Open main menu

Page:United States Reports, Volume 2.djvu/209

This page needs to be proofread.


1 Susana Coun or Pemyjloanio. ao; J quently determined in the Supreme Court, that the ]udges will, 1793. _ to elfeétuate the intention of the parties, coniidcr that as exe- t,-,·`.;i cuted, which ought to have been done. This is alfo a rule in thc Court of Chancery in England. Why may not her articles of agreement, or deed, of 1774, be coniidered as a covenant, to iiand feized of her real eiiate for the ufes therein fpecially mentioned, and alfo to the ufe of her will, or appointment c Marriage, which tends to join the blood, is one of the confide- rations held fuihcient to validate fuch a conveyance. Why ihouid {he not have a right in Equity, of difpoiing of herlands as incident to her ownerihip; for, {he is to be taken. as to the execution of this power, to be a feme fole P If the- intention of the parties cannot take place by this deed_and appointment, in the common way of their operation, they may be conlidered good in fome other way: The fubllance, and not the form, ought principally to be regarded. Wh may not this cafe be confi- dered, under all cireumltances, ol, equal operation as a deed ex-. ccuted by the hulband and wife, in her life time, to the ufe of the perfons named in the_ appointment ? The Court of Chan-. cery will fupply forms, where there is a meritorious conlidera- tion ; it has gone as great lengths as is delired in the prefent, cafe ; and I am glad to find the laft cited cafe determined there to be in point, “ that there is no difference between a legal and equitable intereit." Amoln- 565. RQPHI ·v. Dawdin, or- Hardin, by Ld. Cbancollar Camden, in r 769. The fpirit of the cafe of l%·ig}>t ·v. Ld. Cadogan, rt al. 6 Brown. Par. Co. 156. alfo implies this do£trine._ From all the circumltances of this cafe, taken together, I am of. opinion, that the appointment of Margaret Hzndnyon, paffes t(§us"eliate in Equity, and that judgment be given for the' defen- ant._ ‘ ` SHIPPEN, _71_dl1b:. Iconcur in the opinion delivered by the Carter jusrxcs. I eonfefs, however, that I had conliderable doubts when the cafe was argued ; but, .Po·w:ll’: new edition of Waod’r_, Conveyance, 467. 8, has removed them. Powell, the editor, {lates the doétrine to be now fettled in England, ac-. oording to the cafe of. Riopm ·v. Hawdin. lf fo fettled there,_ ‘ it certainly ihould be fo fettled here, _ where the alienation of, real eitate is much more favored. YEAT1-ZS, _‘7z_¢i¢¢·. If we fat merely_as. a Court-of Law, I - fhould be clear? in favorof the plaimitii But, the Chancery__ rnaxjm, to con ider what ought to be done, as aétually done, appljes firongly to our judicial lituation, having no Court of Qi Equity to enforce the performance of contra£ts._ As to the right of a feme covert, under articles of agreements to devtfe, Ld. Kenyon, {aye, ¢¢ what was once doubted is no lon-. {H f¤·” The principles of Rgxpen ·v. Hatvdin, are in fome de- C c2_ grce_