, to take effect immediately after the death of her husband, and to continue during her life, such conveyance shall bar her right of dower to the lands and tenements which were her husband’s.”
    It will be seen that the legal requisites of a jointure in Ohio are nearly identical with those expressed by the statute of uses; so that this antenuptial agreement fares no better, as a legal bar to dower here, than it would in Westminster Hall.
    Had antenuptial agreements any efficiency prior to, and independent of the statute of uses, as a legal bar to dower? According to the course of common law, 1 Cruise, 197, no right could bo barred until it accrued, and no right or title to an estate of freehold could be barred by a collateral satisfaction. In consequence of these two maxims of the common law, it was impossible to bar a woman of dower, by. any assurance of lands either before or after marriage. A jointure was no bar to dower prior to the statute of uses. It was only made so by that statute. Whatever efficacy there pertains to antenuptial contracts at law, is derived from the express will of the legislature. And as the statute making jointure of a bar of dower is in derogation of the rule of the common law, it must be construed strictly. 1 Cruise, 200.
    But courts of equity in England have erected upon the basis of this statute, the doctrine of equitable jointures.
    By construction, then, equitable jointures on the ground of ^analogy to legal jointures under the statute, have been held to bar dower. According to this doctrine, a widow may be barred of dower by a provision which has not all the requisites of a legal jointure. A trust estate, for instance,.though not good as a legal jointure may be good as an equitable jointure.
    We say that this doctrine of equitable jointures has been based upon the statute of uses, because, prior to the date of that statute, 27 Henry VIII, no case can be found where a provision of the husband, made before marriage, was held to bar dower, and because the cases since that time, which establish and encourage the doctrine of equitable jointures, profess to base it upon that Btatute.
    An examination of the cases would show that courts of equity, starting from the analogy to a legal jointure under the statute, have pushed the doctrine to extremes where the analogy is too faint to be discernible. If we may believe the elementary writers, a provision which has not a single requisite of a legal jointure, may, in equity, constitute a good jointure. In equity any provision which a woman accepts before marriage in satisfaction of dower, as, for instance, a trust estate, or a mere personal covenant of the husband, may constitute a good jointure. Thus, a sum of money secured by bond. 1 Hill. Law of Real Prop. 108. But it will be found that none of the adjudged cases go to that extent, and what we desire the court particularly to observe is the fact that, in their greatest latitude and liberality, the courts of equity still recur to the statute as the basis of their jurisdiction. In other words, it has not been claimed that a court of equity could make that a bar to dower, which, at law, was no bar, except by virtue of a constructive jurisdiction derived from the statute. We know, as a part of the history of equity jurisdiction, that prior to the-date of the statute of uses, chancellors would hardly dare to enjoin a judgment at law, much.less would they, in the face of the common law, undertake to set up and enforce *as a bar to dower, a settlement or contract, which, at law, had no such effect.
    And now, before proceeding to examine the doctrine of equitable jointures, and to ascertain its true and just limits as administered in England, let us inquire whether it can, to any extent, be recognized under the laws of Ohio.
    This inquiry involves a critical examination of our statute.
    We remark here, in the first place, that in Ohio there is but one mode of suing for dower, and that is by petition in chancery, as provided in section 9 of the dow^r act. Swan’s Stat. 296.
    It would seem that, up to the year 1824, when this statute was passed, the writ of dower at law was the mode of proceeding, 10 Ohio, 503, but that now that ancient remedy is entirely superseded.
    We conclude from this that all the provisions of the act of 1824 were in contemplation of this remedy, by petition in chancery. If so, it may throw some light on the main question, to collate sections 2, 4, 5, and 9 of this act. Tho inquiry now is, whether the doctrine of equitable jointures is compatible with the plain provisions of our statute.
    Section 4 provides, “ That when any conveyance intended to be in lieu of the dower, shall, through any defect, fail to be a legal bar thereto, and a widow availing herself of such defect, shall demand her dower, the estate and interest conveyed to such widow, with intention to bar her dower, shall thereupon cease and determine.”
    Hero are two things contemplated :
    1. A certain provision, intended to be in lieu of dower, fails to be a legal bar.
    2. The widow demands her dower.
    The demand, of course, is made according to the statute by petition in chancery. Now if the doctrine of equitable jointures is to prevail in Ohio, why is the provision in this case defeated merely because it fails to be a legal bar ? The forum *is a court of equity. A good, equitable bar, if tho statute contemplated the possibility of such a thing, might be pleaded; and yet the statute is peremptory, and declares that if the conveyance, intended to be in lieu of dower, shall, through any defect, fail to be a legal bar, then the estate so conveyed shall absolutely cease and determine.

      Now, if the remedy were a writ of dower at law, wo could see-how the provisions of this statute might still be consistent with these constructive jointures. The provision intended to be in lieu of dower, failing to prove a legal bar, would be no answer to a demand at law, by such a writ; just as in England, under the statute of uses, oven though equitable jointures were recognized, they did not bar dower demanded at law by the ancient writ of dower. So also in Massachusetts. 7 Mass. 153; 15 Mass. 107.
    But again, section 5 of the statute of dower, Swan, 297, provides, “ That if any widow be lawfully evicted from her jointure, or any part thereof, without fraud in her, she shall be endowed of as much of the residue of her husband’s lands, etc., whereof she was before dowable, as the same lands, tenements, or hereditaments from which sho was evicted, shall amount to.”
    Here the law makes special provision for a case where the widow is lawfully evicted from her jointure. She shall, in such event, be let into her dower.
    If, then, what was a legal bar should fail, the widow may demand dower.
    And from the reading of section 4 of the statute, the inference is irresistible, that, if the conveyance qua jointure is not a legal bar, the widow may demand dower. These two sections comprise every possible antenuptial provision, and it is apparent that a plain interpretation of them is totally irreconcilable with this English chancery doctrine of equitable jointures.
    The same conclusion follows another view of section 5. The section protects the widow in case of eviction from *her jointure. If, now, it was contemplated that an equitable jointure might be made to bar dower in any case, why does not the statute provide some remedy in case that equitable provision fails ? Eor, observe, that if a provision made before marriage is good to bar dower, it must be good absolutely, and at and from the date of its execution. There can not be a contingency about, its validity, as that it may be good, or not good, according to the event.
    And now, suppose it settled that such a provision may be valid, what becomes of the widow if that provision should by some means fail? The statute provides for her where there is a failure of her jointure, but furnishes no redress for the failure of any other provision, except as we derive it constructively from the language of section 4, which seems to imply that in all such cases she may claim dower, and that the demand of dower is her only remedy.
    We would observe here, before leaving this statute of dower, that section 4 seems to contemplate a right of election in the widow, whenever the provision in lieu of dower is not a legal bar. And wo suppose that she will be bound by her election. “If the widow shall demand dower,” is the language of the law, implying, that if she does not demand dower, or does any act bj which an election to take something in lieu of dower can be reasonably inferred, she is concluded thereby. This appears to us to bo the reasonable rule. It gives her only the just privilege of making a choice, when the objects between which she is called to choose, have an actual existence, and present value.
    The case of Shotwell et al. v. Sedam’s Heirs, 3 Ohio, 5, was decided upon this principle. The widow there made her election, after the right to dower had become absolute, to accept certain things in lieu of dower, and the court held that she was concluded by that election.
    And in this case if Mrs. Polger had elected, after the death of her husband, to accept the provision of six hundred dollars in lieu of dower, she would have been bound thereby, even in *the absence of a will; but as that provision fails to bea legal bar,” and she has availed herself of that defect, and demanded her dower, all her interest in that provision ceases and determines, and her dower must be set out.
    But, admitting that the doctrine of equitable jointures is one which the courts of Ohio are willing to engraft upon our statute, we contend that the provision made in this agreement with Mrs. Folger does not possess the requisites of a good, equitable jointure.
    The court will no doubt be referred to loose passages in the opinions of chancellors, and in the elementary writers, which assort that any antenuptial provision accepted by an adult person before the marriage, is a good equitable jointure under the statute. But we believe that no adjudged case will be cited that carries the doctrine to that pernicious extreme.
    In Williams v. Chilty, 5 Ves. 545, leasehold estates, assigned in trust for the wife in lieu of dower, was held to be a good equitable jointure. Here the provision savored of the realty.
    In Jordan v. Savage, 3 Eq. Cas. Ab. 102, the jointure was in copyholds. This was sufficient.

