depend almost entirely upon statute regulations | not cultivate either of those plantations during and the decisions of the state courts in constru- that year. Her authority to lease the premises ing those provisions. is not denied, and the finding of the court establishes the fact that she did not cultivate either plantation during the period when these supplies were furnished.

Contracts made by the wife at the period mentioned in the declaration, or by the husband with her consent, for family supplies or necessaries, including wearing apparel of herself and of her children, or for their education, or for buildings on her land or premises and the materials therefor, or for work and labor done for the use, benefit or improvement of her separate estate, were by statute declared to be binding on her, and that satisfaction might be had for the same out of her separate property. Code 1857, sec. 25, p. 336.

Supplies for the comfort, convenience and maintenance of the family and the education of her children must be contracted for by the wife, and, if not purchased directly by her but by the husband, they imposed no liability on her separate property, unless the husband had her consent to act. Unlike that, the rule is that supplies for her plantation, or for the repairs or improvement of her separate estate, or for work, labor and services in cultivating the same, the contracts may be made by husband and wife, or either of them. Clopton v. Matheny, 48 Miss., 286, 295.

Orders for supplies to her plantation, if filled, bind the separate property of the wife, whether bought by herself or her husband with or without her consent; the rule being in that State that the husband is for that purpose the agent of the wife in invitum, and that he is made so by legislative enactment. Code 1871, sec. 1780; Code 1857, 336. Her separate estate is bound for such supplies, even when purchased by the husband without her direction. Cook v. Ligon, 54 Miss., 368, 373.

Leased premises cultivated by the husband in his own name and for his own benefit are not plantations of the wife, within the meaning of the section of the statute which enacts that all contracts made by the husband and wife,or by either of them, may be enforced and satisfaction had out of her separate estate. Code 1871, sec. 1780; Code 1857, p. 336.

Nor is the contract in this case one made by the husband with the consent of the wife, which may also be satisfied out of her separate property. Nothing of the kind is pretended; and if it were, it could not be supported for a moment as the findings of the court do not contain anything to give such a proposition the least countenance whatever.

Suppose the plantations were leased to the husband and were cultivated by him that season in his own name and for his own benefit; still it is suggested by the plaintiffs that neither the party to whom the notes were delivered nor themselves had any knowledge of the lease, or that the husband purchased the supplies without the consent of the wife or authority of law. Even if that be conceded, it will not benefit the plaintiffs, as it only shows that they acted improvidently and without due caution, the settled decision of the courts of the State being that the provision that makes the husband the agent of the wife to purchase plantation supplies for her plantation applies only to those plantations which are cultivated for the wife's account and benefit, and not to those she has leased and which are in the possession and under the control of the tenant. Grubbs v. Collins, 54 Miss.. 485, 489.

Nothing, say the court in that case, will dis charge her estate save an express contract that it shall be released, or something equivalent to it. Neither the acceptance of the note of the Enough appears in the findings of the court husband nor the recovery of the judgment on to show that the plantations were in the exclusuch note will have that effect. Plantation sup- sive control of the husband, and that the supplies may include money advanced for the pur-plies were procured for the use of his employés, pose of purchasing the same: farming utensils, and that they were not plantation supplies for working stock or other things necessary for the account or benefit of the wife. Neither the cultivation of a farm or plantation, which lat- words of the statute nor the decisions of the ter designation must depend upon the usage state courts permit such a contract to be enand custom of agricultural pursuits. Herman forced against the separate property of the marv. Perkins, 52 Miss., 813. ried woman. In order that the contract may bind the separate property of the wife, she must be the beneficiary of the cultivation, and the supplies must, in fact, have been purchased for her account and benefit. Her plantation, says Simrall, Ch. J., is the predicate of her power to make the contract and, he adds, that a false representation that she has such property will not estop her from averring that the fact is otherwise.

