Harrison. The counsel for the appellants understands, that in this case the Court entertains some doubt as to the capacity of infants female-or indeed maleto bind their property by marriage contracts entered into by them before marriage; or, to state the question more precisely and accurately-whether infants who enter into contracts of marriage, by which they settle their property upon themselves and the issue of the marriage, have not the right to vacate and annul those contracts, because of their disability to enter into them on account of infancy; the female, when her disability of marriage ceases to trammel her, and the husband at pleasure? It would be peculiarly injurious to society, and hurtful to the infants themselves, if they had any such capacity or power. The law has long settled that infants may contract marriage at the age of twelve and fourteen, and that they are bound by those contracts, the marriage being a valuable consideration; and that the provision made by these contracts for husband, wife and children, is incorporated in the contract of marriage, and forms a part thereof. It would indeed be a most strange omission, or rather gross defect, in the law, if, while it allowed infants to contract marriage, in which the most important interests of their whole lives are involved, it deprived them of the right to contract in mere incidents of the main contract, that is, bargaining for and selling themselves! For instance: a male infant, with the consent of his guardian or friend, contracts with a female an advantageous marriage, and she likewise, each having fortunes; and they are desirous to secure these fortunes to themselves and the issue of their marriage. They are advised by their parents to do this act of prudence before marriage, and it is done. Under these circumstances the parties are married, and immediately after the consumption of the marriage, the husband seeks to set aside the agreement and vacate the contract, upon the ground that he was an infant 1849. January Term. Healy & als. v. Rowan & als. when the contract was made, and it is therefore void; by which he acquires the fortune of the wife, secured to herself and issue of the marriage by their contract, which was the actual consideration of the marriage, and which by the law they were permitted to enter into. Now, would not this be the grossest fraud upon the wife and issue of the marriage? Would any court sanction or tolerate such fraud? The marriage is binding upon the parties that cannot be set aside; but that part of the contract which stipulates for the consideration of the marriage, and is part and parcel thereof, is to be vacated, because of the infancy of the contracting parties and supposed incapacity to contract for the consideration. This cannot be law, because it is against all morals. An infant who perpetrates a fraud upon another, can never protect himself from the consequences of his fraud upon the ground of infancy. He or she is always dealt with by the law as an adult. And this is the real ground of the rule in regard to marriage contracts made by infants, by which their property is settled. Any attempt to vacate the contract by either party, in regard to the property, is a fraud upon the other; and no imaginable compensation can be made to the other by the preparation of the fraud. The marriage has been consummated, and cannot be dissolved, and the Courts must carry into effect every part of the contract or none. The contract of marriage has been performed, and the consideration must be also. Upon the best established principles of policy and morality, infants are bound by their marriage contracts, in which they deal or contract in regard to both their real and personal estate, whether male or female infants. If the rule were otherwise, infants could not marry with any degree of safety or prudence, even under the advice and by the consent of their parents, though the marriage might be ever so advantageous to both parties, unless bond and security were given by the parties that they would respectively perform the covenants of the contract. But upon authority this principle of law is equally well established. See Harvey v. Ashley, 3 Atk. R. 607; Drury v. Drury, appended to Caruthers v. Caruthers, 4 Bro. C. C. 505; but better reported in 5 Brown's P. C. 570; Slocombe v. Glubb, 2 Bro. C. C. 545. See also Atherly on "Marriage Settlements," where all the cases may be found, and especially settlements by female infants. Atherly 28 et seq. marginal p. Tabb v. Archer, 3 Hen. & Munf. 399, concludes this question, and should now be taken as a fixed rule of property, not to be disturbed or questioned at this day. The counsel further insists that Mrs. Steptoe, after the death of her husband, confirmed the marriage contract made by her, by the taking possession of the seventy slaves settled upon her by the marriage articles and contract, of which there is full evidence in