      In Gladstone v. Ripley, cited in Drury v. Drury, 2 Eden, 59, the jointure was in copyhold lands.
    Vizard v. Langden, cited in Drury v. Drury, 2 Eden, 69, was the case of an annuity secured by a bond. A bond, at the common law, binds all the lands of the ancestor in the hands of the heir or devisee, and this was held to be a good equitable jointure. '
    But in Smith v. Smith, 5 Ves. 189, an antenuptial agreement that half of the husband’s personal property should go to the wife, was held no bar to dower — the provision being uncertain
    In 4 Kent, 55, it is said : “ The conveyance, before marriage, of an estate to the wife, to continue during widowhood, by way of jointure, or if made to depend on any other condition, *will not bar her dower, even if she be an adult, unless when a widow, she enters and accepts the qualified freehold. The legal or equitable provision must be a fair equivalent to the dowor estate, to make it absolutely binding in the first instance.
    From these citations, we think it will be seen that it is not every antenuptial provision which constitutes a good equitable jointure. There is a limit to these equitable analogies. The provision must, in some way, be charged upon the realty; and there must be something like the same certainty in it that there is in the estate which it is intended to bar.
    Now, are these requisites answered in the antenuptial contract now before us ? The provision is a pecuniary one merely. . It is not in any way charged upon the realty. There was no security for it.
    Suppose that Mrs. Folger, trusting to this covenant to pay her $600, had joined her husband in his lifetime in some conveyance which forever barred her of dower. Suppose, upon the final settlement of Richard Folger’s estate, it had proved to be insolvent. What, then, would have become of this antenuptial provision? It would have left her penniless at the death of her husband, and without redress. It is no answer to say that the event has proved different from, all this. The provision is good at all events, or not good at all. Its validity, as before remarked, can not be contingent, depending upon the accident of solvency or insolvency. Teller v. McCarter, 2 Paige, 519.
    But it will be insisted, finally, that this agreement is sufficient in equity to bar Mrs.' Folger of her dower, independent of the statute, and simply as an agreement between parties competent to contract.
    This position may, at first glance, appear formidable, but we conceive it to be without any solid foundation. We admit that this antenuptial contract was made between parties competent to contract. At the date of it, Mrs. Folger, then Eleanor Ross, was a feme sole, and under no disability.
    *But it is not every agreement made between parties competent to contract that is valid, or that a court of equity will specifically enforce. We must look to the subject matter of the con'tract ; to what is called public policy; and also to the relation in which the contracting parties stand to each other.
    There are some subjects about which a valid contract can be made only in a specific mode ; and there are some subjects about which parties can not make a valid contract at all; and there are parties, otherwise competent to contract, whoso contracts a court of equity will supervise, on account of the relation which tho parties occupy toward each other, as well as some which are absolutely ineffectual and void in all cases upon account of that relation.
    We have already seen that, at law, the contract is void. Dower is a freehold estate which can not be barred by a collateral satisfaction; and at law, no right could be barred until it accrued.
    Cruise, 197, 198. Besides, at law, a contract of this nature is avoided by the subsequent marriage. 1 Story’s Eq. 151; 2 Story’s Eq. 597. If this antenuptial contract is void at law, how can these defendants expect to get a decree for the specific performance of it (for that is what is asked in effect), in a court of equity? Such a decree can not be rendered in a contract void at law. 1 Fonbl. Eq. 29, a. Besides, contracts will not be specifically performed unless they are reasonable. 1 Johns. Ch. 225 ; 1 Cow. 711.
    But when was it that courts of equity first undertook to decide that agreements made to bar or present dower, and wholly void at law, might be set up as sufficient in a court of conscience ?
    When did the common law judges first submit to have dower,, one of the three things which the common law favoreth, overreached by decrees in chancery ? Was it prior to tho 27th of Henry YIII? Let a case be cited anterior to tho statute of uses, wherein dower was barred by an antenuptial agreement, void at law. Until there is such a citation, we shall adhere to tho opinion already expressed, that the jurisdiction of courts *of equity in such cases, and the efficacy of these antenuptial provisions, are derived exclusively from the statute of uses, and that an agreement must be such as to constitute an equitable jointure under that statute, before a ohancellor will give it effect as a bar to dower. That statute is the basis of the interference of- courts of equity in this class of cases. Agreements are not enforced qua agreements, but qua jointures.
    If it were otherwise, would not every antenuptial agreement intended to bar dower be valid in equity? If they have their effect as agreements, that must be the inevitable result. But see 2 Story’s Eq. 496, 497; Foster v. Foster, 3 Brown’s Ch. 489, 493; 1 Ves. 451; Smith v. Smith, 5 Ves. 181.
    But if this instrument is to operate as an agreement, and because it is a contract made between parties competent to contract, it follows that if Mi’s. Folger, in contemplation of her marriage, had made a contract in regard to her dower, with a stranger, or with any number of strangers, such an agreement would also have been good. Richard Folger, then, on his marriage, would have found two or three of his neighbors bolding an interest in his lands. Such a contract would certainly find no favor in a court of equity ; and if Mrs. Folger could not have made a valid agreement before marriage with a stranger, she could not make one with her intended husband in regard to dower, except as she was enabled to do so by the statute.
    Messrs. Stores, & Gwtnne, for the respondents :
    The bill of the complainant claims dower in the real estate of her deceased husband, Richard Folger.
    It will be for the court to say whether she is not concluded by her election to take under his will, in accordance with sections 45 and 46 of the will act, Swan’s Stat. 998. Should the court decide upon the depositions that her election is sufficiently ^proven, the decree will be for the defendants, without further investigation. If the court is not satisfied that there is proof of such election, the question remains for decision whether she is barred of her dower by the antenuptial contract entered into between her husband and herself, then Eleanor Ross.
    It is said, on the part of the complainant, that antenuptial agreements had no efficacy at the common law to bar dower. The reasons given by the complainant’s solicitors, and the only ones to be found in the books, are, that according to the course of the cornmon law, no right could be barred till it accrued, and no right or title to an estate of freehold could be barred by a collateral satisfaction. Such being the rules in the courts of law, antenuptial agreements could not there be pleaded as bars to dower, except so far as the legislature enacted that they might be pleadable. At law, therefore, no such agreement could be set up, unless it possessed the requisites of a jointure under statute 27 Henry VIII, e. 10, called the statute of uses.
    We contend that courts of equity were not shackled by these rules, and that their conduct has not been guided by them. We deny that courts of equity have exercised a jurisdiction to enforce these antenuptial agreements, derived exclusively from, and based upon the statute of uses; that those courts have enforced them qua jointures, and not qua agreements; that they have acted only in analogy to that statute; and that in order to constitute a bar in chancery, “ the provision must, in some way, be charged upon the realty, and there must be something like the same certainty in it that there.is in the estate which it is intended to bar.”
    The fact that no ease can be cited anterior to the statute 27 Henry VIII, c. 10, wherein dower was barred by an antenuptial agreement void at law, does not strike us as at all singular, or at all conflicting with the positions we take. For, 1. The earliest reports of cases in equity commence with the reign of Charles I. 1 Kent’s Com. 492. 2. It was long after the statute 27 Henry VIII, that bills for dower were entertained. Even as late as the case of 626] Mundy Mundy, 2 Ves. Sen. 129, in *1793, the bill of the widow for dower was demurred to, on the ground that her remedy was at law. 3. Before that statute was passed, but few, if any settlements were made, except of lands within the statute. Lord Hardwicke says in 2 Eden, 65, “Personal estate was then of little or trifling value; copyholds had hardly acquired their full growth; trusts of estates in lands did not arise till many years after.” The solicitors for the complainants themselves state that “prior to the ■statute of uses, chancellors would hardly dare to enjoin a judgment at law.” An argument of a similar kind to that of the complainant’s solicitors upon this point, might be made at any time upon an application for an injunction, by referring to a period eighty years later than the statute of uses, when the notable dispute between courts of law and equity arose, to the times of Lord Ellesmere, Lord Bacon, and Sir Edward Coke.

