(dissenting.) By the record it appears that John H. Bewley, being in a state of utter insolvency, on the 12th day of October, 1878, made and delivered his judgment bond to Samuel Hutchison, Jr., the appellant, and Samuel Roberts and Daniel Palmatary, the appellees, in the penal sum of $3,900, with condition for the payment to them, their executors, administrators, and assigns, of the real debt of $1,950, with interest thereon, on or before the 1st day of May, 1879. In the body of the condition is this expression : “ Note. This bond is given as further security as my indorser on certain judgment bonds, and for the mutual benefit of each party named in the within obligation, according to liability for me as surety.” By both bill and answer it appears that at the date of the said bond the appellant was surety for the obligor in a judgment bond to Tilghman Foxwell for the real debt of $1,000; that the appellee Samuel Roberts was surety in a judgment bond to Charles Numbers for the real debt of $529.45; and that the appellee Daniel Palmatary was his surety in judgment bond to William Sharp for the real debt of $742; and it is admitted on both sides that the aforesaid bond by the obligor to the said obligees *489was made for the purpose of indemnity against said bonds, and for the mutual benefit of the obligees, respectively, according to their several and respective liabilities under them. But for the fact of the expression aforesaid in the condition of the bond to the obligees it would be very difficult to ascertain why it should have been given at all. That writing makes it plain that the object aimed at by the obligor was to make a liability to the sureties that should place them upon a perfect equality with respect to any payment under said bond. The sureties were equally meritorious, and the principal intended to be equitable towards them by establishing equality, which is equity. The true interpretation of the interpolated note is, as treated by both parties before the court, that the proceeds of the bonds should be shared equally by the obligees, according to a pro rata consideration of the respective liabilities they were respectively under by virtue of their respective aforesaid suretyships for the obligor. The sale of the obligor’s property, real and personal, not long after the execution of the said bond—which was entered in the Superior Court of Kent county, where all the property of the defendant was, on the 14th day of October of the same year of 1878—developed the fact that the proceeds were inadequate to the payment of liens prior to that of the judgment entered on said indemnity bond. Said judgment was therefore of no value, the obligor’s insolvency being hopeless. One of the parcels of John H. Bewley’s real estate was a farm in Duck Creek Hundred. At the sale by the sheriff it was bid off by parties who declined to comply with the terms of sale. It therefore remained unsold. After the return of the sheriff to the October term, 1878, of the Superior Court, of the sale made by him under his process, (the parcel aforesaid remaining unsold,) another writ was issued, returnable to the April term, 1879, of said court, for the sale of the unsold parcel; and at the sale thereof it was bid off by Mary J. Bewley, the wife of John H. Bewley, and the writ was returned, and confirmation of the sale made accordingly. It appears by proof in the case, *490that she bought in the parcel for the sum of $8,000, and the property was afterwards, in 1881, sold by her and her husband for the sum of $16,000 to William Bradley, by which there was realized as profit on the purchase the sum of $6,800. Those facts appear by the testimony, or are matters of record. By the testimony, upon cross-examination, of John H. Bewley, who was examined by the appellees in the suit below, it appears that he had a conversation with his wife shortly after the receipt of the aforesaid sum of $6,800 from Bradley,—he says, at least a month prior to the 12th of December, 1880,—which was as follows : “ Shortly after my wife had received the six thousand eight hundred dollars from William Bradley, she and I had a conversation relative to the said assignments, in which I told her that Samuel Roberts, Daniel Palmatary, and Samuel Hutchison were sureties for me on certain paper, and that I had given them together a collateral bond (thinking it would save them) on my lands. I further told her that the collateral bond which I had given to them, and which had been entered against my property, was not reached out of the proceeds of my property, and that as Mr. Roberts and Mr. Palmatary were under no obligation to me in any business transaction, but had gone security for me purely out of friendship, I did not want them to lose anything by me, and I would like her to take a part of the money that she had received from Mr. Bradley and pay Mr. Roberts and Mr. Palmatary, and releive them from any loss by me; and I said to her that if she would do this Mr. Roberts and Mr. Palmtary would transfer to her all the interest they had in the debts against me, and that it would place her in their position, and relieve them from any loss by me; which she agreed should be done, and authorized me as her agent to attend to the matter. I further said to my wife that in regard to Samuel Hutchison I had transferred to him a judgment on the docket at Dover which I had against his brother, John, which amounted at the time, with interest, to between eight and nine hundred dollars, and, according to my calculation, left me indebted to him about $225 which matter I could attend to myself.”
