The Chancellor :—
The general rule was not disputed in the argument that marriage extinguishes at law all contracts and debts previously existing between husband and wife. The effect is the same also in equity, except where some equitable considerations intervened, such as may render it proper for that reason to preserve the debt against the operation of the rule at law. But the application of the rule to the present case was resisted in argument upon substantially these grounds which I have considered separately.
First:—That the effect of marriage is not to extinguish the debt absolutely ; but that it confers on the husband the power at his election to discharge himself by some act significant of his intent to do so, as by canceling or destroying the evidence of the indebtedness, if it were a written instrument, 'or otherwise if the debt were not of such a nature as to be canceled it might be discharged by some act or course of action signifying the husband’s election to discharge it. The husband’s relation to a debt due from himself at the time of intermarriage was treated in the argument as being analogous to his power over debts or choses in action of his wife due from third persons, which become his own, not absolutely, but only upon his reducing them to possession, by some act of marital control, as by suit or assignment or release of the chose in action. One of the counsel for the complainant varied the argument so as to concede that marriage was of itself a presumptive extinguishment, requiring no [589]*589future positive act of the husband to give it this effect, but that, as the extinguishment rested upon a presumed intent of the parties, that the marriage should have that effect, the presumption of such intent might be rebutted by facts and circumstances proved, shewing, to the satisfaction of the Court, that, in the particular case, the debt was intended to remain in force notwithstanding the marriage, and was so treated by the parties.
The facts relied upon,as shewing the husband’s election, in this case, not to discharge himself by the intermarriage but to leave the debt subject to the wife’s right of survivorship, were these:—that, although the debt was contracted pending an engagement for marriage, a written security for it was taken ; which was needless if not to continue under the marriage ; also that it was made payable at a time considerably to the future ; and that the husband during all the time of the marriage suffered the note to remain in the wife’s possession, as before the. marriage, never exercising his marital control over it by canceling or or destroying it, or, even by taking it out of his wife’s custody. From all which premises the inference was drawn in the argument that he intended the debt to remain in force, and, if so, that the general rule does not operate upon it. I have endeavored to state the argument with all the the force, which was not a little, given to it by the learned counsel for the complainant. There are two difficulties in the way of this view.
1st. Under the rule in question marriage does extinguish absolutely the pre-existing debt of the husband to the wife. This is a necessary result, because by the marriage the same person becomes both creditor and debtor, which at law cannot be ; nor in equity either can this be without some equitable ground. There arises what is termed confusion of rights. Bouvier Law Diet. Title, Confusion. The existence of the two relations, i. e., of debtor and [590]*590creditor in the same person is incompatible ; hence, necessarily, the debt ceases to exist and once gone it is gone forever. For it is not the case of a suspended remedy but of an extinguished obligation. This difference is too obvious to need more than the statement of it. Further, the fact that marriage operates upon the debt and not upon the remedy destroys all analogy between the debt of the husband and the debt of a third person such as to require according to the argument some act of the husband equivalent to a reduction into possession in order to bar the wife’s right by survivorship. The marriage of a feme sole has no effect upon the debtor’s obligation under a debt or chose in action held by her against a third person. The marriage in such case affects only the remedy. The debt remains with all its force, only, whereas before the marriage it was recoverable „by the wife alone, it is after the marriage recoverable by the husband, either alone or jointly with her ; and there is no incompatibility in the rule of law which requires that the husband shall exercise the remedy or reduce the debt into possession in order to vest it in himself absolutely. But the reduction into his possession, as creditor, of a debt due from himself is an absurdity. If it be said that he can at least take possession of the note, the answer is that this is not what is meant by a reduction of the debt into possession. That applies to the debt itself and not to the evidence of it. The husband’s reduction of a chose in action of a third person to his possession is exercised, in the sense of the law, not by taking custody of the evidence of it, i. <?., of the note or bond given for it, but he reduces it to possession, by assigning or releasing it, or by exercising in some way his marital'control