      "We pass from this point to the decisions of courts of equity, wherein antenuptial agreements have been decreed to be bars of dower. They amply sustain us in our views of the rules in chancery upon this subject.
    There are many provisions not mentioned in statute 27 Henry YIII, c. 10, which are bars in equity. Such as a copyhold estate, see Gladstone v. Ripley, decided in the 27th year of Charles II, and quoted by Lord Northington, in Drury v. Drury, 2 Eden’s Ch. 59. In Davila v. Davila, 2 Vern. 724, the wife, it seems to have been admitted, was barred of dower, and she was decided to be barred of what she might claim for dower, or thirds, or by the custom of London or otherwise; and the covenant of the husband there, was in consideration of the intended marriage, and of' £4,000 that there should be paid her if she survived him — £1,500 out of his real or personal estate. In Vizard v. Longdon, cited in Tinney v. Tinney, 3 Atk. 8, and Drury v. Drury, 2 Eden, 66, by Lord Hardwicke, who was counsel in the case, the bar of dower was a bond by the husband, previous to marriage, agreeing to settle on the wife £14 per annum, for her livelihood and maintenance. In Charles v. Andrews, 9 Mod. 151, the court *say that, in equity, a woman before marriage being of age, and consenting to accept a term of years or other chattel interest in bar of her dower, would not bo permitted to have both ; other cases show that she will not simply be compelled to elect, but will be compelled to accept the antenuptial provision, and relinquish dower. In Jordan v. Savage, Bac. Abr., Jointure, B. 5, 717, 2 Eq. Ab. 102, cited in 2 Eden’s Ch. 66, and 2 Paige, 557, the wife was held barred of her customary free bench, by a covenant of the husband with trustees to settle his land to certain uses, provided that the lands so settled on the wife should be in lieu of her customary estate.
    In Glover v. Bates, 1 Atk. 439, the wife’s distributory share of her husband’s personal estate, it is said by Lord Hardwicke, though not properly the subject matter of a release, may certainly be extinguished by agreement. In Price v. Seys, Barn. Ch. Cas. 117, cited in Drury v. Drury, 8 Wend. 333, 334, the widow was held to be barred of her dower by an antenuptial agreement on the part of her husband to settle a jointure on her. In Tinney v. Tinney, 3 Atk. 8, the heir at law claimed the widow was barred of dower by a bond of the husband agreeing to secure her £400 in case she survived him. He did not succeed, because the bond did not express that the £400 was in lieu of dower, and the chancellor refused to hear parol evidence to that effect, on account of the statute of frauds and perjuries. Had the bond so expressed, it would seem by the chancellor’s quoting Vizard v. Longden, that he would have considered it a bar, and the case is cited as so deciding in Amber et ux. v. Norton, 4 Hen. & Munf. 23. In Walker v. Walker, 1 Ves. Sen. 54, it is said by the court that a wife may be barred of dower in several cases, where the common law would not bar her as by a provision out of the personal estate, if so framed as to import a jointure, and in that case the widow was held to be barred of her free bench in copyhold lands, by a settlement upon her of real estate, though, as was said by the court, the heir of the husband had no relief at law, and the case was not *within Statute 27 Henry YIII, c. 10, which does not extend to copyholds, all its clauses expressly relating to dower at common law. The court went further and said: 11 Suppose it were only articled before marriage that it should be for her jointure, on a bill for performance, the court would bar her of free bench as well as dower.” In Eastcourt v. Eastcourt, 1 Cox’s Ch. 20, the wife was held barred of dower by a bond of the husband to the wife’s mother, his intended wife being twenty-five years of age, conditioned to settle £500 per annum on the wife for life, to be in full satisfaction of her dower. He made a settlement after marriage, but as to that, the widow had an election; the compulsory bar was the bond.
    In Drury v. Drury, or Earl of Buckinghamshire v. Drury, reported in 4 Bro. C. C. 506, n.; 2 Eden’s Ch. 39, 75; 3 Toml. P. C. 497; 5 Bro. P. C. 570; 8 Wend. 297, 338, the question was finally set at rest in England whether an infant could be barred of dower by the antenuptial provision. She was held barred by an indenture, executed prior to the marriage, by her intended husband and herself.in the presence of her guardian, whereby a portion of £2,000, to which she was entitled, went to the husband for his own use and benefit; and the husband covenanted for himself, his heirs, executors, and administrators, that his heirs, executors, and administrators, in case she should survive him, should pay her during her life the clear yearly sum of £600 half-yearly.
    In Tew v. Earl of Winterton, 3 Bro. C. C. 493, it appears that by a decree of February 3, 1790, the court had considered the wife barred of dower by a bond entered into by the husband, before marriage, to convey sufficient estates in trust to pay her, in case she survived him, an annuity of £600 in lieu of dower. In Caruthers v. Caruthers, 4 Bro. C. C. 509, it is said an adult may take a provision out of the personal estate, or a chance in satisfaction of her dower, and the same doctrine is repeated in Simpson v. Gutteridge, 1 Madd. Ch. 329 (613), in which last case the widow was held to be barred by her agreement, before marriage, being then an adult, to accept *a rent-charge in lieu of dower. In Williams v. Chittey, 3 Ves. 551, the bar of dower was a settlement of personal estate and three per cent, bank annuities. In Garthshore v. Chalie, 10 Ves. 1, the bar of dower was a covenant of the husband, that his executors should, within six months after his death, convey to his wife surviving, a portion of his real and personal estate. In Corbet v. Corbet, 1 Sim. & Stu. 612, the widow was held barred by an indenture of her husband beforó mai’riage, granting to trustees a yearly rent-charge of £100 in bar of dower. In Power v. Shiel, 1 Molloy, 296, there had been a contract between the widow and her husband before marriage, by which he agreed to give her £150 per year, in case she survived him. Taking the contract, which was lost, to have contained express words that the annuity was to be in express satisfaction of dower, the Question was not whether a court of equity would give effect to such a contract; because of that, the chancellor said, “ there is no doubt,” but whether “ it will go so far as to become active to restrain the widow from any remedy she may have at law, when there are no assets to satisfy the contract.” The court restrained her from using her legal right to dower beyond the sum of £150 a year, the annuity contracted to be given to her.
    Coming to the American cases, in Selleck v. Selleck et al., 8 Conn. 85 n., the husband had entered into a writing, that, should his wife survive him, his executors should pay her, within four weeks after his decease, $100, in full of all'claims. In Andrews v. Andrews, 8 Conn. 80, there was no provision extending beyond the life of the husband ; yet, the widow was decreed to be barred. The court say, in this case: “ There is perhaps no principle better settled than that any provision, which an adult, before marriage, agrees to accept in lieu of dower, will amount to a good equitable jointure.” In Shaw and wife v. Boyd, 5 Serg. & Rawle, 310, and Jones v. Powell, 6 Johns. Ch. 194, we find a recognition of the doctrine of Mr. Hargraves, in his notes on Co. Lit. n. 1, 36 b.
      (224), that acceptance of a term of years, or a sum of money, *or a trust estate, or of any other kind of collateral satisfaction, in lieu of dower, is a good bar in equity; and, in Kennedy v. Mills, 13 Wend. 553, it is said that the wife may, by her assent before marriage, be barred by a pecuniary provision. In McCartee v. Teller, 2 Paige, 518; S. C., 8 Wend. 278, the intended wife was an infant at the time the antenuptial provision was made. Both the vice-chancellor, the chancellor, and Justice Nelson, admitted that there was a distinction between infants and adults — that in the case of an infant, the provision must be adequate, and not precarious; but that it need not be so in the case of an adult. The chancellor said, “An adult female might in equity bind herself, by an antenuptial agreement, to receive a simple pecuniary provision, although uncertain as to the time of its commencement, or as to the extent of its duration.” The decision of the court of errors was in favor of the widow; but there were so many considerations weighing in her behalf — the provision was so clogged with conditions, that it is impossible to say upon what point the case turned. Only one opinion of a member of the majority of the court is given. He says, “an equitable jointure ought to be as certain as the dower.” Now,Jhis remark should bo confined to the case before the court — of an equitable jointure upon an infant; yet, even then, a reference to the adjudged English cases will show that it is incorrect. It must have been this dictum, and this alone, which led to the insertion in 4 Kent’s Com., 2 ed. 55, of the paragraph quoted by the complainant’s solicitors. This case of McCartee v. Teller, is cited by Chancellor Kent as his authority; and, that the paragraph does not contain the opinion of Chancellor Kent, excej)t as conforming to what he considered the decision of the highest court of his own state, is apparent from the fact that it is not to be found in the first edition of his commentaries, or in his decision in Jones v. Powel.
    Of the antenuptial provisions, which have been enforced in chancery, many have been decreed to be within the equity of statute 27 Henry VIII, c. 10, and the court of equity, in ^holding them to be bars, proceeded upon the basis of, and in analogy to, that statute. Thus, in Vizard v. Longden, there was no agreement of the wife — merely a bond of the husband; the court of chancery had, therefore, no contract to release dower whose specific performance it could decree. In Jordan v.

