The opinion of the Court was delivered by
Moses, C. J.We concur with the Chancellor, that the interest of the wife, Jane F. Davis, under the terms of the deed, is to her sole and separate use.
qTo create such an interest, it is sufficient, if a plain intention appears, to exclude the husband from its legal ownership. Technical words are not necessary if there is enough to show, by clear expression, that the purpose was to deprive him of that title, which, in the absence of such intention, he would acquire by virtue of his marital rights. A direction inconsistent with his full ownership of the property will be as potent to protect her in the separate enjoyment, as if the most exprtess terms were employed to that end.
Where, therefore, the instrument establishing the trust makes the receipt of the wife a sufficient discharge, the employment of those words is held to confer a sole and separate estate. — Lee vs. Prieaux, 3 Br. C. C., 381; Tyler vs. Lake, 2 Russ. & M., 183; Wilson vs. Bailey, 3 Strob. Eq., 261.
The deed did not, in any manner, restrict the wife in the appropriation of the proceeds of the hire or labor of the slaves. They were not to be held by her subject to a particular power of disposition, either by appointment or otherwise. Her use of them was not limited to special .provision, and she is to be regarded, in respect to the control of the income secured to her separate use, as a feme sole. — Ewing vs. Smith, 3 Dess., 417; Dunn, et. al., vs. Dunn, et. al., 1 S. C., N. S; Metho. Epis. Church vs. Jaques, 3 John. Ch., 113. Although the agency of the husband, John M. Davis, ceased upon the death of Alexander H. Mclver, the trustee, still the legal title to the property was in his personal representative. “Trusts expressly created, when of personalty, on the death of the trustee vest in his executors or administrators.” — Willis on *134Trustees, 53; Hill on Trustees, 303. Whether Davis continued to manage the trust estate after the death of Mclver, with the express authority of his personal representative, or whether, without any interference on his part, he remained in the supervision and direction of it, as he had'in the lifetime of the original trustee, does not appear. While Davis and his wife were both alive, no one was entitled to the proceeds or profits of the property, but the cestui que trust, the said Mrs. Jane F. Davis. During all the transactions between her husband and the defendants, C. Coker & Brother, of which, according to the Circuit decree, she had full knowledge, she did not take a single step within her competency, as a married woman with asolé and separate estate, to arrest the course of her husband with respect to her settled interest, but, on the contrary, sanctioned it by her conduct. From the execution of the deed in 1842 to 1861, the same manner of dealing was conducted between the parties, and to make the Messrs. Coker now responsible for so much of the payment to them of the proceeds of the hire or labor of the slaves, the subject of the trust estate, which their advances, in a great part, tended to aid and sustain, would not be consistent with the principles of honesty and fair dealing which Courts of Equity encourage and enforce.
■ It cannot be pretended that if the proceeds of the trust property had been paid over to Mrs. Davis by her husband and her receipt therefor taken, that she was incompetent to transfer them to him to deal with at his pleasure.
If the trusteeship had ever been vacant, and the husband dealt with the estate as his own, he would be treated in equity as a trustee for the benefit of the wife. — Hill on Trustees, 420.
If Davis, the husband, is to be considered as a trustee de son tort, by having, of his own will, intermeddled with the management of the trust, he would be subject to the same rules and remedies which obtain as to constructive trustees. — Hill on Trustees, 173.
When such a trustee has complied with all the requisitions of the deed or will which devolved on the party in whom the legal title was intended to have been vested, he could not be called to answer anew, if he had already done all which could have been demanded of a rightful trustee, for then there would be nothing of which the cestui que trust could properly complain.
The proof leaves no doubt of the fact that the Messrs. Coker had notice of the deed, and of the death of Mclver, and they are therefore to be considered in the position of those interfering with trust *135funds, with knowledge of the source from which they were derived and the purposes to which they were appropriated.
The condition, however, iu the deed, which required the receipt of Mrs. Davis on the payment to her of the proceeds, was intended to protect the wife against the legal rights of the husband, by securing to her sole and separate enjoyment the usufruct of the property. Its aim and object were to subject to her use the proceeds of the labor of the slaves, with unrestrained power, on their receipt, to dispose of them, if she so desired, in favor either of her husband or a stranger. A technical adherence to the terms of the deed could do no more than ensure the payment of the proceeds to her, that she might have uncontrolled use of them. The deed in no way. undertook to regulate or restrict -her disposition, and, if the end which it Avas intended to accomplish has in fact been attained, it would not be consistent with any rule of equity or justice to convert what was intended as a security for her into a medium through which she could perpetrate a fraud upon others.
