Barnett v. Lichtenstein, 39 Barb. 194

Barnett v. Lichtenstein

39 Barb. 194 | N.Y. Sup. Ct. | 1863

Lead Opinion

Clerke, J.

The special term has found that the note in question was not made or procured under the coercion of the defendant’s husband or any other person, and that the same was made at the request of her husband, for his benefit and as his surety. The note is in these words: “ Thirty days after date I promise to pay to the order of M. Lichtenstein [her husband] one hundred and fifty-two dollars seventeen cents, at 359 Canal street, value received, for the benefit of my separate real and personal estate, and the said sum is hereby declared to be a charge thereupon and payable therefrom.” It is alleged in the complaint that the defendant had separate real and personal estate, and this is not denied in the answer

I do not agree with the justice at special term, that the estate intended to be charged should be specifically described. By the terms of the contract the wife’s whole separate estate is charged; it is not necessary to specify the property, unless she intended to charge only a specific portion of it. It cannot be denied that a married woman can charge the whole or a portion of her separate estate as a surety for her husband. Of course, the intention to charge her separate estate must *200"be declared in the very contract which is the foundation of the charge. In the present case this intention is distinctly declared in the contract upon which this action is founded. The contract, however, declares that the consideration "was for the benefit of her separate estate; instead of which, it is found by the justice to have been given to secure the payment of the existing indebtedness of her husband, for the amount of the note. In other words, she signed the note as surety for her husband. The only question then is, can her separate estate be exempt from liability, because the contract, although it charges her separate estate, does not state the real consideration ? Suppose the words “ for the benefit of my real and personal estate” were omitted in the note, leaving the words “ value received” and the words charging her separate estate; would not the plaintiff be entitled to recover ? These words do not vitiate the note. She acknowledges that value was received, and it is proved that she signed the note as surety for her husband;—a consideration which the law recognizes as sufficient to bind her separate estate. A mistake in describing the particular consideration does not avoid any contract, provided a valid consideration existed, which was the real foundation of the contract. I admit a wife cannot estop herself by a contract which is void; but it is a mistake, I think, to say that a misstatement of the consideration makes it void. The act of 1860 is not applicable to a charge on the separate estate of a wife; and if it was, the husband’s consent is satisfactorily shown, when it appears the note was given for his benefit, and was indorsed and transferred by him.

The judgment should be reversed and a new trial ordered; costs to abide the event.

Sutherland, J. concurred.

Dissenting Opinion

Ingraham, J.

(dissenting.) I do not concur in the views expressed by my brethren in this case. I understand them as considering that the note on which this action was brought *201was not for any benefit to the separate estate of the wife, but as given as security for the debt of her husband. The note was made payable to the husband and indorsed by him to his creditor.

1. I am of opinion the wife cannot loan her note to her husband for his benefit without any consideration to herself) to be used by him as security for his debts, even although she makes it a charge upon her separate property. 2. if or can she charge her separate estate for any such indebtedness, by the mere words included in the note declaring that the indebtedness is such a charge. I concede that a wife may bind her separate property so as to be such security; but it must be, as to real estate, in a form that will reach real estate. She may join with her husband in a mortgage of her real estate for money advanced to him; or she may make any specific piece of property liable to such a charge by executing an instrument which, at the time, imposes such a liability. But the general declaration contained in this note, is not, in my judgment, sufficient to impose on all her estate, real and personal, a liability which, at law, is void and cannot be enforced, and which, therefore, presents to equity no good reason why a court of equity should interpose its power to enforce a contract which is void at law. The effect of such an interference is to place a married woman in a worse condition than if she were sole—to put her more completely in the power of her husband, than she would be under any other relatives, and to deprive her of all the safeguards which the law has thrown^ around her to preserve to her own use from the debts and liabilities of her husband, the property which is hers and not her husband’s. I concur fully with Comstock, J. in Yale v. Dederer, (18 N. Y. Rep. 265, 276,) when he says : “ The principle on which the liability depends cannot be extended to cases of mere suretiship for the husband or a stranger. The obligation of a surety is held to be stricti juris, and if his contract is void at law, there is no liability in equity founded on the consideration between the principal parties. *202* * * * If the promise is on her own account, if she or her separate estate received a benefit, equity will lay hold of those circumstances and compel her property to respond tó the engagement. Where these grounds do not exist there is no principle on which her estate could he made answerable. * * * Courts of equity, proceeding in rem, will take hold of her estate and appropriate it to the payment of her debts. But when her obligation is one of suretiship merely, she owes nó debt at law or in equity. If not at law, wdiich is very clear, then quite as clearly, not in equity.”

[New York General Term, February 2, 1863.

Sutherland, Ingraham and Clerke, Justices.]

The acts of 1848 and subsequent ones, as to married women, give no greater validity to contracts of suretiship by married women than they possessed previous, to the passage of those statutes. I know of no case where a liability of a wife as surety for her husband has ever'been enforced against the wife, except where she has made such liability against herself by an express incumbrance upon some specific property. If her mere declaration in a note that she intends thereby to hind her separate estate, is sufficient to create á valid obligation when it is utterly void without it, she is placed by equity in a much worse condition than the husband. I am not disposed to deprive the wife of the few safeguards that are left to her as to her separate estate, to protect it from an extravagant and imprudent husband, by extending the liability of the wife in such cases any further than they existed under the old system; unless the new statutes clearly impose such liability. As they do not reach this case, I see no reason for interfering with the judgment appealed from.

New trial granted.