      Savage, the woman was an infant at the time of her- marriage — ■ the statute of uses is respecting dower; here the widow claimed her customary free bench'. The wife could, therefore, only be barred by considering the covenant of the husband as “an equitable bar in analogy to the statute.” In Price v. Seys, in Williams v. Chitty, and in Corbet v. Corbet, as the intended wife was an infant, the court probably acted in analogy to the statute. So also in Tinney v. Tinney, that could be the only ground of their action, as there was there no contract of the wife — simply a bond of the husband. In Drury v. Drury, also, the intended wife was an infant, and the majority of the judges considered that “the bar did not arise from the agreement of the woman to the jointure, when the jointure was made before marriage; but from the energy and force of the act of parliament, substantiating the settlement against her for that particular purpose.” The assent of the wife was entirely discarded as an operative circumstance.' The general rule was, that, though a feme infant may contract in regard to her personal property, Harvey v. Ashley, 3 Atk. 607; Williams v. Williams, 1 Bro. C. C. 152; she can not in regard to her real estate. Durnford v. Lane, 1 Bro. C. C. 115; Clough v. Clough, 5 Ves. 710; Caruthers v. Caruthers, 4 Bro. C. C. 509; Milner v. Lord Harewood, 18 Ves. 259, 275.
    The only ground,, therefore, upon which the court of equity could act in case of an infant, as upon a contract, would be the ground of the distinction which C. J. Wilmot and Lord Mansfield seemed disposed to take, between the power of infants to convey away something of their own, and to bar themselves of a right which was a third person’s. Treating it as a contract to accept something in lieu of dower binding on the infant, *Lord Mansfield said, 2 Eden, 74: “ If the statute of Henry YIII had never been passed, courts of equity would have given relief.”
    There are others again of these provisions which have been decreed to be bars to dower on the ground of the contract made to accept them in lieu of dower, and not by any analogy to the statute of 27 Hen. 8. Thus this seems to have been the ground of the decision in Gladstone v. Ripley, and in Davila v. Davila. The agreement to accept by a woman of full age is expressly stated to be the ground of the interposition of a court of equity, in Charles v. Andrews, and the same doctrine is expressed as to the wife’s distributory share of her husband’s personal estate, in Glover v.
      Bates. In Walker v. Walker, 1 Ves. Sen. 54, when it is said the •wife may be barred of dower, where the common law would not bar her, it is added, “which the-court does by way of enforcing "the agreement of the parties.” In Estcourt v. Esteourt, the master -of the rolls considered the question before him a mere equitable -question, resolving itself into two : first, whether the transactions were tantamount to an agreement; secondly, whether it was such .an agreement as was binding on the widow. Arriving at the -conclusion that the transactions were tantamount to an agreement, he had no difficulty as to the second question. He does not -once refer to the statute of uses. It must have been on the ¡ground of the power of courts of equity to enforce contracts that the remark as to an adult woman was made in Caruthers v. Caruthers, and that the decision was based in Simpson v. Gutteridge. Power v. Sheil recognizes the right of a court of equity to in terfere on the ground of contract. This seems to have been the basis of the decision in Selleck v. Selleck et al., for the acknowledgment given after the death of the husband, was defective in law. Such was also the case in Andrews v. Andrews, 8 Conn. 80, dn which case the contract, it was said by the court, was upon a ■sufficient consideration, and should be enforced.
    We feel justified in the conclusion that, wherever there is' a ^contract by a female competent to contract, to accept anything in lieu of dower, courts of equity will act upon her conscience, and, by virtue of its power to enforce the specific performance of contracts, will compel her to abide by her bargain. The .adjudged cases and the text books bear us out in the assertion. In 4 Dane’s Abr., c. 130, art. 5, secs. 20 and 21, an adult woman is •said to be barred by her acceptance of any provision, however small and precarious; in 1 Cruise’s Dig. 226, by her acceptance of any provision; in 1 Claneey on Husband and Wife, 220-223, by her agreement to accept any provision, however inadequate or precarious; in 1 Roper on Husband and Wife, 476, 480, 481, by ¡any terms to which she may think proper to agree before marriage. To the same effect is 1 Mad. Ch. 355; Powell on Contracts, 53. We may add some remarks of the court in Gould, Ex’r, .and the Heirs of Hayes v. Wormack and wife, A. D. 1841, 2 Alabama (N. S.), 84: “It is certain that the jurisdiction of the court •of chancery to enforce contracts entered into previous to marriage, and to compel an execution in lieu of dower, has been long •established. In some cases this must have been by analogy to the statute of Henry VIII, as when the wife is an infant, and not a party, as in 1 Eden, 59; 1 Cox, 20. In others, it was in virtue of the court’s power to enforce performance of contracts without regard to the legal rights of the widow, as in 4 Bro. C. C. 500.” This corroborates the statement in 1 Roper, 480, that “the authority of courts of law for admitting collateral provisions in bar to dower is founded upon a special statute, and the jurisdiction of courts of equity in these matters existed before that act, upon the principle of enforcing agreements entered into between individuals.”
    On examining the provisions which the widows were compelled to accept in the different eases, we will find many subject to the same objections made to the provision for Mrs. Folger.
    In some of them, the provision has been but a small one. In Davila v. Davila, 2 Vern. 724, the wife brought the husband :|:a portion of £1,000 on the marriage, and the sum covenanted to be paid her was only £1,500. In Vizard v. Longden, the bond was for only £14 per annum. In Tinney v. Tinney, the bond was for only £400. In Selleck v. Selleck et al., the provision was only $100.
    In many cases, the provision was charged upon no particular lands, and upon no particular fund. Such was the fact in Davila v. Davila, 2 Vern. 724; in Vizard v. Longden, as see the remarks of Lord Hardwicke, 2 Eden, 67; Tinney v. Tinney, and in Tew v. Earl of Winterton, in which there was, as also in Vizard v. Longden, a bond of the husband. In Williams v. Chitty, the settlement was partly of three per cent, bank annuities. In Garthshore v. Chalie, there was merely a covenant of the husband. There was nothing more in Drury v. Drury, or Selleck v. Selleck et al. Such a covenant Mrs. Folger has -received, and she is similarly situated with the widows in those cases. They held only covenants, which, if they related to lands, were not liens upon any particular piece. 2 Story’s Eq., sec. 1249. And the bonds, in the other cases, were ■charges on the personal estate and chattels real of the obligors, and not of their freehold lands. If the obligor bound himself and his heirs, the heir would be bound to discharge the bond in default ■of personal assets, -if he had real assets of the obligor by descent. .But the obligee could not follow the land descended, if the heir aliened it. 2 Thomas’ Coke, 566, n. s. Any suggestion here as to Mr. Folger’s having disposed of or dissipated his estate, is answered in 2 Eden, 68.
    An infant, to be sure, is not bound by a precarious interest. Caruthers v. Caruthers, 4 Bro. C. C. 509. The widow was held not to be barred of dower, in Smith v. Smith, 5 Ves. 189; but there also the wife was an infant at the time of the settlement, which, Mr. Clancey thinks, in his work on Husband, and Wife, 222, was the ground of the decision. This is the case to which the solicitors for the complainant refer, not taking the distinction between adults and infants.
    *In Harvey v. Ashley, 3 Atk. 612, and 8 Wend. 331, n., it is said by Lord Hardwieke, even in the case of an infant: “ The infant shall not set aside the jointure upon the inequality between the dower and jointure. I will not say how far a mere elusory jointure might be relieved against; but if it is not adequate to what she would have had in dower, it is no réason to set it aside.” We suppose that, in England, as was said in Price v. Seys, 8 Wend. 334, any collusion in making a jointure upon an infant, merely to bar her dower, and not to make a provision for her, suitable to her fortune and quality, would lead a court of equity to let her in to her dower, notwithstanding an antenuptial settlement made upon her. In Williams v. Chitty, the case of an infant, the estates of which the husband died seized, were of the annual value of £1,031 13s., while that of the leasehold and bank annuities comprised in the settlement was only £152. We may further remark, that sometimes the provision has been only a sum of money, and not payable immediately on the death oí the bus-band. As in Davila v. Davila, 2 Vern. 724, and Selleck v. Sellock et al. In Tinney v. Tinney, it was only a sum of money.
    In Gathshore v. Chalie, the conveyance was not to be made until six months after the husband’s death. In Andrews v. Andrews, 8 Conn. 80, there was no provision after the husband’s death.
    These citations remove almost all the objections which have been made to the antenuptial agreement in the present case.
    Is it said that the agreement is void because of the subsequent intermarriage ? The portion of the agreement to be performed after the husband’s death was not extinguished, even at law, but only suspended by the coverture. Gibson v. Gibson, 15 Mass. 110; Gage v. Acton, 1 Salk. 325 ; Milburn v. Ewart, 5 Term, 381. The portion of the agreement granting Mrs. Folger the right, during coverture, to dispose of her personal property, was also well secured to her, and she could have enforced her right at any time. 1 Story’s Eq. Jur. 614, 615, 642; Clancy on Husband and Wife, 282; Huber v. Huber’s Adm’rs, 10 Ohio, 371.
    *A word or two more upon the mode in which the payment of $600 was secured. The agreement stipulates that, on the performance of the things covenanted on the part of Mr. Folger or his representative, she (Eleanor) will release her right to his property, real, personal, or mixed. Performance is thus a condition precedent to her being barred of dower. Unless the $600 were paid her, no one could hold any of Bichard Folger’s real estate, discharged of her dower. All his realty was thus bound for the payment to her. She might, to be sure, have released, but she has not released dower during the coverture. Her release would then have concluded her, not the antenuptial agreement.
    The cases cited, which were expressly on the subject of dower, show that, without regard to statute 27 Henry Till, ch. 10, the court of equity would hold an adult female, like Eleanor Boss, barred of dower by the agreement exhibited in the present case. An examination and comparison of the rules of courts of law and equity, apart from these cases, lead to the same conclusion.
    The two rules, which hamper the action of a court of law, have been already stated to be: 1. That no right to a freehold can bo barred by a collateral satisfaction. 2. That,no right can be barred till it accrues.
    As to the rule of equity on the first of these points, we may refer to Lawrence v. Lawrence, 2 Vern. 365; 1 Eq. Cas. Ab. 218; 1 Bro. P. C. 591, decided as long ago as 1699. There, Lord Chancellor Somers said : “ A collateral satisfaction may be a good bar to dowor in equity, though not pleadable at law.” His decree was reversed in 1702 by Lord Keeper Wright, but the ground of that reversal is stated by Mr. Hargraves, in his note, 1 Co. Lit. Hargr. n. 1, 36 b, 224, and appears, from the remarks of Lord Chancellor Hardwicke, in Walker v. Walker, 1 Ves. Sen. 55. Mr. Hargraves says : “ Lord Somers’ decree against the wife, in Lawrence V. Lawrence, which was afterward reversed by Lord Keeper Wright, and finally, in the House of Lords, was objected to, not on account of any doubt *of dowers being barrable in equity-by a collateral satisfaction, but merely because the devise to th& wife was not expressed to'be in satisfaction of dower.” That the remark of Lord Chancellor Somers was considered as a correct exposition of the rule in equity, is shown by the remarks concerning Lawrence v. Lawrence, in Mundy v. Mundy, 2 Ves. 129. Indeed, the whole action of the English courts of equity, on the subject of devises, in lieu of dower, is based upon the principle that dower is, in equity, barrable by a collateral satisfaction.
    As to the other proposition, that no right can be barred till it accrues, we would see precisely what are the limits to that proposition at law and in equity, and how this agreement is to be treated in view of it.
    The solicitors for the complainant think that if the instrument in the present case is to operate as an agreement, it follows that a contract of Mrs. Folger with a stranger, in regard to her dower, would be good. We do not consider the latter as so clearly deduciblo from the former position. At law, certainly there is a difference between the two. Here let us examine the closing remarks of the court, in Douglas v. McCoy, 5 Ohio, 522. There, it is said that the dower of Mrs. Findlay did not pass. Why? Because no interest in the land passed from Findlay to his pretended grantee. In Todd v. Beatty, Wright, 462, however, where there was a release of dower before admeasurement, it is said, “If the plaintiff had obtained the fee to the two-thirds, when the dower was afterward admeasured, I think the release would have operated and inured to the releasee’s benefit.” From the cases cited in Douglas v. McCoy, we may see that this was the distinction the court adverted to. Thus, in Seymour v. Minturn, 17 Johns. 160, it is expressly admitted that “ a feme covert, or a widow, may release her claim of dower so as to bar her;” but it is added, “she can invest no other person with the right to maintain an action for it.” In 4 Kent’s Com. 61, 62, also, it is laid down, that “the widow can not alien her dower, so as to enable the grantee to sue for it in his own name.” In *the words of Wilmot, C. J., 8 Wend. 316: “Dower is an inchoate, inceptive, initiative right, given by the marriage, and consummated by the death of the husbandit is a mere chose in action, not a vested estate for life, until it is set apart to the widow. So early as Lampet’s case, 10 Rep. 48; Co. Lit. 266 a, the rule was laid down, that no possibility, right, title, or thing in action shall be granted or assigned to strangers; but it is admitted that it may be released to the terretenant. A release of dower, then, to the heirs of the husband, is different at law from an assignment to a third person.
    We admit that, as is stated in Lampet’s case, 10 R,ep. 50, “a. future right or possibility which may be released, ought to have a. foundation and an original inception, so it ought to be a necessary and common possibility.” Thus, a bare possibility — that which the heir has from the courtesy of his ancestor, and which is nothing more than a mere hope of succession — is not the object of disposition at law. Jones v. Roe, 3 Term, 93; Lit., sec. 446; Co. Lit. 265 a.