over the debt. No such thing as this can be done by him with respect to his own debt. There is, therefore, no possible ground of analogy between this and the chose in action of a third person. The argument for the complainants rests on the assumption that the rule under consideration proceeds upon the presumed in[591]*591tent of the parties that the debt should be released or extinguished by their intermarriage ; but such is not the ground of the rule. The extinguishment of the debt is one of the legal consequences of the marriage, attaching to it on the grounds of public policy, and which take effect irrespective of any intention of the parties. It is true that the legal operation of marriage," so far as concerns the husband’s marital rights over the property of his wife, may be modified ; but that must be by some legal action of the parties,, such as a marriage contract or ante-nuptial settlement, or by a trust ; or there must, at least, be some transaction to raise an equity in favor of the wife against the legal operation of the marriage. The bare intent of the parties that marriage shall have some other operation than the law gives to it, however plainly manifest, cannot vary its legal consequences. For example, marriage, by force of law, upon grounds of policy, and not from any presumed intent of the parties, vests in the husband, absolutely, the wife’s chattels, in possession. It is clear that, if through a misapprehension of the law, or otherwise, the parties to a marriage supposed, or intended, that the wife should retain her chattels, that alone would not make them her separate property and exempt them from her husband’s debts. To have that effect there must have been-a marriage contract, or trust, or an equity in favor of the wife arising out of some consideration. The marriage itself might be a sufficient consideration to raise such an equity ; but to have that effect it must appear that the debt was to remain in force in consideration of the marriage ; that otherwise the marriage would not have been entered into so as to make really a case of contract. Take another illustration—marriage by law invests with the husband, a qualified title to his wife’s choses
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The Chancellor :—
The general rule was not disputed in the argument that marriage extinguishes at law all contracts and debts previously existing between husband and wife. The effect is the same also in equity, except where some equitable considerations intervened, such as may render it proper for that reason to preserve the debt against the operation of the rule at law. But the application of the rule to the present case was resisted in argument upon substantially these grounds which I have considered separately.
First:—That the effect of marriage is not to extinguish the debt absolutely ; but that it confers on the husband the power at his election to discharge himself by some act significant of his intent to do so, as by canceling or destroying the evidence of the indebtedness, if it were a written instrument, 'or otherwise if the debt were not of such a nature as to be canceled it might be discharged by some act or course of action signifying the husband’s election to discharge it. The husband’s relation to a debt due from himself at the time of intermarriage was treated in the argument as being analogous to his power over debts or choses in action of his wife due from third persons, which become his own, not absolutely, but only upon his reducing them to possession, by some act of marital control, as by suit or assignment or release of the chose in action. One of the counsel for the complainant varied the argument so as to concede that marriage was of itself a presumptive extinguishment, requiring no [589]*589future positive act of the husband to give it this effect, but that, as the extinguishment rested upon a presumed intent of the parties, that the marriage should have that effect, the presumption of such intent might be rebutted by facts and circumstances proved, shewing, to the satisfaction of the Court, that, in the particular case, the debt was intended to remain in force notwithstanding the marriage, and was so treated by the parties.
The facts relied upon,as shewing the husband’s election, in this case, not to discharge himself by the intermarriage but to leave the debt subject to the wife’s right of survivorship, were these:—that, although the debt was contracted pending an engagement for marriage, a written security for it was taken ; which was needless if not to continue under the marriage ; also that it was made payable at a time considerably to the future ; and that the husband during all the time of the marriage suffered the note to remain in the wife’s possession, as before the. marriage, never exercising his marital control over it by canceling or or destroying it, or, even by taking it out of his wife’s custody. From all which premises the inference was drawn in the argument that he intended the debt to remain in force, and, if so, that the general rule does not operate upon it. I have endeavored to state the argument with all the the force, which was not a little, given to it by the learned counsel for the complainant. There are two difficulties in the way of this view.