Express statutory provision exists in the State, that married women may rent their lands or make any contract for the use thereof, and may loan money in their own name, take securities therefor and employ it in trade or business; and it is equally clear that she may rent her separate estate to her husband as well as to strangers. Robinson v. Powell, Sup. Ct. Miss., not reported. Beyond doubt, the two plantations belonged to the wife and her two children by a former marriage, but it is equally certain that the husband cultivated the same, during the year in question, on his own account and in his own name, under a verbal contract of lease made by him with his wife for a stipulated money rent. Supplies for the plantation of the wife, whether purchased by her or by the husband, bind her separate estate; and if she had cultivated these two plantations during the year referred to, the plaintiff would be correct, but the finding of the circuit court shows conclusively that she did

Nor does the statute oblige her to pay for property purchased on credit, the rule being that such an obligation cannot be enforced. Contracts made in the purchase of supplies for the cultivation of her own plantation, where the cultivation is on her own account and for her own benefit, may be enforced against her separate property. Previously, says the Chief Justice, the word was used by the law-maker to include all those things required and used by the planter in the production and preparation of the crops for consumption and sale.

If it be said that the family must be support- | Argued Jan. 8, 12, 1880. Decided Jan. 26, 1880. ed, and that the term ought to embrace food

and raiment for them, the answer to the sug: A District of Columbia.
gestion is furnished by a subsequent part of the
same section, which provides that supplies, nec.
essaries and conveniences for the family are not
necessarily chargeable on the wife's property.
She is not liable for such expenses; unless she
bargains to be, or unless the husband, with her
consent, buys them on her account. Wright v.
Walton, not reported [56 Miss., 1]. Verbal con-
tracts of lease, not exceeding the term of one
year, are valid by the laws of the State. Code
1871, sec. 2892.

PPEALS from the Supreme Court of the

Much discussion of the question of estoppel is unnecessary, as it is clear that a married woman cannot, by her own act, enlarge her capacity to convey or bind her separate estate. Palmer v. Cross, 1 Smed. & M. (Miss.), 48.

Facts recited in an instrument may be controverted by the other party in an action not founded on the same instrument, but wholly collateral to it. Recitals of the kind may be evidence for the party instituting the suit, but they are not conclusive. Carpenter v. Buller,8 Mees. & W.,209, 213; Herman, Estop., sec. 238; Lowell v. Daniels, 2 Gray, 161, 169; Champlain v. Val entine, 19 Barb., 485, 488.

In order to work an estoppel, the parties to a deed must be sui juris competent to make it effectual as a contract. Hence, a married woman is not estopped by her covenants. Plainly, the wife was not competent to purchase supplies for the plantation of the husband and, therefore, cannot be estopped by these recitals. Bigelow, Estop.,276; Jackson v. Vanderheyden, 17 Johns., 167.

Viewed in the light of these suggestions, it is
clear that there is no error in the record. Tyler,
Inf. & Cov., 726.
Judgment affirmed.

JOHN A. J. CRESWELL ET AL., COMMIS-
SIONERS OF THE FREEDMAN'S SAVINGS AND
TRUST COMPANY, Appts.

v.

THOMAS M. LANAHAN ET AL.

SAME v. SAME.

(See S. C., 11 Otto, 347-352.) Estoppel-ratification of officer's act-effect of.

1. Where a company borrowed money, and its note was given for it by its actuary, and the fund was honestly applied in payment of pressing liabilities of the company, and the trustees individually were advised of the transaction and made no objection, the validity of the note cannot be effectually denied by the company.

2. Where such actuary made the exchange of securities and was held out to the world as competent to do what he did, and it was done in conform ity to the established usage of the company in all such cases, the company cannot deny that he had the powers he habitually exercised, and thus as

sumed to have.

3. Where the transaction was made known to the trustees individually, and they never objected, it was a binding ratification. The company was concluded, and the commissioners after its insolvency are in no better position.

[Nos. 143, 152.]

The appellants filed in the court below two bills in equity, to compel the defendants to deliver up certain promissory notes. The facts are stated in the opinion. Mr. Enoch Totten, for appellants: First. The Freedman's Savings and Trust Company was a corporation organized for a specific purpose, and the statute provided that the securities could be transferred only by the affirmative voice of seven members of the Board of Trustees. A transfer of securities made in any other manner is void.

Head v. Ins. Co., 2 Cranch, 127; Perrine v. Canal Co., 9 How., 172; U. S. v. Bk., 21 How., 364 (62 U. S., XVI., 133).

Second. The funds and securities of the Freedman's Savings and Trust Company constituted a trust fund, and persons dealing with them did so at their peril, and, if in possession of any of them, may be called to account as if they were trustees.

Perry, Trusts, secs. 217,223 and 224.