    But there is a release which, at law, operates by way of rebutter when there is a warranty annexed to the release. Thus, in Co. Lit. 265 a, it is said, in regard to the son’s releasing, in the lifetime of his father, to the disseizor of his father, “ If there be a warranty annexed to the release, then the son shall be barred.” The reason of which is for avoiding a circuity of action. In the time of Littleton, Lit., sec. 733, Co. Lit. 383 b, the word and verb (warrantizo) made the warranty, and was the causo of warranty, and no other word in the English law. But the law in the United States may well be supposed to be different. In 1 Swift’s Dig. 621, it is said: “A man shall not be permitted to defeat a deed under his hand, covenanting that the defendant shall enjoy the premises, and for further assurance.” And it is held, in 7 Greenl. 96, that a covenant that neither the grantor nor his heirs shall make any claim to the land conveyed, though not technically a warranty, runs with the land, and amounts substantially to that covenant, and estops the grantor and all claiming under *him. In the article of agreement in the present case, Mrs. Folger covenants to release all claim to the estate of her husband; and it may well be doubted whether such a covenant contained in a deed, made with the •solemnities required by law for the passage of real estate, would not, even in a court of law, estop the grantor in the deed from making any claim to the land embraced in the deed.
    When the'release covenanted by Mrs. Folger is regarded as the release of a right of action only, we will see that it is not necessary, even at law, that the article containing the covenant should be executed in the legal forms prescribed for the conveyance of real estate. For, as is said in Shotwell v. Sedam’s Heirs, 3 Ohio, 14, “ a man may divest himself of an estate which lies in action only, by doing such acts as operate to bar his action, though no conveyance be executed.

