[Clarko et al. v. White.]

latter would not be decreed to old as trustee for the creditors of William G. W. White, he having paid the consideration; but then the property would be treated and applied as a trust fund, and be so declared in equity, on the sole ground that the transaction was fraudulent in fact. No case is before us fairly to raise such a question, or to justify speculations affecting injuriously a title valid at law, and prima facie good in equity; when those most interested in it are not before the Court.

There is another reason why the appellants cannot challenge the validity of the title made by Smith to James L. White; it is this: they made the composition with a full and perfect knowledge of the facts attending the conveyance, and subsequent improvements of the property; then they continued silent, and took the full benefit of their contract, and cannot now be heard to speak. He who purchases unsound property, with knowledge of the unsoundness at the time, cannot maintain an action. So if one compounds a debt, or makes any other contract, with a full knowledge of all the facts, acting at arm's length upon his judgment, and fails to guard against loss; he must abide the consequences. Neither fraud nor mistake can be imputed to such an agreement.

Eighth, it is contended:

The inequality alone in his various compositions with his creditors, (all the other circumstances of fraud being out of the question,) is a fraud, per se, both at law and equity; and sufficient of itself either at law or equity, to vitiate and set aside each and every of the compositions, from the lowest to the highest.

If upon failure or insolvency, one creditor goes into a contract of general composition common to the others, at the same time having an underhand agreement with the debtor to receive a larger per cent., such agreement is fraudulent and void; and cannot be enforced against the debtor, or any surety to it. 1 Story, 371. The doctrine was carried so far in the court of exchequer in England, some years since, as to extend the principle to a case where the creditors made separate contracts with the debtors, but with an understanding that two shillings and sixpence in the pound was to be paid; and one of the creditors got a secret bond, fraudulently intending to induce others to enter into the composition, and the bond was relieved against. Fowett v. Gee, 3 Anstruther, 910. Although this case, and Spooner v. Whitsan, 8 Moore, 580, in the common pleas, have been adduced to the Court, as varying the general principle, on examination of

[Clarke et al. v. White.]

them, we think they proceed upon it; and the case in Anstruther presses the principle very far against the creditor: however they might be, no great stress could be laid on them by the Court; and the same may be said of Small v. Brackley, 2 Ves. 602, cited by the appellants' counsel.

The rule cutting off underhand agreements in cases of joint and general compositions, as a fraud upon the other compounding creditors, and because such agreements are subversive of sound morals and public policy, has no application to a case like the present; where each creditor acts not only for himself, but in opposition to every other creditor, all equally relying upon their vigilance to gain a priority; which, if obtained, each being entitled to have satisfaction, the payment cannot be questioned. The debtor may prefer one creditor, pay him fully, and exhaust his whole property, leaving nothing for others equally meritorious. Yet their case is not remedial: and why may not debts be partially paid in unequal amounts? If those who receive partial payments are willing to give releases, it is their own matter; and, should a third person interfere, debtor and creditor could well say to him, you are a stranger, and must stand aside.

The case of the appellee presented a fair instance of the propriety of paying some of his debts fully, and others partially. He owed bank debts, secured by the endorsements of friends, whose kindness. was the only motive to incur the liability; to relieve whom he did. pay, and ought to have paid, large sums during October and November, 1833.

The notes passed off to Clagett and Washington were transferred before maturity, and before the contract of composition took place; and of course their right was not affected by it. As to them, the decree dismissing the bill was proper; as it is in all other respects, and must be affirmed.

Mr. Justice BALDWIN dissented.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is decreed and ordered by this Court, that the decree of the said circuit court in this cause be, and the same is hereby affirmed, with costs.

BEULAH STELLE, PLAINTIFF IN ERROR V. DANIEL CARROLL, OF DUDDINGTON, DEFENDANT IN ERROR.

Dower. The doctrines of the common law, on the subject of dower, although since altered by an act of assembly of Maryland, were still the law of Maryland, when the United States assumed jurisdiction over the District of Columbia: and the act of congress of February 27th, 1801, which provides for its government, declares that the laws of Maryland, as they then existed, should continue and be in force in that part of the district which was ceded by that state. According to the principles of the common law, a widow was not dowable in her husband's equity of redemption; and if a man mortgages in fee, before marriage, and dies without redeeming the mortgage, his widow is not entitled to dower. Mortgages were made during the coverture, but the mortgage deeds were acknowledged by the wife upon privy examination; and these acknowledgments, under the acts of assembly of Maryland of 1715, ch. 47, and 1766, ch. 14, bar the right of dower in the lots thus conveyed to the mortgagee. The legal estate passed to the mortgagee; and the husband retained nothing but the equity of redemption: and as the wife had no right of dower in this equitable interest, a subsequent deed, executed by the husband, conveyed the whole of his interest in the estate, and was a bar to the claim of dower. It was not necessary for the wife to join in such a deed, as she had no right of dower in the equity of redemption, which was con. veyed by the deed.

IN error to the circuit court of the United States, for the county of Washington, in the District of Columbia.

The plaintiff in error brought an action claiming to be endowed out of certain lots, with the improvements on them, being No. 16 and No. 17, in square 728, in the city of Washington; and relied on the following circumstances, as giving her the right thereto.

