[Stelle v. Carroll.]

The claim for dower in lot No. 19, seems to have been abandoned, as no evidence in relation to it is contained in the record. As respects the other three lots, it appears that Pontius D. Stelle was seised of them in fee, during the coverture of the demandant; and being so seised, by deeds duly executed and recorded, mortgaged them in fee to a certain Peter Miller. The deeds were acknowledged by the demandant, on privy examination, according to the act of assembly of Maryland; which was in force when congress assumed jurisdiction over the District of Columbia.

Lots No. 16 and 17 had been encumbered by Stelle, by a previous mortgage, to a certain William Turnicliffe; and after these several mortgages had been made, Stelle executed a deed to Miller, dated January 28th, 1811, duly acknowledged and recorded; in which, after reciting that he had mortgaged lots No. 16 and 17, to Turnicliffe, to secure the payment of four thousand dollars, the balance of which had been paid by Miller, and from which the said Stelle was wholly released and exonerated; and reciting also, that Miller had advanced to Stelle several large sums of money; to secure which, Stelle had conveyed to him lot No. 18, with a deed of defeasance from Miller to Stelle; which sums of money the said Stelle having failed to pay, the conveyance of this lot had become absolute and unconditional; and that the said Stelle was desirous of more fully conveying and assuring these lots to Miller, he, the said Stelle, in consideration of the premises, and for and in consideration of the sum of eight hundred and ninety-two dollars and ninety-eight cents, paid him by the said Miller, the receipt of which he thereby acknowledged, did "give, grant, bargain, sell, alien, release, and confirm" these three lots to the said Peter Miller, his heirs and assigns. The deed contained a covenant of general warranty, "excepting the liens beforementioned." The demandant did not join in, nor acknowledge this deed. Stelle died in 1828; and was out of possession of these lots for some time before his death. The defendant, Carroll, claims under Peter Miller.

The case has been fully argued, and many decisions in different state courts have been cited and relied on, in the argument. It is, however, unnecessary to review and compare them; because the question must depend on the laws of Maryland as they stood at the time that congress assumed jurisdiction over the District of Columbia; and the decisions referred to in the argument, although made by tribunals entitled to high respect, yet cannot be received as evi

[Stelle v. Carroll.]

dence of the law, in the case before us: since it is well known, that in the states where these decisions have been made, the rules of the common law, in relation to dower, have been modified by a course of judicial decision; and the strictness of the rule which excluded the widow from dower, in an equitable interest, has been, in some degree, relaxed. But the doctrines of the common law upon this subject, (although since altered by act of assembly,) were still the law of Maryland when the United States assumed jurisdiction over this District; and the act of congress, of February 27th, 1801, which provides for its government, declares that the laws of Maryland, ast they then existed, should continue and be in force in that part of the District which was ceded by that state.

It is not necessary to refer to adjudged cases, for the purpose of proving, that, according to the principles of the common law, a widow is not dow ble 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. In this case, the mortgages were made during the coverture; but the mortgage deeds were acknowledged by the wife, upon privy examinations; and these acknowledgments, under the acts of assembly of Maryland, of 1715, ch. 47, and 1766, ch. 14, which are in force in this District, debarred her, of 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 his wife had no right of dower in this equitable interest, the deed of Stelle to Miller, of January 28th, 1811, abovementioned, conveyed to Miller the whole interest which had remained in Stelle. It was unnecessary for the wife to join in, or to acknowledge this deed; for as she had no right of dower in the equity of redemption, she had no interest to relinquish, when her husband conveyed it to Miller.

The recitals herein beforementioned in the deed of January 28th, 1811, have been much relied on, in the argument for the plaintiff in error; and it is insisted that, according to the facts there stated, the mortgage to Turnicliffe had been paid off by Miller; and that as it does not appear in the record, that it had been assigned to Miller, the payments made by him, as recited in the deed abovementioned, were a satisfaction of the mortgage, and restored to Stelle the legal estate; and consequently revived the right of dower in his wife, in lots No. 16 and 17, which had been mortgaged to Turnicliffe. But it must be remembered, that Miller held a mortgage to himself

[Stelle v. Carroll.]

for these lots, junior to that of Turnicliffe; and that the payments made by him, to discharge a prior incumbrance, would not enure to the benefit of Stelle; but that Miller had a right to hold on to the legal estate conveyed to him by his mortgage deed, to secure the payments he had made to Turnicliffe; and Stelle was not entitled to be restored to his legal estate in these lands, until the payments to Turnicliffe were satisfied, as well as the money due to Miller on the mortgage to himself. Besides, if these payments to Miller could be regarded as an extinguishment of the incumbrance created by the mortgage to Turnicliffe, yet the mortgage of the same lots to Miller was outstanding and unsatisfied. The interest of Stelle, therefore, even in that case, could be nothing more than an equity of redemption; and the satisfaction of Turnicliffe's mortgage by Stelle himself, would not have restored to the demandant the right of dower, of which she had debarred herself, by acknowledging the deeds to Miller, herein beforementioned. The conveyance of the equity of redemption to Miller, for a valuable consideration, united in him the entire legal and equitable interests; and this conveyance cannot, upon any principle of law or justice, give a right of dower in these lots to the wife of Stelle.

