The opinion
PRITCHARD, Circuit Judge
(dissenting). I am unable to concur in the conclusion of the court in regard to the effect of the deed of trust which was executed by Ralph Savage to his wife, the respondent, on the 8th day of March, 1898. It is held that this instrument - constitutes a valid agreement upon a valuable consideration. In. considering this question we are confronted with a proposition which is serious in its nature and one that is worthy of careful consideration. The deed of trust was based upon the consideration that the respondent should release the liens existing upon the property of Ralph Savage, which had been created by virtue of the decree of alimony, and, among other things, it was provided in the deed of trust that the husband should comply with the provisions of the decree which required him to pay annually to the respondent the sum of $400. The inquiry naturally arises as to what were the reasons that prompted Ralph Savage to execute the deed of trust in question. ' To this proposition there can be but one answer, and that is that such instrument was executed for the purpose of freeing his property from existing liens and also to guarantee the performance on his part of the conditions contained in the decree, to wit, the proper maintenance and support of his wife.
When one marries he assumes a moral obligation, which, among other things, involves the duty of maintaining and providing for his wife; and while this is not a contract to support the wife, in the ordinary acceptation ‘Of the term, the duty enjoined is of such a character that the courts will by fine or imprisonment enforce its requirements. This is an obligation which is never imposed, except in cases where it is made to appear that the husband is not performing the duty thus enjoined upon him. In this instance it appears that Ralph Savage was not maintaining and supporting his wife in the manner in which he was in duty bound to do, and for this and other reasons the bonds of matrimony between the parties were dissolved, and accordingly a decree was entered requiring him to pay to the respondent during her *352 life time the sum of $400 per annumand subsequent thereto and in pursuance of such decree an agreement was entered into between the parties by which the husband executed a deed of trust, which provided that the property described therein should be conveyed to a trustee for the purpose of securing the payment of the annuities hereinbefore mentioned. This contract was based upon the consideration heretofore mentioned, and upon the theory that the parties were to live separate and apart and that the husband should be required to maintain and support his wife in the same manner as when they lived together.
Within a short time after the execution of the deed of trust the parties became reconciled and were remarried, and the husband again assumed the relation to his wife which he had sustained before they were divorced, and it appears from the record that he provided suitable support and maintenance for her from that time on. In other words, when the parties remarried, the husband voluntarily undertook to do that which the court had decreed he should do at a time when he was divorced from his wife. The agreement which he had entered into with his wife prior to their remarriage was in the nature of an executory contract, and, when the parties married the second time, the reasons upon which the decree and the contract were based ceased to exist. The husband, realizing that his entire real property was subject to this decree, he and his wife, who became sui juris by the decree of divorce, made a contract which, instead of being a lien on all of the husband’s property to secure the payment of the annuities mentioned in the decree of the court, provided that it should be a lien only on certain portions of it, which portions should be placed in the hands of a trustee who should hold the same merely as a security. When the husband and wife remarried, the new contract to marry and its consummation constituted a waiver on the part of the wife of all annuities secured to her, and thus discharged the property placed in the hands of the trustee of any lien; for, as the annuities thus ceased to exist or be ■enforceable, of course the securities were no longer valid.
In the case of Boyd v. Olvey, 82 Ind. 304 , it is held:
“It may be laid down as a general rule that, where an estate Is devised to trustees for particular purposes, the legal estate is vested in them as long as the execution of the .trust requires it, and no longer, and therefore, as soon as the trusts are satisfied, it will vest in the person beneficially entitled to it.”
When the parties remarried the wife became reinvested with the inchoate right of dower in all of the real property which the husband possessed at that time—that which was included in the deed of trust, as well as that portion of his property which had been freed from the lien created by the decree for alimony existing at the time the deed of trust was executed. While the act of remarriage resulted in reinvesting the husband with the title to the property conveyed in the deed of trust, on the other hand, it had the effect of reinvesting the wife with the right of dower in all of the real estate which the husband owned at the date-of their remarriage. Inasmuch as the proposition thai by the remarriage the wife was reinvested with her dower right in all property still owned by the husband and which had been owned by him at the time of the divorce, as well as invested with a dower right *353 in any additional property acquired by the husband since the date of the divorce, is undeniable, to hold that after the remarriage she still retained her rights under the deed of trust given in settlement of alimony would be tantamount to holding that by the remarriage the wife resumes all of her original rights in her husband’s property, without any corresponding relinquishment on her part of the rights acquired by the decree for alimony. This, I think, is neither law nor equity.' I take it that it will not be seriously contended that a remarriage of the parties did not render the decree for alimony inoperative. The agreement which had been entered into by the husband was to the effect that he would faithfully comply with the terms of the decree of the court, and, in order to guaranty his performance of such agreement, a certain portion of his property was pledged for that purpose. Suppose that no deed of trust had been executed prior to the date of the remarriage, could it be contended that the lien which had been created by virtue of the decree would continue to exist, notwithstanding the remarriage of the parties? Most assuredly such contention would be untenable, in view of the fact that such remarriage was sufficient within itself to render inoperative the decree by which such lien was brought into existence and upon which it was based.
For the reasons stated, I think that the property in question should be sold for the benefit of the creditors of Ralph Savage, the bankrupt, subject to a lien on the same for any annuities that may have accrued from the date of the execution of the deed of trust until the remarriage of the parties.