On the 24th of August, 1804, George Walker and William Turnicliffe conveyed, in fee simple, to Pontius D. Stelle, lots 16 and 17, in square 728, in the city of Washington. And on the 25th of August, 1804, Pontius D. Stelle reconveyed these lots to William Turnicliffe, by way of mortgage, to secure the payment of the purchase money; but his wife did not relinquish her dower.

On the 14th day of November, 1808, Pontius D. Stelle executed to Peter Miller another deed of bargain and sale, in fee simple, of lot 18, in square 728; and Beulah Stelle, his wife, joined with him in the acknowledgment, and relinquished her dower.

On the 1st day of March, 1810, Pontius D. Stelle conveyed the VOL. XII.-2 C

[Stelle v. Carroll.]

same lots to Peter Miller, in fee simple, by way of mortgage, and Beulah Stelle, the demandant, relinquished her dower in them.

On the 28th of January, 1811, Pontius D. Stelle executed another deed, in fee simple, to Peter Miller; by which, after reciting that he had, on the 25th of August, 1804, mortgaged lots 16 and 17 to William Turnicliffe, to secure the payment of four thousand dollars, the balance of which had been, or was, secured to be paid to Turnicliffe by Miller," and from which the said Pontius D. Stelle is wholly released and exonerated;" that Miller had advanced to him (Stelle) several large sums of money, for securing the payment of which he (Stelle) had conveyed to Miller lot 18, in square 728, with a deed of defeasance from Miller to Stelle; which sums of money "Stelle having failed to pay to the said Miller, the said conveyance of lot numbered 18 to the said Miller hath become absolute and ur conditional;" and that Stelle is desirous of "more fully conveyir g and assuring the above described lots of ground to the said Peter Miller;" and for the consideration of eight hundred and ninety-two dollars and ninety-eight cents, he proceeded to convey, by bargain and sale, to the said Peter Miller, his heirs and assigns, the said lots 16, 17, and 18," and all the right, title, interest, property, claim, and demand, whether in law or equity," which he had in them; with covenants of general warranty ("except the liens abovementioned,") and for further assurances. This deed has no release of dower.

Afterward Pontius D. Stelle left the possession of the said lots, and they were sold under a decree of the court of chancery of Washington, by Zachariah Walker, trustee, and were purchased by the defendant, and the buildings on lot 16 were erected, after the deed to Peter Miller, in 1811; and not by P. D. Stelle.

The circuit court instructed the jury the plaintiff could not recover, and a verdict and judgment were rendered for the defendant, who thereupon prosecuted this writ of error.

The case was argued by the Messrs. Brent for the plaintiff, and by Mr. Bradley, and Coxe for the defendant.

The plaintiff's counsel relied on the following points for reversing the judgment.

1. The defendant, claiming under the deed of 1811, from P. D. Stelle to Peter Miller, could not deny the seisin by P. D. Stelle of the premises in question at that date.

[Stelle v. Carroll.]

2. That the mortgage to Turnicliffe was no bar to the claim for dower, because the wife did not join in it, and because the deed of 1811, from Stelle to Miller, recites the satisfaction of this mortgage.

3. That the two mortgages from Stelle and wife to Peter Miller, were absolutely satisfied and discharged, by the sale of the equity of redemption in 1811, to Peter Miller by said Stelle.

4. That, admitting the existence of outstanding mortgages, in which the demandant had joined, still such mortgages are no bar to this demand; because the said defendant does not hold under said mortgages, or any of them, but alone, under the deed of 1811.

5. That where the tenant in possession has not entered under existing mortgages, the fact of there being such outstanding mortgages is no bar to dower.

6. That the demandant did not duly and legally relinquish her dower by any deed, as alleged.

For the plaintiff, the following cases were cited, 6 John. Rep. 290; 7 John. Rep. 281; 9 John. Rep. 344; 13 Mass. 228; 4 Kent's Com. 44, 45; 2 Halstead's Rep. 408; 5 Pickering's Rep. 416, 475; 3 Wheat. 226, 227; 17 Mass. 564; 15 Mass. 278; 1 Cowan, 460.

The counsel for the defendant in error contended:

1. That Pontius D. Stelle never had an estate in lots 16 and 17; of which the demandant could be endowed.

2. That if he had such estate, yet she has relinquished her dower by the deed of the 1st of March, 1810; and if any equity remained in her, (which the defendant denies,) it was released by the deed of her husband of the 28th of January, 1811.

Cases cited: 1 Atkyn's Rep. 441, 442; 6 John. Rep. 294; 7 Greenleaf's Rep. 42, &c.

Mr. Chief Justice TANEY delivered the opinion of the Court. This is an action of dower, and was brought by the plaintiff in error against the defendant, in the circuit court for Washington county, in the District of Columbia, to recover her dower in lots No. 16, 17, 18, and 19, in square No. 728, in the city of Washington. At the trial of the case, the circuit court instructed the jury that the demandant was not entitled to recover; to which instruction, no exception was taken: and the verdict and judgment being for the defendant, the case has been brought here by the demandant, by writ of error.