The evidence impressed the Chancellor, as it does this Court, with the fact of full cognizance, on the part of the wife, of all transactions between her husband and the Messrs. Coker in regard to the annual transfer of the crops and the cash and notes received for the hire of the slaves, in consideration of' the advances and supplies furnished by them. Whether, beyond their necessity for the support of the trust property, there. Avould be thereby acquired any claim against it, seems to be fully settled by the decisions of the former Appellate1 Court of this State. That question, however, is not involved in the ground on Avhich Ave base our judgment here.
Mrs. Davis, in her testimony, states that, after the death of Me-Iver, her husband managed the trust estate in the same manner as he had done in his lifetime. From 1842, when the deed w'as executed, up to 1861, there Avas the same character of dealing; and, during this whole period, if the Avife was not aware of the application of the annual proceeds, it is strange that she never called for their payment to her. In fact, to use her own language, “she looked upon Mr. Davis as mubh her agent as Mr. Mclver looked upon him as the party authorized to manage the business all the time.”
We are not considering here the right of this cestui que trust, being covert, to constitute an agent when the power is not specifically given; for if she, without such authority, could re-nominate *136her husband, she could as well name a third person, and without a special grant of the right she could appoint neither.
We have already said that her control of the proceeds, when received by her in conformity with the stipulations of the deed, enabled her to make her husband the beneficiary of them. Even where the married woman is considered, in regard to her separate estate, as a feme sole, only to the extent of the power conferred by the instrument, if this does not restrict her disposition and alienation — if she permits the husband to receive the rents and profits of her estate— the presumption is that it is with her assent and by way of gift.— Hill on Trustees, 425, and note 2.
In Methodist Episcopal Church vs. Jaques, 3 John. Ch., 80, Chancellor Kent says, in reference to this question, “ that, as between strangers, a more strict and severe proof would be required; but the books teach us that the greatest liberality is shewn, and the most favorable presumptions indulged, where the husband is permitted by the wife to be concerned in the management of the income of her separate estate as it occasionally accrues.”
The point, of gift does not arise here, for the husband prefers no claim, through such title, to the annual proceeds; but this long continued dealing between him and the Messrs. Coker, in respect to them, sanctioned by knowledge and acquiesence, precludes any right on the part of the plaintiff, the substituted trustee, to call upon them for an account in her behalf.
The bill in regard to the rights of the wife, as to the annual proceeds, is not entitled to favor. It is not framed in an aspect that recommends it to any consideration beyond that which the mere principles which it seeks to' enforce demand. The wife has preferred no claim through a next friend ; but the substituted trustee is the plaintiff complaining, and she and her husband and children are made parties defendant. Neither she Dor they, (save the minor child,) file any answer; but on the subprona is the following endorsement, subscribed with their respective names: “We accept service of this writ, admit the worth (a) of the statements in the bill contained, waive time, and consent that the prayer in the said bill shall be granted.”
It is a proper occasion to say that this practice is not to be encouraged. A defendant called in by bill must answer in proper form, or take all the consequences which a default in obeying the requisitions of the writ will entail. If he proposes to answer, it *137must be according to the forms prescribed by the rules and usage of the Court.
The view which we have taken of the points made; so far as already considered, preclude the right of plaintiff to a general account of the funds alleged in the bill to have been received by the defendants, the Messrs. Coker, of the said J. M. Davis, or to a transfer or conveyance of the Parrott land. '
We concur with the Chancellor in holding that the Messrs. Coker are not entitled to the land. The whole transaction places it beyond doubt, that it was to be held as a security for the debt to them. They can claim nothing more than an equitable mortgage of it, and a sale of the premises, which will be directed.
We also concur with the Circuit decree in holding that the judgment confessed by Davis was no satisfaction of the debt due them on account of their advances for the payment of the land. Even if in a Court of law it could be so ruled, when it plainly appears that in taking it there was no intention to change or affect their rights as to the money advanced, or their remedy for the debt due them on its account, equity will not regard that as satisfaction which the parties themselves, on both sides, did not intend so to operate.
In Gardner vs. Hust, 2 Rich., 601, it was held, that “ the taking of a higher security, if accepted as satisfaction, extinguishes a lower one for the same debt; and the law, it seems, will imply, in the absence of proof to the contrary, that the higher security w%s taken as'satisfaction; but if it be made to appear that it was not taken as satisfaction, then it will be merely additional or commutative security.”
If the claim of the Messrs. Coker to the land is only by and through an equitable mortgage for the security of the money advanced in the purchase, it cannot be «¿regarded as merged in the judgment, or waived by it. In fact, if Davis was utterly insolvent when the confession was given, as the bill alleges, the mortgage is not only a better, but a higher security. Through the judgment the land could not be reached while it can be available to respond to the mortgage by the lien which-it holds.
