| N.Y. Sup. Ct. | Mar 15, 1855
At the common law the disability of co
In this country it has been held, that where a husband absolutely deserts his wife, and renounces his marital rights and duties, and leaves the state, the wife may be regarded as a feme sole. In Abbot agt. Bayley, (6 Pick. 89,) it was held, that a residence in another state was equivalent to a residence in any foreign state. But before the wife can be treated as a feme sole, it must appear that the husband has voluntarily abandoned her, and, so far as he could do it, has renounced his marital relations. ' Such a renunciation, coupled with continued absence from the state, operates like an abjuration of the realm at common law. (Gregory agt. Pierce, 4 Metcalf, 478.)
The burden of proof would rest upon the party maintaining the right of the wife to act as feme sole. In this case the plaintiffs have not ventured to assume this burden, but have chosen to treat the wife as still under coverture, and seek to charge her separate estate with the payment of their debt. They allege, and have proved before the referee, that the debt was contracted by the wife, and that she agreed to pay it out of her separate estate. If this be so. though a judgment cannot be rendered against her in personam upon her contract, the court, in the exercise of equity jurisdiction, can charge the debt thus contracted as a lien upon the separate estate. (2 Kent’s Com. 164; 2 Story’s Eq. §§ 1399 to 1401; Gardner agt. Gardner, 22 Wend. 526.)
This I understand to be the effect of the judgment in this case, and the facts established before the referee warrant such a judgment. The judgment is, that the amount recovered by the plaintiffs be collected out of the separate property and estate of the defendant, Susan A. Lemon. The effect of this judgment is, to make the plaintiffs’ debt a charge upon the separate property of the wife. It may be imperfect in not directing the mode of enforcing ■ the lien; but this omission, though it may render some further application to the court
But it is insisted that the reference was unauthorized, and, of course, that the judgment founded on the ■ report of the referee, is also irregular. As against the defendant, George F. Lemon, this might be so. He was proceeded against by publication of the summons ; and in such a case the third subdivision of the 246th section of the Code, makes it the duty of the court to require proof to be made of the demand mentioned in the complaint. No authority is given to order a reference. But the defendant, Susan A. Lemon, was proceeded against by a personal service of the summons and complaint; and in such a case the second subdivision of the section last mentioned expressly authorizes a reference. As against Mrs. Lemon, therefore, the reference was regular; and even if it was irregular, as against the husband, as I am inclined to think it was, it does not lie with her to take the objection. He was, at most, but a nominal party; and if he does not complain of the irregularity, it is not for the wife to take advantage of it.
But, though the judgment may be upheld, as, in effect, a decree in equity declaring the plaintiffs’ demand a valid lien upon the separate property of the wife, the execution was irregularly issued. The plaintiffs’ attorney has entirely mistaken the mode of enforcing such a judgment as he has obtained. An execution can only be issued where the judgment requires the payment of money, or the delivery of specific real or personal property. Here the judgment only declares the plaintiffs’ right to have their debt paid out of the separate estate of the wife. An execution can only be issued upon a judgment in personam. Here the judgment is in rem. It is against Mrs. Lemon’s estate, and not against her personally. (See Code, §§ 285, 286.)
In this case, as the judgment does not contain directions for enforcing the lien which it declares, the plaintiffs, before they can proceed further, will find it necessary to apply for such directions. If the property chargeable by the terms of the judgment with the payment of the plaintiffs’ debt is in the hands of a trustee, an ‘order directing him to pay the amount of the
No issue having been joined in^the action, the plaintiffs could not be allowed a trial fee upon the taxation of their costs. The items for clerk’s fees, on entering the special term order, were also improperly allowed. An order must be entered deducting $15.50 from the costs as taxed, and setting aside the execution as irregular. As the defendant has succeeded but partially in her motion, neither party is to have costs as against the other.
The defendant has sworn to merits. It is probable that the questions upon which she relies have been disposed of by this decision; but as she may have some other ground of defence, the order may provide that she be let in to answer upon the payment of $10 for the costs of opposing this motion, and $6.63 for the costs of the reference and entering judgment.