Third. The fact that the defendant paid value for the notes, does not alter the case, because the rule is, that in cases where a man buys trust property, with notice of the trust, he shall be charged with the trust, in respect to the property

Perry, Trusts, sec. 217; Oliver v. Piatt, 3 How., 401; 2 Story, Eq. Jur., secs. 395, 1257, 1258.

Mr. S. T. Wallis, for appellees.

Mr. Justice Swayne delivered the opinion of the court:

Several of the documents referred to by the witnesses in this case (143) have been lost or destroyed, and there is some uncertainty and conflict in the testimony with respect to them and the transactions to which they relate. The discrepancies are not material, and the substantial facts appear with sufficient clearness to enable A statement, somewhat condensed, will be suffius satisfactorily to dispose of the controversy. cient for the purposes of this opinion.

In 1873, the Corporation represented by the appellants found itself seriously embarrassed for the want of means to meet its current daily liabilities. In November or December of that year, the Company borrowed from the appellee Lanahan the sum of $10,000, for which it gave its note, payable at sixty or ninety days-probably bearing a high rate of interest-and secured by $20,000 of the improvement bonds of the District of Columbia at their par value. The note was executed by the actuary of the Company. The loan was negotiated by the appellee, Juan Boyle, who acted as the agent of the Company, by virtue of a written document under the hand of its president and its corporate seal. The money was applied in payment of depositors. The Institution was suffering from the financial revulsion initiated and precipitated by the failure of Jay Cooke & Co., and which swept over the entire country. was deemed better to make loans at the interest paid, whatever it was, than to sell securities at the rates which then ruled in the markets.

It

About the first of May, 1874, it was agreed between Lanahan and Boyle that the former should

lend the latter $21.000, including the note of the | it was surrounded, and be able to avoid bankCompany for $10,000, and that Boyle should pro- ruptcy. The threatened catastrophe proved cure the Company to transfer to Lanahan a note inevitable. On the 29th of June, 1874, it closed of Anna Boyle and others to the Company for its doors, and a few days later went into liqui $8,000, secured by deed of trust to Eaton and dation. In the transactions with Lanahan, in Stickney, and the note of Juan Boyle to the making the loan and giving the note in one Company for $2,500, secured by another deed case, and in transferring and handing over the of trust to the same parties. Other collaterals, two notes in the other, the actuary was govwith which the Company had nothing to do, erned by the settled usage of the Bank in all were also to be delivered by Boyle to Lanahan. such cases. Boyle thereupon delivered the note for $10,000 to the Company, and the Company transferred and delivered to Lanahan the two notes of $8,000 and of $2,500. Both these notes were then overdue. This terminated Lanahan's dealings with the Company, and these are the notes in volved in this controversy. The bill. without imputing fraud, avers that Lanahan is not entitled to hold them, and prays that he may be decreed to deliver them to the complainants.

The transaction, like all others, was made | in 1850, and also trustee under the will of his known to the trustees individually, and they brother, Grey Vick, made in 1849, had authornever objected. This intelligent acquiescence ity under those instruments to make partition was a binding ratification. Kelsey v. Bk., 69 of the lands given and devised therein to and Pa., 426; Hilliard v. Goold, 34 N. H., 230; for the use of his children. If he had such auChristian University v. Jordan, 29 Mo., 68; thority, and exercised it in a proper manner, Sherman v. Fitch, 98 Mass., 59. the plaintiffs have no title, and the judgment must be affirmed. If he had not such authority, or did not exercise it effectually, the plaintiffs are entitled to recover either all the land in controversy or an undivided part thereof, and the judgment must be reversed. The facts of the case are set out in a special finding of the court below.

The arrangement was first. challenged after the Company became bankrupt and went into the hands of the appellants.

The Company was concluded, and the appellants can be in no better position. They, like assignees in bankruptcy, can have no rights, legal or equitable, but those of the insolvent party whom they represent. Gibson v. Warden, 14 Wall., 244 [81 U. S., XX., 797].

The appellants are not entitled to any relief. Other legal views which are applicable lead to the same conclusion, but it is unnecessary to pursue the subject further.

By the deed of Sarah Vick, referred to, in which her husband joined, she conveyed certain lands of which she was seised, to a trustee, to be held upon trust for her own separate use for life, with remainder to her children in fee; subject to certain powers of sale and exchange, and with the following proviso:

"Provided further, that said trustee is to per

This opinion disposes also of case No. 152. The two cases are the same, mutatis mutandis. The decrees of the Supreme Court of the Dis-mit the said Henry W. Vick, as agent for said trict of Columbia are affirmed.

trustee, and as agent and trustee for said Sarah Vick, during her life, and as agent and trustee for her children after her death, to superintend, possess, manage and control said property for the benefit of all concerned. Said Henry W.

