The opinion of the Court was delivered by
Moses, C. J.The opinion of the Referee, as embodied in his clear and able report, so fully expresses the views and conclusions of the Court on the principal question involved in the case that it could well be adopted as its judgment without the addition of a single word.
The rule which prevailed in this State to the adoption of the Constitution of 1868, in regard to the powers of a married woman over her separate estate, has been too long recognized to admit of controversy. If any difficulty ever attends its application, it arises from the doubtful language of the settlement, and not from any want of certainty in the principle by which it is to be regulated when its terms, by proper construction, are made clear. While in England a femme covert may, as to her separate property, exercise any right of disposition except when restrained by the deed creating it, in South Carolina she is deprived of all power over it except such as she is permitted to assert by the very terms o.f the instrument.
What change has been effected in these particulars by the Constitution, it is not necessary now to consider.
Without an extension of. the authority allowed and reserved by the deed before us to purposes not only at variance with the design, but actually destructive of the intention which the makers of it had in view, it is impossible to refer the act of Miss Clifford, the trustee, even with the consent of Clifford and his wife, to the powers expressed in the deed, or which, by the most forced con*199struction, could be implied from any of its terms. All the powers conferred were either for the preservation of the property conveyed, or its conversion into other property, subject to the same uses and limitations. The power which was exercised was to encumber and fetter it with burthens, which would, most probably, in the end entirely divest it from the trusts which were intended for its protection. The transaction itself discloses its own purposes. It was not to sell the estate with a view to reinvest its proceeds or exchange it for other property, to be affected by the conditions of' the settlement, but it was to hamper it with a lien for the benefit of the husband as purchaser of real estate, of which the legal title was to vest, not in the trustee for the uses of the trust, but in him. Nor can the transaction be sustained as a covenant by Mrs. Clifford, under the powers secured to her by the settlement, to pay the first and second instalments of the said bond of her husband out of her separate estate. Her disability prevents any such liability at common law, and where, notwithstanding her coverture, she is permitted to exercise the rights and powers arid to be affected by the liabilities of a femme sole, it must be in conformity with the right ■conferred by some, written instrument or allowed by statute. In either case, to avail, the act must be executed in strict compliance with all the requisitions as to form and manner prescribed by the authority which permits it.
s_„. The interest, however, of Clifford in the trust property conveyed by the deed must be held' liable to the payment of the bond and mortgage executed by Miss Clifford, the trustee,-with his consent and that of his wife. It is no objection, as was urged by the counsel "Tor the appellants, that this would destroy the scheme of the settlement, prejudice the interests of the wife and impair her equities. Whatever consequences follow from the enforcement of the settlement must be attributed to those who consented to be bound by it. It was in the power of Mrs. Clifford to suggest and dictate the conditions on which, after marriage, she was to hold and enjoy her own property, and she must abide by her act. The same objection was interposed in Rivers vs. Thayer, (7 Rich. Eq., 168,) but the Court said: “It must deal with such difficulties as they present themselves, and according to the means at their disposal.”
While it will protect to the fullest extent all the equities of the wife, it’will not debar the creditor from subjecting the interests of the husband to the payment of his debt. The caséis in a forum *200which can so mould its judgment that, while the wife may enjoy the full protection of her settlement, it shall not shield the interest of the husband from a liability to meet the just demands of his creditors, y
It is objected, too, that the plaintiffs, in seeking relief through their complaint by a foreclosure of the mortgage, executed by the trustee, Amelia Clifford, cannot avail themselves of the lien created by it to subject the interest of the husband Clifford in the trust property to the satisfaction of the debt due by him to Mrs. Creighton; that such interest can only be reached by a creditor’s bill framed with an aspect to that particular end. But the rights of the general creditors of Clifford (if any such there be) must be subordinate to the equity of Mrs. Creighton to have whatever interest Clifford, the husband, is entitled to in the pi’operty mortgaged to her at his request and for his use and benefit, separated from that of’the wife and applied to the satisfaction and removal of the lien thus created. The i’elief so extended comports with the justice and equity of the transaction between the parties by requiring that whatever obligation it imposed should be met by reaching the interest of the husband, for whose benefit the mortgage debt was contracted.
This Court, however, does not feel itself competent to adjust the equity of the wife in the mortgaged premises without a better knowledge of the actual condition of the pi-operty than has been afforded. It must, therefore, seek for more light through the aid of a Referee.
It is ordered that so much of the decree of the Circuit Court as directs a foreclosure of the mortgage of the trustee, Amelia Clifford, established in the case, be reversed.
That on its appearing by the sale ordered in said decree of the property mortgaged by the said L. C. Clifford to the trustees of the said Mrs. Ann Creighton that it has not brought enough to pay in full the amount due on the first and second instalments of the bond it was given to secure, the ease shall be remitted to the said Samuel Lord, Esq., the Referee. * He will thereupon report a scheme or mode by which the interest of the said L. C. Clifford in the property conveyed by the said marriage settlement should be appropriated to the payment of any balance remaining due on said instalments after such sale, with the least possible prejudice to the interests of the said Mrs. Caroline M. Clifford therein.
*201The report of the Referee to be made to the Circuit Court, to which the case is remanded for any further orders which may be necessary to carry out the views of the Court as herein declared.
Wright, A. J., and Willard, A. J., concurred.