the record. If the deed in regard to her were defective it was a clear case of election; and she elected to confirm the marriage articles by taking possession of the said seventy slaves settled upon her by her husband, and by buying of the executor the other twenty slaves not so settled upon her. The counsel further insists that although the deed was not recorded as to Mrs. Steptoe, there was express notice to the purchaser of the real estate, and of this there is proof in the record. Leigh. The question propounded by the Court, taken with reference to this case, is, whether marriage articles executed by feme infant, with the consent of her guardian, or by her guardian on her behalf, is binding on the infant in respect to her own real estate, so that the Court will decree a specific execution of it, against her? 1849. January Term. Healy & als. 2'. Rowan & als. 1849. January Term. Healy & als. V. Rowan & als. I. It must be owned, that there is more conflict in the authorities upon the point than I expected to find. I do not mean to consider them, particularly. Mr. Atherley, in his Treatise on Marriage Settlements, leans to the affirmative. 27 Law Lib. ch. 1, p. 6, 27. After citing all the authorities pro and con, he says it is a doubtful question. Id. 22. M'Pherson on Infants, (which, I take it, is a later book than Atherley's Treatise,) considering the same authorities as Atherley, say, "Notwithstanding these dicta, it is now established [in accordance with the opinion of Lord Nottingham] that the real estate of a female infant is not bound, as far as she is concerned, by a settlement on her marriage, because the general incapacity of infants invalidates her contract, and the contract of the husband cannot extend beyond the limited interest which he acquires by marriage." Law Lib. No. 122, p. 328. The author refers for this doctrine to Simson v. Jones, 13 Cond. Eng. Ch. R. 78, where Sir John Leach, Master of the Rolls, held that a settlement executed by a master for a female infant, who was a ward of Court, under an order of the Court, would not be binding on her. He said, "that the personal estate of a female infant is bound by settlement made on the marriage, because such personal estate becomes the absolute property of the husband; and the settlement is, in effect, his settlement and not hers. It is now established, that the real estate of a female infant is not bound by a settlement before mar riage, because her real estate does not by her marriage become the absolute property of the husband, although by the marriage he takes a limited interest. The leasehold estate in question being given to the separate use of the wife, the husband takes no interest in it; and if the power of sale is well executed, it is by the act of the infant. It is not contended that she would be competent to convey such a power, if the settlement had not been made with the approbation of the Court; and 1849. January Term. Healy & als. V. & als. the question therefore is, whether the Court has jurisdiction to give a female infant the power of disposition of her separate property during her infancy, by a settlement made in contemplation of a marriage. Whatever doubts may have been entertained on the subject Rowan formerly, I take it to be clear that the real estate of a female infant would not be bound by a settlement made with the approbation of the Court. And it appears to me to follow, that the same principle is applicable to personal estate settled to her separate use. By the rule of law, she has no power of disposition during her minority; and this Court has, I think, no jurisdiction to give her such power. A female infant is bound by a settlement made on her marriage, as to dower and thirds, not by force of her agreement in the settlement, but by reason of the consent of her parent or guardian, and the statue of Henry 8." We may now answer the question put by Mr. Atherley, Mor. Sett. p. 21, 2: "What ground can a Court of Equity have for supporting an agreement, by an infant, in bar of dower, or concerning her personal estate, which it has not equally for supporting a settlement of her real estate?" But for the marriage agreement, the husband would take all the wife's personal property absolutely; and the agreement saves a portion of it to the wife: it is in effect, therefore, the husband's agreement. II. If any doubt yet remains of the incompetency of a feme infant to settle her real estate by marriage articles, it will be only necessary to advert to the statute law of England and of Virginia, 27 H. 8, ch. 10, § 6, 3 Bac. Abr. Jointure, B, p. 712, and 1 Rev. Code, ch. 107, 11, p. 405. There is a material difference between the two statutes. The English statute provides, that "every woman married, having a jointure from her husband, shall be barred of her dower of her husband's lands;" that is whether the jointress was an adult or infant at the time the jointure was settled on |