*491With the foregoing facts before us, and the testimony in the-case, we are able to fully understand this controversy. The appellant contends that the payments to his co-obligees in the indemnity bond should be held to be for the mutual benefit of all the obligees? to be divided between them pro rata according to their respective-liabilities as sureties as aforesaid of John H. Bewley, tendering himself ready to throw the amount received by him in money or by assignment from said Bradley in which the payments to them respectively, thus making the fund to be distributed to be the aggregate of what he and they received on account of their aforesaid suretyship. But his co-obligees resist this proposal, or mode of adjustment of interests, contending that ho payment as such was made to them at all as such sureties, but that there was a sale by them of" their interests, respectively, under said indemnity bond, and a purchase thereof by Mary J. Bewley, The indisputable facts of this case preclude, in my opinion, any other conclusion than that payment was the character of the' transaction, although the futile form was pursued of taking an assignment of the aforesaid shares of the appellees. The fact of John H. Bewley’s utter insolvency at the time of the transaction, and the corresponding fact of the entire worthlessness, therefore, of the interests attempted to be transferred^are evidence, to my mind, sufficient to make such transaction payment for the supposed separate interests of the appellees. And I am strengthened in this belief by the additional fact that, so far as-appears, no effort "has ever been made by John H. Bewley to pay to the appellant the sum admitted by the former to have been due to-him at the time of the transaction with his co-sureties. Mr. Bewley states, in his testimony before quoted, what he told his wife he would do; but it does not appear that he ever made any effort to do it. All, therefore, which was not received by the appellee from him, by the assignment of the judgment of Bewley against John H. Hutchison, or by actual money, is yet due and unpaid.' Again, supposing a purchase merely of the alleged separate interests of the appellees intended, what did Mrs. Bewley acquire ? If she had not *492■been John H. Bewley’s wife, nor under disability, she would have acquired the same right precisely, and nothing more, that each of the appellees had,—the right to share pro rata with his companions in any sum that should be realized under the judgment. But for ■the clause in the body of the condition of the bond given by Bewley to his sureties, the obligees would have been absolutely equal •owners of the bond, and any sum received on account of it by one nr more of them would have inured for the equal benefit of all the rest. If by that clause it had been provided in terms even that a certain part of the real debt should be for the use of one, another part for another, and the balance for the third, still the obligees would have been joint owners of the bond, and not owners of separate parts of the real debt; for, if owners respectively of separate parts, the bond would still belong to all, and proceedings for collection would have to be in the name of all. There cannot be joint .and several obligees in a bond, as there may be of obligors. 7 Bac. Abr. tit. “ Bond,” D, 3. A bond to two or more persons is a joint bond; and, were it not so, an obligor might be harassed by a multitude of suits. When money is to be collected upon it, proceedings must be in the name of all the obligees; and, if one of .them gets possession of such money, he has no right to apply it to his interest in the bond, but must account to his co-obligees for ■their part of it; in other words, he must divide 'equally with them, if they have an equal interest, (which they have, prima facia,) or pro rata if their interests inter sese are not of the same amount. .But no inequality can be a legal one. The character of the instrument forbids any other idea than that the bond is the ordinary one of equal interests. Such securities are somewhat similar to joint tenancy in real estate. They are subject to survivorship, which could not be if there were any several ownership in them. If a bond could be made to two or more persons, with condition to pay to one a certain portion of the debt secured, and to the other or others ■certain other portions, making together the whole, no action could be ■taken, as I have said, upon it, but in the joint names of all, or of *493the survivors where an obligee or obligees is dead. There may be, as between the obligees several interests in the debt secured by the condition of the bond, which would prevent the operation of the jus aeerescendi otherwise applicable to it, but would have no effect to entitle an obligee to proceed on such bond in his own name. Hi& separate interest would not be assignable at law, of course. A court of equity, however, would recognize an assignment of it; but this would put the assignee in the shoes of the assignor with respect only to the interest assigned, and would not confer upon him any right to proceed at law for his own benefit.