ALONZO J. PHELPS ET AL., Piffs. in Err., Vick is to have power to sell and exchange said

v.

GEORGE C. HARRIS ET AL.

(See S. C., 11 Otto, 370-383.)

property after the death of said Sarah Vick, and to apply the proceeds to the payment of the debt due to the trustees of the Bank of the United States; if such debt is paid, the proceeds of the sale to be re-invested; and be sub

Decree in equity, when not a bar-power to sell- ject to the trusts of this deed."

arbitration.

1. A decree in an action to remove a cloud upon a title, which was dismissed on the ground that the case was not one in which a court of equity could give relief, is not res judicata, so as to constitute a bar to a subsequent action of ejectment for the same land between the same parties. 2. A power to sell and exchange or to dispose of, includes the power to make partition of lands, according to the decisions of Mississippi, which this court adopts in this case.

The deed closes with this paragraph:

64

My intention is that said Henry W. Vick shall be regarded, for the purposes of this deed, not merely as an agent, but also a co-trustee, and I desire he may be required to give no security for the performance of his duties; and the said Jonathan Pearce [the trustee] is not, in any manner, to be responsible for the acts and conduct of said Henry W. Vick."

3. The objection that the trustee did not give his Sarah Vick died in 1850, leaving four chilpersonal attention to the partition of the property, dren by her said husband, viz.: Mary B. Vick but, by agreement, submitted it to the arbitrament (now said Mary B. Phelps), Henry G. Vick (unof disinterested persons, is not sufficient to invalider whom the defendants claim), Ann P. Vick date the transaction. and George R. C. Vick, all under age and unmarried.

[No. 572.]

Submitted Jan. 6, 1880. Decided Jan. 26, 1880.

N ERROR to the Circuit Court of the United

By the will of Grey Jenkins Vick, referred to, the said Grey devised certain lands and other

property grandchildren of his father and

mother, among whom were the said children of Henry W. and Sarah Vick, and constituted the said Henry W. Vick trustee for his said children, giving him full power to dispose of all or any portion of said property which might fall to said children, and invest the proceeds in such manner as he might think proper for their benefit. After the said Grey's death, the said Henry W., as trustee of his said children, became seised in severalty by partition with the other devisees, of the proportion of lands devised to his said children, upon the trusts of the will.

This was an action of ejectment for certain lands in Sharkie County, Mississippi, brought by Alonzo J. Phelps and Mary B. Phelps, his wife, the plaintiffs in error, against the defendants in error, of whom George C. Harris and Helen S. In December, 1856, Henry G. Vick, the eldHarris, his wife, were admitted to defend as land- est of said four children of Henry W. and Sarah lords, the other defendants being their tenants in Vick, became of age, and soon after demanded possession of the property in dispute. The prin- from his father an account of his trust, and cipal question in the case is, whether Henry W. that his portion of the property held under said Vick, father of the plaintiff, Mary B. Phelps, and deed and will should be set off to him in severtrustee under a deed made by his wife, Sarah,alty, and threatened to file a bill in equity for

that purpose. They finally agreed to leave the matter to their attorneys, who decided that Henry G. Vick, having become of age, had the right to demand a division of the property, and to have his share set off to him; and the said attorneys signed a written instrument proposing the mode in which such division should be made, to wit: through the intervention of disinterested persons to be chosen by the parties. This plan was adopted; and Henry W. Vick and his son entered into a written agreement to that effect, designating the persons for making the partition, and binding themselves to stand to and abide by their decision. The arbitrators made an award by which the lands in controversy in this suit were allotted to said Henry G. Vick; an indenture was made between him and his father to carry the partition into effect; and he remained in possession of the lands set off to him until his death in May, 1859. It is this partition which is called in question by the plaintiffs.

Henry G. Vick died without issue, having first made a will by which he devised the lands in controversy, which were set off to him as aforesaid, to Miss Helen S. Johnston, now said Helen S. Harris, the defendant, who, after his death, went into possession thereof, and has ever since continued in possession.