      The position that the article signed by Mrs. Folger might, even in a court of law, bar her by way of rebutter, is sustained by the remark of the court, in Gibson v. Gibson, 15 Mass. 106. In the case of Hastings v. Dickinson, 7 Mass. 153, which, as well as Gibson v. Gibson, was a case in courts of law, there was a failure of the provision agreed to be given the widow in lieu of dower. In Hastings v. Dickinson, nothing was said as to the operation of the agreement of the widow, by way of rebutter. But in Gibson v. Gibson, that point was considered by the court. They hold that the agreement in the case before them would not bar the widow, because they were not informed that there was not a failure of consideration. Their reasoning was in this manner: a covenant operates as a rebutter, to avoid circuity of action; but the law requires, in order that it should be called forth to avoid circuity of action, that the damages should bo commensurate. In this case, the court do not know that the damages are commensurate; for this action is for the value of her dower; but on her covenant, as she has never received, or may never have received her annuity, she would either not be liable at all, or be liable only in an action of covenant, for the difference ^between the value of the dower and the annuity. The court expressly say, however, “ such a covenant may operate as a rebutter.” That is to say, where, as here, there is no failure of consideration, a covenant not to claim dower, may, even at law, bar the widow of dower.
    However a court of law might consider Mrs. Folger’s claim to dower as affected by'her agreement, containing a covenant to release all claim, a court of equity has no difficulty in compelling her to conform to it.
    This caséis one where, as well as in Shotwell v. Sedam’s Heirs, 3 Ohio, 14, “ the agreement, though not a conveyance of the estate, may be setup in equity to bar the widow’s recovery. Equity would enforce a specific performance were the defendants driven to seek it; and as the claimant of dower comes into equity for relief, her equitable rights are all open to be considered.” The chancellor will exercise a restraining power, where the covenantor, contrary to his stipulations, disturbs the tenant by his own act, and he will enforce the specific performance of the covenant for further assurance. Tuite v. Miller, 10 Ohio, 382.
    Placing the covenant of Mrs. Folger in the most, unfavorable light for the defendants in which it can be placed, as a covenant to release real estate — to release a bare possibility, in a court of equity — such a covenant is binding upon her. Even could no action, be sustained at law, on her covenant for damages, yet it is clear that a court of chancery would decree its specific performance. “ There are many cases in which damages are not recoverable at law, but in which a specific performance would, nevertheless, be decreed.” 2 Story’s Eq. Jur. 44, sec. 739. Thus, although at law no possibility, right or title, or thing in action can be grantable to third persons, 2 Story’s Eq. Jur. 361, sec. 1039, courts of equity have long since totally disregarded this rule, 2 Story’s Eq. Jur., 362, sec. 1040. In the last edition of Judge Story’s Equity Jurisprudence, vol. 2, sec. 1040, p. 367, and the note 1 to that section, the rules of equity and the authorities upon this point are *fully exhibited. With reference to the doubt entertained by a few chancellors, as to whether equity could enforce transfers of expectancies, except by regarding them as contracts to bo enforced, it will be remarked that Mrs. Folger’s agreement contains a contract to convey or release after her husband’s death. By the cases cited by Judge Story, it appears that even the naked possibility or expectancy of an heir to his ancestor’s estate, mentioned in Jones v. Roe, as void at law, may, in equity, become the subject of a contract of sale or settlement. In Hobson v. Trevor, 2 P. Wms. 191, the court decreed an execution in specie of a contract made by the defendant to settle for the use of the plaintiff for life, etc., one-third of all the real estate which should come to him upon the decease of his (Trevor’s) father; and in Beckley v. Newland, 2 P. Wms. 172, the agreement between two persons that, whatever J. S. shall by will leave to either of them, shall be equally divided between them, was held to be good. In Whitfield v. Fausset, 1 Ves. Son. 394, there was a double possibility, and yet it was decided that some of the defendants wore bound by their agreement. Upon the same principle, a releaso by a child in London of her orphanage part, may operate as an agreement in equity, and a specific performance will be decreed, where it has been made for a valuable consideration, although at law such release is void. Bac. Abr., tit. Release (H); Blanden v. Barker, 1 P. Wms. 638; Cox v. Belitha, 2 P. Wm. 273; Lockyer v. Savage, 2 Stra. 497; Metcalfe v. Ives, 1 Atk. 63. In Butler v. Haskell, 4 Des. Ch. 638, the above principle is recognized as prevalent in equity; for the agreement there made was considered as valid, had it not been for the gross inadequacy of consideration and the position of one of the contracting parties.
    Is there any doubt, then, that courts of equity, both in England and the United States, do and will, by virtue of their general power to enforce agreements, decree that no widow is entitled to dower, who, being an adult prior to her marriage, enters into an agreement such as was never entered into by Mrs. *Folger, to release her dower for a valuable consideration, paid or ready to be paid her? We do not think any doubt can be entertained, after a review of the numerous cases which have been cited. Nor farther, do we believe that it makes any difference whether the provision she accepts be adequate to her dower or not. Ia tho case of an adult, the courts have not made that inquiry — however much it may be said that they will only enforce contracts which are reasonable. The complainant has not shown that her contract was unreasonable, nor that it does not give a provision nearly approaching her dower estate in value. But if she had, the court would still look to the adjudged cases, where this consideration has not been regarded, except in the case of infants.
    Lot us inquire, then, why the courts of Ohio should not follow the action of the English courts, and the courts of other states. The statute of Ohio, relating to dower, secs. 2 and 5, Swan’s Stat; 296, 297, is substantially a transcript of that portion of the statute of uses, which treats of jointure and eviction from it, altering the English act only in respect to infants. The extent of chancery jurisdiction granted, Swan’s Stat. 698, 699, is restricted by the same words, and they receive the same interpretation here as elsewhere. 6 Ohio, 429; Wright, 65, 732. Wo have, then, the same statute and the same equity powers here as those which have been acted upon elsewhere. These are sufficient to justify the courts of Ohio in following tho precedents.
    It is not enough to say that the statutes of Ohio nowhere expressly declare that such an agreement as this shall be considered a bar of dower. That argument is fully met in Key v. Vattier, 1 Ohio, 150. We can not look to the statute book as the depository of all the law which courts are at liberty to apply. The legislature have, in the dower act itself, given the court ample discretion by enacting (sec. 9), that “ the court, on the hearing of such cause, shall render such decree in the premises as to them shall appear just and consistent with the rights of all the parties interested therein. Section 9 can not be confined to the jointure mentioned in ^section 2 with any more reason than section 19 of the forcible entry and detainer act could limit its first section, Yager v. Wilber, 8 Ohio, 398; or its first section could blot out its nineteenth. Section 9 of the dower act now in force was avowedly a change and enlargement of the law as it stood previously. Section 2 was in the dower act of January 19, 1804. 1 Chase’s Stat. 395. Sections 4 and 5 were introduced into the act of June-1, 1805, 1 Chase’s Stat. 472; under both of which acts dower was recovered by a writ of dower, 1 Chase’s Stat. 187, 472; and a bill in chancery for dower could only have been entertained where objections to the title must be removed. Larrowe v. Beam, 10 Ohio, 503. How then can section 9 be limited by sections 2, 4, and 5, which were, from continued prior acts, framed only for courts of law? Section 9, in fact, does not agree to cover cases-which sections 2, 4, and 5 reach. Section 9 gives the court of chancery power to make such decree as is just. Now suits may still be brought for dower at law, though the writ of dower has fallen into disuse. To suits at law section 9 will not apply. Again, we can scarcely consider it consistent with justice that even an adult should be decreed to be barred of dower, by any provision which she does not accept in lieu of dower. Yet, under section 2, she might be barred by the act of her husband alone, provided the settlement made on her began immediately upon his death, was of lands, however small, and continued for her life — for the statute declares her barred by a “jointure.” For a definition of the term we must go to the English law. There we find it to be a provision by the husband, deriving none of its efficacy as a bar from the agreement of the wife, and to which, in the opinion of Mr. Fcarne, she need not be a party. It is to such a conveyance-that we suppose sections 2, 4, and 5 refer.' Something more must be shown in a court of equity than appears on the dower act, to bring it to the conclusion that it is shorn of all its power as a court of equity, stripped of the jurisdiction given by section 9, and limited only to the application of legal technicalities, and the enforcement of legal bars.
    *The courts of equity of Ohio have not hitherto considered themselves deprived of chancery jurisdiction, even by express legislative enactment, on the subject of that jurisdiction. Thus they have jurisdiction of matters of partition, notwithstanding the partition act of 1831, Wright, 168; and notwithstanding section 14 of the chancery act, they possess the general jurisdiction which a court of equity exercises to quiet a party in the possession of a title which has been tried and determined at law. Marsh v. Reed, 10 Ohio, 349.
    And on the subject of dower, they have exercised a power, and held it to be barred by means not enumerated in any statute. Statutes of limitation do not extend to courts of equity, ex vi termini, yet dower is barred by them. 10 Ohio, 24, 503. In Mansfield v. McIntyre, 10 Ohio, 29, the court say: “ There can be no doubt that an agreement between husband and wife, after a divorce, whereby she shall agree, for a good consideration, to release her right of dower, might be enforced in equity; and should the consideration be paid, the wife would not, after the death of her husband, be permitted to recover her dower.”' In Smiley v. Wright, 2 Ohio, 506, the widow was held to be barred of dower, in equity, because she assented that the sale of the real estate should bo made free from her dower. In Shotwell v. Sedam’s Heirs, 3 Ohio, 5, the widow was held to be barred of her dower in equity, by an agreement on her part, after her husband's death, to accept certain things in lieu of dower. These decisions were all made under the same provisions of law now in force.
    The remark in Mansfield v. McIntyre px-esents the case most nearly resembling this. It is a recognition of the principle that dower may be barred by collatex-al satisfaction and before it accrues, for dower is inchoate only till the death of the husband. It shows that dower may bo barred apart from any statutory provision, by virtue of the power of courts of equity to enforce agreements, and of its rule, that whatever is agreed to be done, shall be considered as done. The only difference between the case there-put and the px-esent is, that there the ^agreement was after;, here it is before mari-iage. Yet equity can as well enfox-ce the agreement befoi-e as after marriage. And it will do so, for, in,the words of the court, 3 Ohio, 5, “ as the claimant for dower comes into equity for relief, her equitable rights are all open to be considered.”
    Were it clearly proved, that thei-e was any fraud in the inception of this contract, or that advantage had been taken of a “ confiding attachment ” or “ an honorable instinct and sentiment of delicacy,” to lead Mrs. Folger to sign a contract which she did not understand, we would not press the court to confirm and enforce the obligation into which she has entered. But we can see no such proof in the case. Although she could not read, she would scarcely have affixed her mark or name to a writing whose meaning she did not comprehend. The execution of the agreement is proved in the only way possible; the witnesses to it being dead, their handwriting is proven. The only statement at all impeaching it, is made by Mrs. Folger herself, not at the time of the contract, and not in the presence of Mr. Folger: this is not evidence which the court can for a moment regard. If Mrs. Folger ever had a claim for services prior to the marriage, she was not charged rent for the house she occupied, and received assistance in firewood and other articles. So far from there being anything in the case to excite the suspicion of the court,' the agreement cautiously guards Mrs. Folger’s rights. She is bound by it to release dower only in the event of her husband’s performing his covenants. Mr. Folger releases all right to her property. She retains everything she had, and in addition receives,, after his death, $600.
    There is nothing singular in a female and male entering into such a contract, prior to marriage; the female having been twice previously married and advanced in years, the husband also advanced in years, and wishing his estate to descend to his children by a former wife. The court will not set aside this contract, unless more suspicion attaches to it than is shown by the circumstances deposed to, particularly when we *find her depositing this very contract with the intended executor of her husband, and the husband clinging to it in his will. If she ever intended to object to it, the proper season was before the marriage, when, if she'did not like the conditions on which he was willing to enter with her into the married state, it was not too late for him to refuse to solemnize the,marriage which could alone give her a title to dower.
   Wood, C. J.

Before we proceed to what is conceived to be the main question, we will dispose of the case in another aspect in which it is presented by the counsel for the respondents, but in which it is entirely unsustained by any legal evidence. It is said Mrs. Stilley elected to take under the will of her husband; and testimony has been taken to show that, immediately after the death of Polger, she received the most of the personal property -devised to her by the will, and enumerated in the schedule; but; the evidence proves she, at the same time, declared her intention not to be excluded by the will, from claiming dower in the lands of her deceased husband. As the will was doubtless designed by the testator to carry out, in good faith, on his part, the covenants contained in this antenuptial agreement, and is substantially the same, her acts, after the death of her husband, in the reception of the property, may be competent evidence to prove a con firmation of the covenants; but are not, we think, competent for any other purpose.