We think the instruction given by the circuit court was right; and the judgment must therefore be affirmed.

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 now here adjudged and ordered by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs.

ADAMS, CUNNINGHAM AND COMPANY V. CALVIN JOnes.

Where a case is certified from a circuit court of the United States, the judges of the circuit court having differed in opinion upon questions of law which arose on the trial of the cause, the Supreme Court cannot be called upon to express an opinion on the whole facts of the case; instead of upon particular points of law, growing out of the same.

Upon a letter of guaranty addressed to a particular person, or to persons generally, for a future credit to be given to a party in whose favour the guaranty is drawn; to charge the guarantor; notice is necessarily to be given to him, that the person giving the credit has accepted or acted upon the guaranty, and has given credit on the faith of it. This is not an open question in this Court, after the decisions which have been made in Russell v. Clarke, 7 Cranch, 69; 2 Cond. Rep. 417; Edmondston v. Drake, 5 Peters, 624; Douglass v. Reynolds, 7 Peters, 113; and Lee v. Dick, 10 Peters, 482.

THIS case came before the Court on a certificate of division of opinion of the judges of the circuit court for the district of West Ten

nessee.

The defendant, Calvin Jones, was attached by a writ of capias ad respondendum, issued on the 22d May, 1835, to answer Adams, Cunningham and Company; they claiming from him the sum of fifteen hundred and twenty five dollars, for goods furnished to Miss Betsey Miller, under the following letter of guaranty.

Mr. WILLIAM A. WILLIAMS:

SIR, On this sheet you have the list of articles wanted for Miss Betsey Miller's millinery establishment, which you were so very good as to offer to purchase for her. I will be security for the payment, either to you, or the merchants in New York, of whom you may purchase, and you may leave this in their hands, or otherwise, as may be proper. I hope, to your favour and view, will be added all possible favour by the merchants, to the young lady, in quality and prices of goods, as I have no doubt she merits as much, by her late knowledge of her business, industry, and pure conduct and principles, as any whatever. CALVIN JONES.

Mr. Williams, the person named in the guaranty, purchased the articles, according to the list furnished, from the plaintiffs, who were

[Adams v. Jones.]

merchants of New York, on the 28th of October, 1832. The goods were furnished on the faith of the guaranty, which was left with the plaintiffs.

During the progress of the cause, and whilst the same was before the jury, it occurred as a question, "whether the plaintiffs were bound to give notice to the defendant, that they had accepted or acted upon the guaranty, and given credit on the faith of it." Upon which question, the opinions of the judges were opposed: whereupon, on motion of the plaintiffs, by their attorney, that the point on which the disagreement hath happened, may be stated, under the direction of the judges, and certified under the seal of the court, to the Supreme Court, to be finally decided: it was ordered, that a statement of the pleadings, and a statement of facts, which was made under the direction of the judges, be certified, according to the re quest of the plaintiffs, and the law in that case made and provided.

The case was submitted to the Court, on printed arguments, by Mr. Fogg for the plaintiffs; and Mr. Yerger for the defendant.

Mr. Fogg for the plaintiff.

The counsel for the plaintiffs admits that the decisions of the Supreme Court of the United States have established, "that a party giving a letter of guaranty, has a right to know whether it is accepted, and whether the person to whom it is addressed, means to give credit on the footing of it or not;" and hence notice that it is accepted and relied upon, must be given in a reasonable time, to charge him who makes the guaranty.

This is undoubtedly the rule when the contract of the guarantor is prospective, and intends to attach to future transactions. Until the other party assents to and accepts the guaranty, it is a mere proposition of one party, to which, if the other assents, he must give notice of the fact to the guarantor; so that he may regulate his course of conduct and his exercise of vigilance in regard to the party in whose favour it is given.

The contract sued upon in this case does not fall within the foregoing principles. It was not a prospective promise to Adams, Cunningham & Co., intended to operate upon future transactions, and to protect credits extended to Miss Miller, after the period it came to their hands. William A. Williams, to whom the letter was addressed, was appointed the agent of Miss Miller to purchase the