The contention of the plaintiffs is, that Henry W. Vick had no authority, either under his wife's deed or under the will of Grey J. Vick, to make partition of the lands; that the partition made with Henry G. Vick was void; that he acquired no separate estate thereby, and had no power to devise the lands specifically; and that the plaintiff, Mary B. Phelps, as sole surviving child of Henry W. and Sarah Vick (the others having died without issue), is entitled to recover the property.

Henry W. Vick to the said Helen S. Harris, was directly raised by the bill in said cause and litigated between the parties; and that the said Supreme Court adjudged and decided that the said partition and devise were both valid and effectual, and that the said Henry W. Vick had full power and authority to make the said partition with the said Henry G. Vick. Which decision so made by said court was done to determine the jurisdiction of the court in said cause, and that said Supreme Court decided that the said chancery court had no jurisdiction thereof, and that if the said complainants therein have any right to the lands described therein, and which are the same for which this action of ejectment is brought, it is a legal title which must be enforced in an action at law."

The decree of the Chancery Court of Washington County, which was affirmed by the Supreme Court, was in the following words: "The court being of opinion that the complainants are not entitled to the relief prayed for in their bill, or to any relief in the premises from this court, it is, therefore, ordered, adjudged and decreed that the said complainants' bill of complaint be and the same is dismissed, and that complainants pay the costs, etc."

The bill was filed under a Statute of Mississippi, which declared as follows: "When any person, not the rightful owner of any real estate in this State, shall have any deed or other evidence of title thereto, or which may cause doubt or suspicion in the title of the real owner, such real owner may file a bill in the chancery court of the county in which the real estate is situated, to have such deed or other evidence of title canceled, and such cloud, doubt or suspicion removed from said title, whether such real owner be in possession, or be threatened to be disturbed in his possession or not, etc." R. S. Miss., 1871, sec. 975, p. 191.

In pursuit of the supposed rights of Mary B. Phelps, the plaintiffs, in February, 1871, ex- It is probable that the only effect of this stathibited a bill in the Chancery Court of Wash-ute was to enable owners of land not in possesington County, in which the lands in controversy were then situated, against the defendants, George C. Harris and Helen, his wife, to remove the cloud from the supposed title of said Mary, raised by said partition and the will of Henry G. Vick. The defendants relied on the validity of said partition and will, and the question was fully contested. In November, 1873, a decree was made dismissing the bill. An appeal was taken, and the Supreme Court of Mississippi affirmed the decree. The plaintiffs then brought this action of ejectment; and one of the questions in the cause is, whether the decree in the chancery suit did not render the controversy res judicata. The plaintiffs contended that it did not, and that the only effect of the decree was, to decide that a bill to remove the cloud from the title would not lie, leaving the parties to all their legal rights in an action at law.

On this question the court below finds and concludes as follows:

"And the court here now finds as a fact, from an inspection of the record in the said chancery cause, that the question as to the validity of the partition of the lands aforesaid, made by the said Henry W. Vick and the said Henry G. Vick under the deed of the said Sarah Vick and the will of said Grey J. Vick, and the power of said Henry W. Vick to make such partition, as well as the validity of the devise made by the said

sion to file a bill for the removal of clouds upon their title; since the ordinary jurisdiction of a court of chancery is sufficient to enable owners in possession to file such a bill. The questions: what constitutes such a cloud upon the title, and what character of title the complainant himself must have, in order to authorize a court of equity to assume jurisdiction of the case, are to be decided upon principles which have long been established in those courts. Prominent amongst these are: first, that the title or right of the complainant must be clear; and, second, that the pretended title or right which is alleged to be a cloud upon it, must not only be clearly invalid or inequitable, but must be such as may, either at the present or at a future time, embar rass the real owner in controverting it. For it is held that, where the complainant himself has no title, or a doubtful title, he cannot have this relief. "Those only," said Mr. Justice Grier, "who have a clear legal and equitable title to land connected with possession, have any right to claim the interference of a court of equity to give them peace or dissipate a cloud on the title." Orton v. Smith, 18 How., 263 [59 U. S., XV., 393]; and see, Ward v. Chamberlain, 2 Black, 430, 444 [67 U. S., XVII., 319, 326]; West v. Schnebly. 54 Ill., 523; Huntington v. Allen, 44 Miss., 654; Stark v. Starrs, 6 Wall., 402 [73 U. S. XVIII., 925]. And as to the de