The statute enacts, “If any provision be made for a widow, in the will of her husband, she shall, within six months after probate •of the will, make her election, whether she will take such provision orbe endowed of his lands; but she shall not be entitled to both, unless it plainly appears by the will to have been the intention of the testator that she should have such provision, in addition to her dower.” It is also provided that the election of the widow to take under the will, shall be made known to the court ■of common pleas for the proper county, which shall be entered on the minutes of said court; and if the *widow fail to make such election, she shall retain her dower. Swan’s Stat. 998, secs. 46, 47.

The property mentioned in the agreement, and devised by the will, was received by Mrs. Folger within the time limited to make an election. This is not denied. It was in fact taken very soon after the dissolution of her husband, and in hot haste, though the evidence leaves the fact perfectly clear that his eyes were fully closed before she either seized the property or even announced her intention to break the will. Such an act, however, is not an election, nor can it be proved in this way. An election must be made known to the court of common pleas of the proper county, .and the record, unless lost or destroyed, is the only evidence by which it can be established; because it is the best proof of which the nature of the case admits.

Had Mrs. Stilley elected to take under the will, there would be the end of the complainant’s case; for it is manifest the provisions of the will were designed to bar her dower, as well as the agreement, and in terms the most clear and explicit. There is, however, no competent evidence of such election; and this question may, therefore, be considered as out of the way.

Upon the facts disclosed by the pleadings and the proof in the case, the remaining consideration arises on this antenuptial contract. Does it bar the complainant’s right? It is insisted that it was procured by fraud; but, if not impeachable on this ground, that it is insufficient to bar a plain, statutory right to dower. In the opinion of this court, such agreements must be entered into bona fide, with a full knowledge of their consequences, and, under the circumstances, make reasonable provision for the wife, or courts of equity ought not to permit them to be set up as equitable estoppels.

What is the proof of fraud ? The instrument, it is said, and truly, bears on its face, as witnesses, the names of two of the decedent’s children, and was executed in the house of the deceased. It is not acknowledged. It is disclosed by the proof that Obed Folger, one of the witnesses, guided the hand of Mrs. Stilley *when she signed it, and that she can neither read nor write. It is also in evidence that she declared to others, either just before or soon after her husband’s death, that she was passive in the execution of this agreement, and ignorant of its effect. These are, substantially, the reasons relied upon to impeach this arrangement. They have been eloquently and ably dwelt upon by the complainant’s counsel; and it must be admitted that, without explanation, they are well calculated to awaken the suspicions of the chancellor, and perhaps lead him to doubt the fairness and integrity of this antenuptial agreement. If his suspicions -vyere not removed, he would doubtless hold his soliloquy in language identical with the counsel in the case at bar: What person so exposed to imposition as a woman, contracting, personally, with her intended husband, just on the eve of marriage, at a time when all prudential considerations are likely to be merged in a confiding attachment, or suppressed from an honorable instinct and sentiment of delicacy.” Surely, it would be a reproach to the law, if the very virtues and graces of woman were thus allowed to become the successful means of overreaching and defrauding them in bargains.”

It must, nevertheless, be admitted, that the conscience of the chancellor, though touched with sentiment so delicate, would hardly stand excused, should investigation cease, relief bo decreed, and not even a glance cast nor a thought bestowed on the other side of this picture.

The evidence is clear that this lady had passed the age of middle life. She was doubtless forty or fifty, in very humble circumstances. She was, at the time of this arrangement, the tenant of Richard Folger, who charged her no rent, but furnished her with the means of subsistence. She had then been the wife of two husbands, the last of whom was an inmate in the City Hospital. Under these circumstances, she ingratiated herself into favor with Richard Folger, by her kindnesses and attentions to his two children, the witnesses to the agreement, for the period of about five months, when they died. Richard, *theu a widower of sixty or seventy winters, the evidence shows, assisted the complainant to procure a divorce from her husband, and then manned her himself. The divorce effected, these covenants were entered into, and the marriage consummated ; and, in looking, therefore, to the whole case, we have not been led to the conclusion that “prudential considerations were lost sight of in a confiding attachment.” No “honorable instinct of sentiment or delicacy,” is perceived by us in the transaction. It is undeniable that the marriage, on her part, was one of convenience only, and that it was effected by means cold and selfish. The cautious and guarded manner in which the rights of Mrs. Folger, as well as his, were secured by the marriage settlement, show, most unequivocally, that this lady understood well what she was doing and how to play her part. All supposed actual fraud may therefore be laid out of view.

Why, then, should not this agreement be enforced? Antenuptial contracts have long been regarded as within the policy of the law, both at Westminster and in the United States. They are in favor of marriage and tend to promote domestic happiness, by removing one of the frequent causes of'family disputes — contentions about property, and especially allowances to the wife. Indeed we think it may be considered as well settled, at this day, that almost any bona fide and reasonable agreement, made before marriage, to secure the wife in the enjoyment either of her own separate property, or a portion of that of her husband, whether during the coverture or after his deattq will be carried into execution in a court of chancery. Though, for many purposes, by the marriage, the legal existence of the wife is merged in that of her husband, the law recognizes her legal and separate identity and her separate rights; and she may preserve the one and enforce the other, in contracts of this character.

It is said that courts of law are hampered by rigid rules, and that such agreements were never bars at law, unless they possessed the requisites of a jointure, under the statute of 27 Henry 8, c. 10. This is of little consequence to be determined in this case. *It is certain, however, the statute of uses was never in force in this state, and that courts of equity, here, derive no authority from its provisions, to set up those arguments in bar of dower. It is equally certain that they have repeatedly been enforced in the courts of our sister states, as equitable jointures, though they did not afford a competent livelihood of freehold for the wife, of lands and tenements, to take effect presently after the death of the husband. Lord Coke defines a jointure in 1 Ins. 36.

In New York, where the statute of uses has been copied and adopted, it has been held that any agreement between adults, for pecuniary provision, to be admitted, neither charged upon the lands of the husband nor to take effect immediately after his death, nor equal to the right of dower, in value, if reasonable, under all the circumstances, is a good, equitable jointure. Indeed, it is said, in one excellent work on real property, that, in equity, any provision which a woman accepts before marriage, in satisfaction of a dower,, as a trust estate, or a mere personal covenant for money to be paid by the husband, is a good jointure. 1 Hibbard’s Eeal Prop. 108.

Under our own statute, Swan, 198, sec. 2, though the terms of an antenuptial arrangement may not fall within the technical definition of a jointure, if consistent with the rules before laid down, no reason is preceived by us why it may not be viewed in chancery as a good equitable jointure. Or, in fact, why such court,, acting, not in obedience or analogy to any statute, but upon its own broad and inherent doctrine, should not regard such agreement as a complete equitable estoppel to the prosecution of such claim for dower.

It is said in this case the provision made for the wife is so much less than the value of one-third part of the husband’s lands, thaWt would be unreasonable to permit the agreement to operate as a bar. There is not, however, with the proofs, anything satisfactory to show the value of the real estate of the husband, or of which he died seized ; and, without such evidence, no such deduction can be legitimately drawn. On the whole case, we think the bill should be dismissed, with costs.


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    Timothy Brainard and Ward Pendleton v. John Harris.
    Giving time for the payment of a judgment, is a sufficient consideration for a note given hy the defendants to plaintiff’s attorney, for his fees in the
    This is a bill in chancery, reserved in the county of Portage.
    The bill states that on or about the year 1838, the Farmers’ Bank of Canton recovered against the complainants, in the Supreme Court of the county of Portage, a judgment for about *$>4,000; that the defendant, Harris, as attorney for the bank, ordered an execution, which was issued. By virtue of this execution, the sheriff levied upon the goods of the complainants, which were sold, and the judgment in part satisfied. That at the time of said sale, the complainants applied to said Harris for extension of time on the judgment aforesaid; he agreed to the extension, upon condition complainants would give him their judgment note for §100, which ho claimed as being due him as fees in said suit, with which condition complainants complied, executed the note, and judgment was stayed accordingly. Harris afterward procured judgment to be entered on the note, and complainants paid §50 in part satisfaction, and Harris has procured an execution to be issued to collect the balance.
    The prayer of the bill is, that the judgment may be enjoined, etc.
    To this bill the defendant, Harris, demurred.
    No argument submitted for complainants.
    Harris, for defendant.
   Hitchcock, J.

