delivered the opinion of the Court. This is assumpsit upon a special contract, accompanied with the money counts. The case was referred to an auditor, who has examined the evidence and reported the facts with great labor and distinctness. The facts are somewhat complicated, but may be briefly stated. From the report of the auditor it appears, that the defendant, in January 1828, held two mortgages against one Jacob Douty, and had also a claim for divers sums of money before that time paid to him and for his account. At the defendant’s request, Douty had also executed a quitclaim to the defendant, of the mortgaged premises ; and the wife of Douty had released her right to dower. The arrangement was made for the purpose of enabling the defendant to sell the premises, and from the proceeds to pay his claims against Douty, and account for the surplus. It was agreed that the defendant should pay $500 for the release of the dower. Douty was broken down by intemperance, and made little or no provision for his wife and children. It was agreed that the sum of $100, (part of the $500,) should be paid to the plaintiff for the use of the wife and children, if the defendant should realize $200 over and above the amount of the claims which he then had against Douty. Thereupon the special agreement was made.
The object of this action is to enable the piaintiff to recover the $100, for the use of the children of Douty, his wife having deceased before this action was commenced.
The plaintiff declares, in effect, that the defendant has sold the estate according to the agreement between the parties in *506interest, and has realized more than $200 over and above the claims which the defendant had against Douty, the husband ; so that the defendant now should pay the $100 to the plaintiff in trust for the children. And to maintain his action the plaintiff has offered the husband as a witness. He was admitted by the auditor, notwithstanding the objections of the defendant.
It will be convenient in the first place to determine whether Douty was a competent witness. It is contended for the defendant, that Douty is directly interested in the event of this suit; that the contract of the defendant to pay money to the plaintiff for the use of the wife and children, so far as the wife was concerned, was just as if it had been for the use of the husband ; that it was a chose in action, which vested in the husband, just as a promissory note made to the wife during the coverture would have vested in him ; that it is like the case where A gives money to B, for the use of C, in which case C may bring the action for the money in his own name, according to well settled principles of the law.
But we all think, that this was a post-nuptial contract, upon valuable consideration, as fully appears hereafter, intended for the benefit of the wife and her children, the legal title to which vested in the plaintiff. They had a joint interest in the contract, which survives to the survivors. The wife having deceased, the children are entitled ; and if one child should decease, the surviving children would be entitled. So that Jacob Douty, the husband, could not by law have maintained an action upon the contract touching the $100, against his agreement, that it should be paid to the plaintiff, as before stated. We all think that he was a competent witness for the plaintiff, in this action.
The claim of the plaintiff has however been met with various objections on the part of the defendant, which will now be considered.
It has been contended for the defendant, that the contingency upon which the payment depended has not happened : that the defendant has not sold the land ; but that the title remains in him just as it did before and at the time when the agreement was made.
*507The obvious intent of the parties was to ascertain the cash value of the property as it was then held by the defendant And for that purpose it was offered at a public auction, to be sold to the highest bidder. The defendant employed Asa T. Newhall to assist in making the sale, measuring the land, setting off the lots, &c. ; and Jacob Douty likewise requested Néwhall’s services on that occasion. He undertook, upon their requést, to superintend the sales, which were made on the 14th and 24th of May, 1828.
The defendant attended and observed to the company, tna the object of selling the property was for him to get his pay, that whoever purchased the property, he should quitclaim his right to him ; that he should not warrant the property ; that he should bid upon the property, and if he bought any of it, he should get it as others would, upon the conditions of the sale. The whole of the estate (except half of the island, of the value of only $50) was put up at the auction, and the homestead and the greatest part of the real estate were struck off to Sanger, the defendant. And on the 11th of November, Newhall accounted with Sanger for the proceeds of the sales ; and he then gave the following receipt. 61 November 11, 1828. Then Asa T. Newhall Esq. settled and accounted to me for the above Account of sales. Abner Sanger.”
These facts are, as we think, a perfect answer to the suggestion, that the property has not been sold within the meaning of the agreement upon which this action was brought. In common parlance it has been sold, and the defendant, according to the testimony of Newhall, and the report of the auditor, received $3143-06 for the gross proceeds of the property. The net proceeds, after the allowance of the auctioneer’s and defendant’s expenses and commissions, amount to $3018-40. The auditor has allowed the sum of $2506-68, for the claims of Sanger against Douty, existing on April 28, 1828 ; leaving a balance in his hands of $511-72. He has realized (to use the words of the agreement) over two hundred dollars more than the amount he had paid Douty, and all charges of interest of money theretofore paid Douty.