This leads to the question : What is the true construction to be given to the terms of the note in the indemnity bond ? The obligees were not, it is true, co-sureties; and therefore there is no equity between them of equality of benefit, or of obligation to contribute in the event of enforced liability in the case of part of them. In that aspect, if Bewley had, instead of the joint bond to the three, paid into the hands of one of them, for example, money to enable him to discharge his liability as surety for him, neither of the others would have had any right to call upon such surety for any part of it to relieve himself, which he would have had the right to do if they had been co-sureties; but by the giving by Bewley of the joint bond and the acceptance of it by the sureties, they became, in the view I take of the case, each of them entitled to recive his pro rata share of any money received by either on account of it. It is, I think, very certain that such was the idea when the bond was made and delivered, the note importing (though by somewhat confused language) that the obligees were to mutually share any avails of the bond pro rata according to their several liabilities for the obligor as such as aforesaid. Now, it is not contended by the learned counsel of the appellees that a payment made by Bewley, or raised out of any property he might have had, would have been for equal benefit of all pro rata; but the contrary was conceded. We are, then, brought tq the question whether the transaction with Mrs. Bewley, or in her name, rather. *494(for her husband acted for her,) is to be regarded otherwise than as a payment on his behalf, although the mode of doing the business has the form of an assignment. What interest had Mrs. Bewley ■on the judgment on the indemnity bond after the assignment ? If the question were to be considered without reference to our statutory legislation for the benefit of married; women, clearly, none. Marriage, at common law, vests an absolute gift in the husband of all the good and chattels of his wife, and qualifiedly of all her choses in action, which latter only required to be reduced into possession to be his absolutely also. As the money of a wife is that of her husband, it follows that whatever she buys with it is to be taken as a purchase with his money, by his consent, and is his. In other words, she is considered as acting for him as his agent in the transaction of purchase. There are a few circumstances which constitute exceptions to this rule, but it is not essential to consider them in this inquiry. Leaving them out, the rule of the common law is uniform, as I have stated. In equity a woman may have a separate property in real or personal estate, acquired by purchase, (actual or technical,) for there can be no such estate by descent. If she have money of her own, but not her separate property in ' equitable consideration, and by personalty with it, the movable things become his absolutely, without- any act of his ; and choses in action become his, so that he may release them or reduce them into possession. If the money were her separate property, there is no qualified gift of such choses, and a court of equity will restrain him, upon her application, from his attempt to make them his. It does not appear by the evidence in the case that at the time of the purchase by Mrs. Bewley of her husband’s farm at sheriff’s sale she had any property or means at all. A fact so important would, no ■doubt, have been shown if it existed. The purchase, therefore, was a speculation purely / and a goood one it turned out to be. Until the farm was paid for and conveyed to her by the sheriff, for anything that appears, she had no means whatever. She made payment by negotiating a mortgage loan with the Kent County Mutual In*495surance Company. There was therefore no property belonging to her at the time she bid off the land, either legal or equitable. What she acquired by the purchase at sheriff’s sale could not have been anything but legal property, for there was no trust, express, or implied, affecting it, and no necessity for any under the law passed by the legislature in 1873, (Rev. Code, p. 479.) The jurisdiction of a court of equity to decree a trust for the benefit of a married woman, where none is actually created, is to carry into effect a disposition of property by a grantor for her separate use so as to prevent her husband from interfering with it, and also to protect it, if personalty,' from the rule of law that makes it his exclusively. There being no necessity, as before said, for equity interference in case of property acquired by married women since the act of 1873, such jurisdiction would, of course, not be exercised, according to the well-known rule that equity will not interfere where the law gives adequate relief. It is very difficult to conceive of any case of a married woman’s property since the passage of that statute where an equity •court could be called upon to protect it.
But, as I have before said, the ownership of a married woman, since the act, is legal, and not equitable. She is, with respect to it, independent of her husband. The statutory provisions are explicit •upon that point. Her husband cannot dispose of it, nor is it liable for his debts. She may deal with it as she pleases, except that he shall have his curtesy in the real estate, and the personalty shall be his as her administrator, if she have not disposed of it at her death by will. But suppose she should, as in this case, purchase with her money a debt against her husband, could this be kept afoot by an assignment of it to her ? That is a question necessary to be passed upon in view of a consequence to be developed in case a negative answer is proper. Now, it is an elementary principle that a wife cannot be her husband’s creditor at the common law. They are one by it, and her money is his money absolutely, and her dioses are as absolutely his, if he reduce them into possession in his life-time. The act of marriage operates a *496gift to him of her personal property, subject to his diligence in the case of choses in action. Were it not for the act of April, 1873, there could be no pretense that the purchase of the rights of Palmatary and Roberts in the indemnity bond would not be an extinction of those interests. They could not be held by Mrs. Bewley as against her husband any more than a bond of his given to her dum_ sola could be held against him after the marriage, unless such bond was separate property,—that is, the fruit of separate limitation or gift. By the law before the statute that would not keep it alive; but, as the court of chancery has power in the case of separate estates to decree a trust, the husband, would be held to be a trustee of the wife of the money secured by the bond, but the bond itself would be discharged at law. It would be the fact of separate property in the wife that would evoke the aid of equity to prevent the operation of payment by the purchase. If the money which made the purchase was not separate property in equity, that jurisdiction could not be successfully appealed