1st. Under the rule in question marriage does extinguish absolutely the pre-existing debt of the husband to the wife. This is a necessary result, because by the marriage the same person becomes both creditor and debtor, which at law cannot be ; nor in equity either can this be without some equitable ground. There arises what is termed confusion of rights. Bouvier Law Diet. Title, Confusion. The existence of the two relations, i. e., of debtor and [590]*590creditor in the same person is incompatible ; hence, necessarily, the debt ceases to exist and once gone it is gone forever. For it is not the case of a suspended remedy but of an extinguished obligation. This difference is too obvious to need more than the statement of it. Further, the fact that marriage operates upon the debt and not upon the remedy destroys all analogy between the debt of the husband and the debt of a third person such as to require according to the argument some act of the husband equivalent to a reduction into possession in order to bar the wife’s right by survivorship. The marriage of a feme sole has no effect upon the debtor’s obligation under a debt or chose in action held by her against a third person. The marriage in such case affects only the remedy. The debt remains with all its force, only, whereas before the marriage it was recoverable „by the wife alone, it is after the marriage recoverable by the husband, either alone or jointly with her ; and there is no incompatibility in the rule of law which requires that the husband shall exercise the remedy or reduce the debt into possession in order to vest it in himself absolutely. But the reduction into his possession, as creditor, of a debt due from himself is an absurdity. If it be said that he can at least take possession of the note, the answer is that this is not what is meant by a reduction of the debt into possession. That applies to the debt itself and not to the evidence of it. The husband’s reduction of a chose in action of a third person to his possession is exercised, in the sense of the law, not by taking custody of the evidence of it, i. <?., of the note or bond given for it, but he reduces it to possession, by assigning or releasing it, or by exercising in some way his marital'control over the debt. No such thing as this can be done by him with respect to his own debt. There is, therefore, no possible ground of analogy between this and the chose in action of a third person. The argument for the complainants rests on the assumption that the rule under consideration proceeds upon the presumed in[591]*591tent of the parties that the debt should be released or extinguished by their intermarriage ; but such is not the ground of the rule. The extinguishment of the debt is one of the legal consequences of the marriage, attaching to it on the grounds of public policy, and which take effect irrespective of any intention of the parties. It is true that the legal operation of marriage," so far as concerns the husband’s marital rights over the property of his wife, may be modified ; but that must be by some legal action of the parties,, such as a marriage contract or ante-nuptial settlement, or by a trust ; or there must, at least, be some transaction to raise an equity in favor of the wife against the legal operation of the marriage. The bare intent of the parties that marriage shall have some other operation than the law gives to it, however plainly manifest, cannot vary its legal consequences. For example, marriage, by force of law, upon grounds of policy, and not from any presumed intent of the parties, vests in the husband, absolutely, the wife’s chattels, in possession. It is clear that, if through a misapprehension of the law, or otherwise, the parties to a marriage supposed, or intended, that the wife should retain her chattels, that alone would not make them her separate property and exempt them from her husband’s debts. To have that effect there must have been-a marriage contract, or trust, or an equity in favor of the wife arising out of some consideration. The marriage itself might be a sufficient consideration to raise such an equity ; but to have that effect it must appear that the debt was to remain in force in consideration of the marriage ; that otherwise the marriage would not have been entered into so as to make really a case of contract. Take another illustration—marriage by law invests with the husband, a qualified title to his wife’s choses in action, that is, he may make them his by reducing them into possession. Now, if it could be proved in any case that a husband and wife at the time of their marriage supposed or intended that the [592]*592husband should succeed to her choses in action,absolutely, without any act reducing them to possession, the rule of law would not thereby be varied, and the wife be'deprived of her right of survivorship. So, in this case, marriage, by law, upon the technical ground that the same person cannot be both debtor and creditor,and not upon any presumed intent of the parties,extinguishes the pre-existing debt of the husband to the wife. It must be as clear that this le- \ gal consequence of the marriage will not, any more than those just spoken of, be varied by proof that the parties supposed or intended that their marriage should have some different operation. To give such effect to the bare intent of the parties would lead to this result, that there would be no general marriage law fixing the marital rights of a husband, but these would be whatever in any particular case it could be shown, that the parties supposed or intended them to be. The conclusion, then, seems clear that all the legal consequences of marriage, of which the extinguishment of pre-existing debts between the parties is one, are not to be avoided by evidence that the parties intended otherwise : but there must be some contract, settlement, or trust sufficient to raise an equity in favor of the wife against' the legal operation of the marriage.