But it is contended for the defendant, that this has not been realized in cash ; that he holds the estate just as he did before. *508We all think there is no weight in this argument. If Sanger bad not bid the sum of five dollars more than the bidder next before, upon the homestead, that part of the property would have been paid in cash. And the same remark applies in regard to every part of the real estate that Sanger bought. If he had permitted the property to be struck off to the persons bidding next before him, cash would have been paid greatly exceeding the amount of $200 over bis claims against Douty. But it is not, we think, for the defendant to raise this argument ; for he attended the auction as a bidder, and preferred to hold the land, and other property which he bought, at the prices for which the same were struck off to him, rather than the cash. He accounted with Newhall for the proceeds of the auction sales, as cash.
But it has been contended, that there were incumbrances upon the real estate, for claims due from Joseph Douty (the father of Jacob Douty) for which the defendant should be allowed, amounting to the sum of $270-81.
There are two answers : 1. Those claims were paid by Sanger after April 28, 1828 ; and 2. He offered only what right he had to the estate, at the auction, and would not give a warranty. It is perfectly clear, that strangers purchasing would have been entitled only to a deed of release and quitclaim from Sanger, which would not have covered the claims now under consideration ; and Sanger avowed at the auction, that he should bid upon the same terms as other persons should bid.
It has been contended that Jacob Douty has recovered the sum of $350 from the defendant, which was the fund out of which this sum now claimed by the plaintiff, should have been paid. But we think it is a sufficient answer, that the plaintiff was not a party to that suit or matter, and is not thereby to be prejudiced. The transaction was after the agreement upon which the plaintiff declares ; and the rights of the plaintiff had Vested. And we think that the compromise between Jacob Douty and Sanger, of the matters between them growing out of the accounts relating to this estate, was competent evidence, in the nature of a confession, that there was money due from Sanger to Douty, notwithstanding the olaintiff was not a party to that controversy.
*509It was contended, that interest should have been allowed from May, when the sales were made, to November, when Sanger received the proceeds from Newhall. But we think that the land was received in May as cash, and so this claim of the defendant was rightfully disallowed by the auditor. There was no necessity for the defendant to make deeds to third persons and take the estate back, which he put up at the auction, because the title was already in him. And this proceeding being with the full knowledge and consent of Jacob Douty, would preclude him from making any further demand upon Sanger touching the premises. It would be regarded as an equitable performance of the trust to account for the property which Jacob Douty had conveyed to him, according to their agreement.
But it has been contended, that there was no consideration for the defendant’s promise, or that it was made upon a past consideration.
The promise was made on the 2Sth, and the release of the dower of Mrs. Douty was dated on the 26th of the same month. So it is argued, that the consideration arising out of that release of dower was past, and would not support the promise set forth in the declaration, as made on the 28lh of April. Now it appears from the evidence of A. T. Newhall, that it was not delivered at the time it was executed ; but the presumption is, from the facts which were proved, that it was delivered at the time when the agreement was made So the promise was riot made upon a past consideration.
But it was upon a valuable consideration. It was for the release of the right of dower to the defendant. And there was a good consideration moving from the wife, for the husband to appropriate the money according to the agreement. It was a transaction which would have been held valid even against the creditors of the husband. For there is no intimation of fraud on his part. It would fall within the case of Bullard v. Briggs, 7 Pick. 533 ; where the husband, m consideration of his wife having released her right of dower in an estate which the husband had mortgaged, conveyed the rigk. in equity to a stranger for the use of the wife. The *510rights of creditors' are not involved in this discussion; nor is the defendant acting or defending on their account.
We might perhaps have waived a great part of the examination, by resting the opinion as to the amount realized by the defendant, upon his own acknowledgment with a full knowledge of all the facts. But we have preferred the coutse we have taken ; and we are all of opinion that the plaintiff has fully supported his action. According to the agreement cf the parties, the defendant is to be defaulted and judgment is to be rendered for the plaintiff accordingly.