to by the wife for protection against the rule of the common law. The question then arises whether the assignments in this case are secured, by the statute against,the common-law rule? The wife, by the law in question, is a quasi feme sole as to holding and dealing with any property she has, whether acquired before marriage or since received “by gift, grant, devise, or bequest, from any person other than her husband.” In the language of the statute, it is “ her sole and separate property.” As she is thus, as it were, emancipated from her husband, and made capable of holding and disposing of real and personal property independent of him, she must be treated (in a proper view to take of the matter) as entirely fitted in the contemplation of the law to take care of herself and her property, the same as single women are. It follows from this that, while the husband may not interfere in any way with his wife’s property without her consent, as no stranger may with another’s property without that person’s consent, yet there is no prohibition against her giving her property to him if, uninfluenced improperly, she choose so to do. In this case *497Mr. Bewley desired to make his bond of indemnity valuable to two of his sureties, Palmatary and Roberts. It had no value at its execution, and the act of making it was futile as to any responsibility of himself pecuniarily. He therefore applied to his wife to advance the necessary money to enable these sureties to discharge their liability upon the bonds where they were severally responsible for him. She consented, and the transaction was done as before stated, and the assignment was made. What effect had this ? These assignments are legal instruments, and not equitable, for they are made under the statute about assignments, and protect themselves without any aid from equity. They became Mrs. Bewley’s separate property at law. But they were and are entirely worthless as investments, and are not likely to be otherwise. Can ' the advancement of the money, therefore, to her husband to enable him to furnish money to those sureties to enable them to pay off the respective bonds to which they were sureties be looked upon otherwise than as a mere gift in fact to him ? There can be no question of her right to make it, if that is the effect of the transaction, as it was her voluntary act to enable her husband to relieve two of his sureties from their embarrassment as mere volunteers, on his account. I do not doubt the right of a married woman, having property of her own, to purchase a lien against her husband’s property, and hold it as such. In that respect she stands exactly where she did in equity before the statute, the object of which seems to have been to give her a legal status with respect to her own property, such as she had before in equity. But as there was no pretense in equity that a wife could acquire and enforce her husband’s personal debt, (bond, note, or other personal security,) which would be extinguished at law upon her acquisition, that court could only hold him as. trustee for her as to the money secured by the instrument.
Now, at law, a wife may have a separate property in goods, chattels, and choses in action, and the husband cannot interfere with them; but does this extend to enabling a wife to buy in her husband’s liabilities, and hold them against him as any other person *498can ? I think not. When, in her new capacity, she undertakes to do an act, she must be held, like any one mi juris, (for she is such by the law,) to contemplate the effect of her qct, and to know that, while her husband may not control the disposition of her property by her, she may give it to him, if she see proper, and this no matter what the form of a transaction may be, unless it can be supposed (which cannot be in this case) that it was adopted in contemplation of some value resulting from the transaction itself. While there can be no objection to a wife holding a lien against her husband’s property, if he have any at any time, but as courts of equity with their broad and beneficent jurisdiction in the cases of married women have not undertaken to keep alive a mere personal security against the husband, but hold him a trustee for the money secured by him, it is not reasonable to conclude that the act of 1873 was intended to go further, and give the wife control, as his mere creditor, of his personal liberty, as she would have to some extent by process of copias under our law, if she complied with its provisions. I think it much more reasonable to construe this statute as not changing the common law so far as the personal liabilities of the husband are concerned,—that is, upon notes, bonds, and other personal security,—but to treat a purchase of such as an intended gift to him. I cannot think that the legislature ought to be held as intending to place the husband in the hands of his wife by the purchase by her of any of his liabilities, but to limit her power, as in equity, to acquisition of securities by him, (mortgages, judgments, etc.) Here, if the judgment on the indemnity bond could be considered as of any value at the time of the assignment, or likely _ ever to become such, it might well be that the object of -the purchase was investment; but, as it was not, and the professed object was the relief of certain sureties, I think the transaction ought to be treated as a gift of money by Mrs. Bewley to her. husband for that purpose. How the money was paid to them, out of. what fund, and by whom, I think may be disregarded entirely, as may also the fact of the as*499signment. To my mind the testimony of Bewley himself is in support of this view,—that the technical purchase of the interests of Palmatary and Roberts was nothing more nor less than an advance of money made by his wife to enable him to put those of his sureties in a situation enabling them to pay off the bonds on which they were bound for him. His proposition to her evidently, in my mind, was to consent to the application of enough of the fruits of her speculation to relieve thosé sureties; he undertaking to satisfy the other (the appellant) of the amount still necessary to relieve him. But for the fact of assignment by Palmatary and Roberts there would be no sign of purchase whatever. As there was nothing of the least value to assign well known to all parties, I cannot but view these instruments, or indorsements of record, as mere forms adopted to obscure the real transaction. Having dome to this conclusion, I am of opinion that the several amounts, or their equivalents, received by the obligees in the indemnity, together with interest on them respectively from the time of their respective receipt, should be added together, and the sum of the whole be divided among those parties pro rata according to their several liabilities in the surety bonds respectively; and that the excess over the respective shares thereof of the said Palmatary and Roberts shall be paid by them, respectively, to the appellant, to equalize him with them■ and that the costs be divided equally between the parties, each paying one-third of them.