It is a fact worthy of notice on the question whether the extinguishment of a debt by marriage is absolute, that in the books the rule is uniformly stated in terms to that effect. 2 Story's Eq. fur. sec. 1370; Bright's Eiusband and Wife 18; and in the general discussion of the rule in the cases, especially in the leading case on this subject, Cage vs. Acton, 1 Lord Raymond 515, marriage is throughout treated as a direct and immediate release, discharge, or extinguishment of the debt except in a case where a special equity to the contrary exists. It is difficult to see how, if marriage were but a qualified extinguishment, it should never have been, in any of the cases or treatises on the subject so referred to.
[593]*5932d. But there is another objection to the argument for the complainant that the extinguishment of the debt is upon the presumed intent of the parties, and that the facts of the case show that the intent of the parties was that the debt should remain in force. I have weighed the facts relied upon. They do not convince me, nor even raise any good degree of probability, that the parties intended or supposed that this debt should not be subject to the ordinary operation of marriage. The fact that a note with surety was taken for it at the time the money was loaned to Layton, is of no significance whatever. Even if the money were loaned in direct expectation of marriage, and that the debt would then be discharged by it, still the contingencies which might prevent the marriage would not have been likely to be overlooked, and would have prompted the taking of the usual evidence and security for the debt in the first instance. But the fact most relied on is that the note was allowed by the husband to remain in the wife’s separate custody, as before the intermarriage. This is supposed to be shown by the fact that the note is now produced by her. But her present possession of the note does not prove that it was allowed by the husband to remain with her as her own property. It raises no such presumption even, for she is the administratrix of her husband, and that sufficiently and most naturally accounts for hejr present possession of the note. At all events, it renders her possession altogether too inconclusive as to the character and object for which she held it. One more circumstance was relied on to support the argument that the debt was intended to stand in force; that is,that the husband did not destroy or cancel the note. This omission is too inconclusive to vary the effect of the rule, considering that under the law, the marriage by its own force had extinguished the debt, without any special disposal of the note, the omission of the husband to destroy or cancel it can be referred only to the reason that the debt being [594]*594discharged, it was immaterial what should become of the note. On the whole the conviction which the evidence leaves on my mind is that the parties gave themselves no concern about the matter, but left the law as to the effect of marriage to take its ordinary course. It is hardly con- ' ceivable that they would have- acted so carelessly had there been any purpose to secure to the wife a debt of so large an amount as $r8oo. An object of so much importance would have led to some positive action to secure the result such as a contract, or the creation of a trust.