The instrument executed by the Messrs, Coker & Brother, to the said Davis, on the day of the taking of the confession, referring to the stipulation of time when payment was to be demanded, expressly declares, “ that nothing in the said instrument is to waive our right to claim any and all such property or money as may now be liable for the said debt.”
*138This recital brings the question within tlie principle declared in Twopenny vs. Boys and Young, 3 B. & C., 208, and Sally vs. Forbes and Elleman, 2 B. & A., 38.
The claim of the plaintiff, as to the negro Charlotte and her four children, is affected by other considerations. They were of the corpus of the estate, and after the death of Jane F. Davis, in the lifetime of her husband, 'the proceeds are to be applied to the maintenance and education of the children, and on the death of the husband they were to be conveyed and delivered to sirch of his children as he might indicate by his last will and testament. All of the children have renounced and assigned to the said Messrs. Coker their interest in the said slaves so sold, save the minor son, Charles A. Davis.
If Mclver, the original, or any lawfully substituted trustee, had sold Charlotte and her children to one having notice of the deed, the sale would have been invalid. Much more is it so when made by one in no way invested with the legal title. The cesiuis que trust interested are the married woman and the infant. On their behalf the Circuit Court, in and by its decree, has elected, for their benefit, to confirm the sale. When the Messrs. Coker bought, they well knew that .the vendor had no power to sell. They assumed all the risk of defect of title, and it would not be equitable now to permit them to renounce the purchase, because the slaves were afterwards emancipated. One knowingly dealing with trust property to the prejudice of those for whose benefit it was held, must stand to his bargain, unless they insist on defeating it. With what grace could a purchaser ask to set aside a sale on the ground of a supposed defect of title, afterwards arising, when he knew, at the time it was made, the vendor could convey no title?
When the sale was confirmed by the decree, all the incidents attaching to such a transaction must necessarily follow. One of these is the liability of the buyer for the purchase money and interest. The Chancellor, therefore, erred in discriminating between the right of the cestui que trust to the value of the hire of the slaves to the date of their freedom, and from that period to the interest on the sum at which they were sold. If the title is held to have been in the Cokers, the trust estate could not be entitled to the value of their labor. The interest must therefore be allowed.
If in fact, as alleged in the answer, a part of the consideration of the said slaves was four mules at five hundred dollars, received by the trust estate, and of which it had the benefit, the Messrs. *139Coker would be entitled to a credit for that amount. It would not be just, or even reasonable, to require them to pay the interest on the price of the slaves (for the benefit of the parties now alone interested in the trust), and allow them to enjoy the past and future profit of the property thus substituted. The Chancellor, however, in his decree, does not express his judgment as to the fact, and we are not, therefore, prepared to apply the equitable principle expressed. An opportunity must therefore be allowed the Messrs. Coker to introduce testimony on the point, with full right to the plaintiff to controvert it.
The Circuit decree is affirmed, except as it is changed or modified by this opinion.
It is ordered and adjudged that the case be remanded to the Circuit Court for the County of Darlington, that the said Court may direct an account to be taken of the several amounts paid by the said C. Coker & Brother, for the plantation described in the pleadings as purchased from S. Parrott, including the first or any other payment made by the said J. M. Davis, with funds furnished by them, and the interest due on the respective payments. That a sale of the said premises be made, under the order and direction of the said Court, and the amount so found due to the said C. Coker & Brother be first paid to them from the proceeds, and the balance of the proceeds (if any) to be held subject to the. further order of the said Court. That the said Court do also direct an account to be taken of the interest on the purchase money of said slaves so sold, to wit, the sum of §2,600, from February 8, 1861, with interest from the end of each year on the interest of that year. That this being ascertained, the said C. Coker & Brother be decreed to pay the same to the said plaintiff, or to'the said Jane F. Davis, on her receipt, and that they further pay her annually, on her receipt, the interest on the said purchase money, from the day to which the account may be brought down, during the joint lives of herself and husband, J. M. Davis.
Should the said Jane H. Davis die before her said husband, then the said Charles A. Davis, if living, is to be at liberty to apply to the Circuit Court, under this bill, for the -payment by the said C. Coker & Brother of whatever proportion of interest on the price of the said slaves he may be entitled to by the terms of the said deed.
The Circuit Court will, also, by its order, enquire and ascertain whether four or any other number of mules were received in part payment of the -sale of Charlotte and children, and at what price, *140and if the trust estate got the benefit of the same. In the event of a conclusion in favor of the said C. Coker & Brother, in these particulars, it will direct that they have a credit for the sum so found, with interest from the day of the sale, on the amounts herein decreed to be paid to the said plaintiff, or the said Jane F. Davis.
Decree modified.
Willard, A. J., and Wright, A. J., concurred.u Sic,” in brief: “ Truth,” it it presumed, was the word u¿ed.