The only question which seoms to be presented in this case is, whether there was any sufficient consideration for the note upon which the judgment at law was rendered. Harris was the attorney for the Farmers’ Bank of Canton. As such, he had recovered a judgment against the complainants. They were anxious to obtain time for the payment of this judgment. He was willing to give the time, provided they would pay him his fees, or secure the judgmont. There was nothing unreasonable in this proposition. The complainants were willing to, and did comply with it. They thus thought the consideration was ample. And it seoms to us, there can be no doubt of the validity of the contract. On this ground we sustain the demurrer and dismiss the bill, without inquiring whether the remedy of the complainants, if they have any, was not at law. Bill dismissed.


text:
    *Robert Porter v. Richard Porter and others.
    TJn der a statute of Ohio, where a general verdict is returned in favor of the plaintiff, and the declaration contains several counts, some of which are good and some bad, judgment may be entered upon the verdict, if the evidence was applicable to the good counts
    This case comes before the court on a motion in arrest of judgment, reserved in the county of Stark.
    The action is assumpsit, against the defendants.
    . This is an action of assumpsit against the defendants, as shareholders, stockholders, and partners, in a certain unauthorized and unincorporated banking institution, known by the name and style of the Orphans’ Institute Bank. The declaration contains several counts.
    To the declaration, a plea of the general issue was filed, and on trial to the jury, a verdict was returned for the plaintiff.
    The defendants then moved an arrest of judgment, for the following reasons:
    “ 1. There is no consideration stated in either of the four counts, on which said verdict was found, to support the contract therein set forth.
    “ 2. There is no promise, in other words, no complete contract, stated in either of said counts.”
    Griswold & Grant, for defendants.
    Geo. W. Belden, for plaintiff.
   Hitchcock, J.

Most of the points raised in argument in this case have already been decided at the present term, in the case of Porter v. Kepler et al., and will not be further noticed. The question now to be settled, depends upon the sufficiency *of the declaration. The declaration is certainly very inartificially drawn ; and, had it been demurred to, it might have been sufficient to sustain it. Indeed, we think that some of the counts are too defective to be sustained after verdict. In the fourth count, however, the plaintiff, after stating that the defendants were stockholders, etc., of a certain unauthorized banking institution, etc., “ issued their certain certificate, called a certificate of deposit,” which said certificate of deposit is as follows:

“ This certifies that Robert Porter has this day deposited in this institution $550, subject to his order on the 1st day of April next, on return of this certificate. Stark County Orphans’ Institute Bank, Fulton, Ohio, March 13, 1839. Win. A. Clark, teller.”

This is the instrument declared on, and it shows a consideration received and a promise, or that which is equivalent to a promise, to pay on the 1st day of April next after its date. Compare this allegation with the requirements of section 13 of the act of January 27, 1816, to prohibit the issuing and circulation of unauthorized bank paper, Swan’s Stat. 136, and we must say it is sufficient. That section provides, “ that in such suit ” (that is, in a suit against the stockholders of an unauthorized banking company) “it shall be sufficient for the plaintiff to set forth, in substance, that he is the holder of such note, bill, bond, or contract; that the defendants were interested in said bank at the date of such bond, note, bill, or contract, or subsequently thereto, and that it remains unpaid.”

Our statute, contrary to the rules of the common law, has provided that where there are several counts in a declaration, some of which aré bad or defective, and the residue good, and the jury shall return a general verdict for the plaintiff, the court may give judgment on the good counts to which the evidence was applicable. Swan’s Stat. 688. The evidence in this case was applicable to the fourth count in the declaration, which we hold to be good.

The motion in arrest is overruled, and judgment may be entered on the verdict.


text:
    Benjamin H. Buckingham v. The Zanesville and Maysville Turnpike Company.
    The effect of the act of March 11, 1844, entitled “ an act to provide for the payment of the contractors on the Zanesville and Maysville Turnpike lioad,” is, to relinquish, for the payment of the debts therein specified, the tolls due the state, until those debts are paid.
    This is a bill in chancery, reserved in Muskingum county.
    The bill in this case is filed by the complainant against the defendant under the act of March 5, 1842, “ to regulate the mode of collecting debts against any turnpike companies, in which the state is a stockholder, and to authorize the companies to appropriate their portion of the tolls for the completion of the roads, and for other purposes,” and was filed June 25, 1842.
    It sets forth that the complainant is a creditor of the company, that the state is a stockholder, and that the indebtedness originated in labor performed (or the company in the construction of their road ; and the prayer of the bill is that a receiver *may be appointed, and that the tolls collected upon the road may be appropriated for the payment of the debt.
    No answer was filed by the defendants; and, at the June term of the court of common pleas, 1844, a decree was entered, from which the complainant appealed to this court.
    Stillwell, for complainant.
    Goddard & Convers, for defendant.
   Hitchcock, J.

Tho object of the parties to this suit, in bringing the same before this court, seems to be to elicit a construction of some two or three statutes of the state which are supposed to bear upon tho case. We need go no further back than to the act of March 5, 1842, under which this bill was filed. This act provides, in the first section, “that any person having a claim of any description against any turnpike road company, in which the State of Ohio is a stockholder, may proceed to collect such claim by a proceeding in chancery against said company, in any court of competent jurisdiction; and on hearing and determination of such suit, if the complainant shall sustain his claim, the court shall render a decree accordingly, and appoint a receiver, whose duty it shall be to receive the tolls collected on said road; and, after paying the necessary repairs and expenses of said road, shall, on tho order of the auditor of state, pay into the state treasury tho amount due to the state in proportion to the amount paid on its number of shares, in the stock of said company; and the balance, after paying the costs of said suit, he shall apply to the satisfaction of the decree in favor of said complainant or complainants; and it shall be the duty of such receiver to make such payments as often at least as once in every six months; and ho shall, also, at the close of each six months, report his collections, the amount paid for repairs, and the amount due to the State of Ohio, to the auditor of state.” 40 Ohio Laws, 39.

Section 3 of the act authorizes the directors of such turnpike road companies, after having paid the state the portion *of tho profits to it due, to apply tho remainder of the profits, first, to the payment of the debts of the company; second, for the extension or completion of the road; “and the amount of profits so appropriated, as well as the balance applied by any receiver under the first section of this act, in payment of any decree, shall be considered as so much paid, in additional shares, for tho stockholders in said company; and the state, and the stockholders, shall receive dividends in proportion to tho amount paid on their respective shares.”

There is no difficulty in understanding these two sections of the act. The tolls of the company, excepting such as are due to the state, are to be appropriated to the payment of its debts. In case suits are commenced, then these tolls are to be so appropriated, through the instrumentality of a receiver; otherwise, the directors of the company may appropriate them. Nor is the payment confined to any particular class of debts. After the debts are paid, then the tolls may be applied to the completion or extension of the road.

On March 11, 1844, another act was passed, entitled “ an act to provide for the payment of contractors on the Zanesville and Maysville Turnpike Road,” which act is as follows:

Sec. 1. Be it enacted by the General Assembly of the State of Ohio, That the president and directors of the Zanesville and Mays-ville Turnpike Road Company be, and they are hereby authorized to appropriate all the tolls hereafter received on said road, alter deducting all necessary expenses of repairs, and other incidental expenses connected with the collecting and disbursing the tolls, repairs, and managing the road, as far as may be necessary, to the payment of contractors on said road, who performed labor on the said road prior to March 1, 1842, and who are yet unpaid therefor.

Sec. 2. All acts and parts of acts contrary to the provisions of this act, be and the same are hereby repealed. 42 Local Laws, 160.

*By this act, all the tolls thereafter to be collected on the road, arc to be applied to pay debts contracted for labor on the same performed previous to March 1, 1842; whereas, by the act of 1842, only such tolls as belonged to stockholders other than the state, could be appropriated for the payment of debts. In this, then, this act differs from the former, and so far operates to repeal it. It operates as a relinquishment on the part of the state, of its claim for tolls, until debts for labor performed on the road , prior to March 1, 1842, are paid. This was unquestionably the bearing, and probably the only design, of the act. We do not suppose that it was the intention to divest any creditor of rights already acquired under the act of 1842, whether such creditor was such in consequence of the performance of labor, or not. All that was intended was, that the state would relinquish its right to tolls until a certain class of debts were paid.

But can these tolls be appropriated, through the instrumentality of receivers, according to the first section of the act of 1842 ? This act names the president and directors of the company as the agents who are to receive and pay out these tolls. It says nothing about receivers. So, in one aspect of affairs, the act of 1842 authorizes the directors to appropriate the tolls for a similar purpose; but this did not-interfere with the disposition of tolls by receivers.

If we are right in the construction of the act of 1844, it does not interfere with the rights of creditors to prosecute under the act of 1842. Suits may still be prosecuted, and, if prosecuted, receivers must be appointed; and these receivers will, as under the law of 1842 they are required to do, receive all the tolls. But, instead of paying a portion of those tolls to the treasurer of state, on the order of the auditor, they will be distributed pro rata to the creditors. And creditors who had prosecuted suits, previous to the passage of the act of 1844, as well as others, are entitled to the benefit of that act, the object and intent of which was to increase the fund from *which debts were to be paid, so far at least as creditors for labor were concerned.

A decree may be taken accordingly.