The second ground, taken for the complainant, was that this debt, as a matter of fact,, became due after the death of the husband. The note was taken October 5, 1865 ; it was payable December 5, 1867. Layton, the husband, died January 16, 1866, before the note become due. It was argued that the rule of law applies only to debts due in prcesenti, or to such as actually become due during the marriage. But the ground upon which the rule proceeds, applies, as well to a debt payable in the future, as to a debt in prcesenti, provided the debt may become payable during the marriage and the payment of it is not expressly postponed until after the death of the husband. For although payable in the future, it is, in law, a present indebtedness. Debitum in prcesenti, solvendum in futuro. With respect to such a debt there must be both debtor and creditor, which two relations a husband cannot sustain, and so the principle, by which the debt is extinguished, applies. It has also been considered that a debt, say of a third person, which might become due in the husband's life could be released by him, and that as he could release such a debt of a third person, he must be held discharged of a like debt of his own. These, it is true, are very technical considerations, but the rule itself is altogether technical as applied to any debt whatever, and having been adopted as the law of marriage, it has been left to have its logical application [595]*595as well to the one kind of debt as to the other, future as well as present, where no equity intervened. We find, therefore, that although this precise point does not appear to have been ruled in any adjudged case, all the decisions and the text writers treat it as unquestioned that a debt of the husband before marriage payable in the future, but which may become due during the marriage, is discharged. They expressly distinguish such a debt from oné which, by contract before the marriage,is made payable after the death of the husband. In the latter case no obligation is considered as existing during the husband’s life, such as could be released by him. Such a debt is in effect a provision' for the wife made in contemplation of the marriage. It is such as a court of equity can always protect, and the courts of law have enforced such debts when they were secured by bond, as in Cage vs. Acton, 1 Ld. Raym. 515; Milbourn vs. Ewart and others, 5 T. R. 521. But in Cage vs. Acton, which is the leading case on the subject, it is expressly stated by Justice Gould, who delivered the principal opinion “ that by the intermarriage, all con- “ tracts for debts due in prcesenti, or in futuro, or upon con- “ tingency, which may become due during the coverture, “are extinct;” and such seems now to be the unquestioned rule. 2 Roper on H. & W., (76); Bright on H. & W. 19.
Third. There was another position taken on behalf of the complainant. It was argued that, even conceding the general rule to be applicable to the debt, as one falling due after the husband’s death, and that the rule would be in full force at law, yet that the circumstances of the case are sufficient to raise in favor of the wife an equity to have her right to the debt protected by this Court.
An equity of this nature must rest upon one of three grounds, viz : contract, trust or fraud. Most of the cases are those which arise out of contract, that is, out of some [596]*596provision made for the wife, either before marriage, and in consideration of it, or it may be after marriage, upon a sufficient consideration to- the husband, the provision, in all such cases being secured by the husband’s entering into some obligation to the wife. Such was the nature of the case of Cage vs. Acton, 1 Ld. Raym. 515, and the older cases therein cited from Hobart 216 and Cro. Jac. 517; also of Milbourn vs. Evart, 5 T. R. 381. In some of the cases the provision being made by a legal security, such as a bond of the husband, it was enforced in the courts of law. A court of equity would enforce such a provision, though not made in a form enforceable at law. In the present case the note of Layton was not given as a provision for the wife, in contemplation of the marriage, but solely for money borrowed by Layton, for Layton’s debt without respect to the marriage. The obvious and proper mode of securing to the wife at the time of the marriage, an equity to retain this debt in force was by means .of a trust, which was the second class of such equities just referred to. The note might have been assigned to a third person to hold as trustee for the intended wife. Such was the case of Cotton vs. Cotton, 2 Vern. 290; Prec. in Ch. 41 cited in Roper H. & W. 32. The other ground of equity referred to is that of fraud. I have met with no such instance, but there can be no doubt that it would be a ground of relief; as if a woman were induced to marry a man under the representation or just expectation that a debt previously held by her against him would remain in force and were thereby prevented from securing it to herself by a trust, a court of equity would protect her. In the present case, Layton’s note was not assigned by the wife to a trustee, nor any measure taken to secure it to herself ; nor was she prevented from so doing by any fraud or misrepresentation as to her rights or so far as appears even by ignorance of them. As before stated, the parties left the rule of law to take its course ; and upon the general presumption they must be taken to [597]*597have understood and intended the legal consequences of their action. The case does not present the shadow of a ground for this Court to interfere with the legal operation of the marriage.
It only remains to say, briefly, that, inasmuch as by the marriage Layton the husband was discharged from this debt, it results that the defendant, Johnson, is discharged also. It matters not. to this effect, whether Johnson was a joint debtor or a surety in the note. The law is too well settled on this point to need more than a reference to it. It maybe proper however to add that, as the case stands upon the record, Johnson must be'taken to have stood in the relation of surety in the note. For so he states in his answer which on this point is responsive to the bill, and there is no evidence to the contrary.
., On the whole I feel obliged, though with reluctance to dismiss the bill with costs.