Corn Exchange Insurance v. Babcock

42 N.Y. 613 | NY | 1870

Hunt, Com.

Several objections are made to the plaintiff’s right of recovery, which I will consider in their order:

1st. It is said that the action is not proper in form; that it should be special under the statute, alleging the facts and asking that the separate property of the defendant bo subjected to the payment of the debts in question. This objection is not valid. The complaint is special. The allegation of a separate estate in the wife, of her intent to charge it by the indorsements in question, together with proof of her separate estate, and of the insolvency of the other defendants, are all of a special character. They refer to the character of the defendant as a married woman. They would be quite unmeaning in an action upon an ordinary indorsement. Again by the acts of 1860 (p. 158), and the act of 1862 (p. 344), a suit is authorized to be brought against a married woman, “ in all matters having relation to her sole, and separate property * * in the same manner as if she were sole,” and “ a married woman may be sued in any of the courts of this State; and whenever a judgment shall be recovered against a married woman, the same may bo enforced by execution against her sole and separate property, in the same manner as if she Avere sole.” These provisions are incorporated into the Code by amendments to. sections 274 and 287. The facts are set forth, the proof is made, and the rights of the parties are properly before the court for adjudication.

2d. It is argued that the contracts described in the complaint, were not, in fact, for the benefit of Mrs. Babcock. The general subject embraced in this suggestion, will be more fully considered under a subsequent point. It is sufficient to say, in answer to this specific objection, that neither the statute, nor the authorities limit her ability to charge her estate to cases, in Avliich the contract is for her personal benefit. Her real and personal property are secured to her, in the same manner, as if she were a single female. (Laws 1848, p. 307.) By the statute of 1860, the property of a married woman, shall remain her sole and separate property, notAvithstanding her marriage. (Laws 1860, p. 157.) This property, both real and personal, she is authorized to- sell, transfer, and convey. (Id.) It is further enacted by the same statute, that a married woman may sue and he sued in all matters relating to her separate property, in the same manner as if she were sole. When a married woman assumes to act in reference to her separate estate, the question is not whether her action is really for her own benefit. The right to act, and to bind her estate, carries with it the right to act unwisely, and to her own injury, if she so wills. The fact that her action is for the benefit of her property, is, no doubt, one ground on which it may be subjected. It is not, however, the only one.

I have considered these points with reference to our statutes; as, in my judgment, this case comes within those statutes, and the form of the action, the form of the judgment, and the execution upon it, are to be regulated by them. They are right in form under the provisions of our statutes.

3d. The third objection, and which seems to have controlled the decision of the court below, is to the form in which the charge upon the estate is made. It is insisted that the instrument creating the charge should contain a description of the property intended to be charged, or at least a reference, by which it can be identified. The court below say: “ If she attempted to make a deed or conveyance of her property in such a way, it would be plainly illegal; and I think neither of the acts of bargain, sale or conveyance, which in the previous part of the same sentence (of the statute) she is empowered to make, would be well executed by a simple statement in writing, ‘ For value received I hereby bargain (or sell or convey) my individual property to A. B.’ It appears to me, it would be rejected for indefiniteness as well as for non-compliance with the forms of law; and I am strongly inclined to think that the loose and indefinite language contained in this instrument is a decisive objection to its validity.” In announcing their conclusion to grant a new trial, the decision is based upon grounds thus expressed: “ That there is no occasion or justification for any departure from the established principles and proceedings of a court of equity, which require, in order to make and enforce a valid charge, a specific description of the property, in the instrument creating the charge, executed according to legal formalities, and enforced in equity under a complaint seeking as relief, nót a general judgment, but the satisfaction of the charge and of the specific property subjec: ted theretoand again, that “ the act of 1862, empowering a married woman possessed of real estate as her separate property, to bargain, sell and convey the same, and to enter into any contract in reference thereto, with the like effect in all respects as if she were unmarried, refers to such modes and forms of bargain, sale and conveyance of real estate, and contracts relative thereto, as were recognized as legal and were in conformity with the law as expounded in judicial tribunals at the time, and does not sanction a contract or charge of the kind now under investigation.” The respondent’s counsel expresses clearly the same idea in his first point thus : “ The contract does not specifically describe the separate property intended to be charged, and is therefore uncertain. A specific lien is not in any manner or in any way, recognized by law, created on any particular property. There is no mortgage or pledge, or any absolute or conditional conveyance of the separate estate.”

This proposition "was sustained not only in the present, case, but by the General Term of the fourth district in the case of Kelso v. Tabor (52 Barb. 125). Entertaining great respect for the learned judges composing these courts, I have given to the question a careful and deliberate examination.

The act for the more effectual protection of married women, passed April 7,1848, enacts as follows: “ § 1 The real and personal property of any female who may hereafter marry, and which she shall own at the time of her marriage, and the rents, issues and profits thereof, shall not be subject to’ the disposal of her husband nor be liable for his debts, and shall continue her sole and separate property as if she were a single female.” (Ch. 200, p. 307.) The second section makes the same enactment as to the property of “ any female now married,” except that the same may be liable for the debts, of her husband theretofore contracted. The third section, as amended by the act of 1849 (ch. 375, p. 528), enacts as fol-. lows: “ Any married female may take by inheritance or by • gift, grant, devise or bequest, from any person other than her husband, and hold to her separate use, and convey and devise, real and personal property, and any interest or estate • therein, and the rents, issues and profits thereof, in the same manner and with the like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband . nor be liable for his debts.”

The statute of 1860 (ch. 90, p. 157) reaffirmed and, in some .particulars, enlarged this authority. In the third section .thereof it is enacted that “any married woman, possessed,of .real estate as her separate property, may bargain, sell and convey such property, and enter, into any contract in reference to the same; but no such, conveyance or writing shall be valid without the assent in .writing of her husband, as hereafter provided.” By the .act of 1862 (ch. 172, p. 344), the restriction that the conveyance must be accompanied by the assent of the husband, was repealed.

It will be observed that these statutes contain the expressions, “her separate property,.as if she were a single female,” and “to her separate use in the same manner and with, the-like effect, as if she were unmarried.” The condition of a .married woman, holding property to her separate use, as if " she were a feme sole, was well understood in the jurisprudence of this country at the time of the passage of these acts. It had been in use in England.and in this country for a long .time. It had been the subject of legal determinations for ' more, than a hundred years, "\yiien the legislature use this well known description, they use it with reference to its . equally well known meaning. To ascertain, therefore, whether a married woman can now and.here subject her separate property to the payment of a debt, like that before us, by an . instrument like that beforp us, w,e, must refer to the former adjudications respecting a married .woman, who held property as if she were a, feme sole.

The first case in this State, where this general question of the rights of a married wom'ah, thus holding property, arose, was that of the Methodist Episcopal Church v. Jacques (3 John. Ch. Cas., 17). The opinion of Chancellor Kent is learned and exhaustive, embracing a full review of all the English cases. He held, hi substance, that the legal incapacity of the wife to convey or to bind her estate, was relieved only so far as the language of the trust gave express power to dispose of the property; that she was authorized to dispose of the trust estate only in the manner expressly provided for in the instrument creating it. He held, therefore, that the disposition made by the wife and husband, by mutual assent, but without the formalities indicated in the deed of settlement, were invalid, and charged the husband with the sums received under that arrangement. >

This case was carried to the Court for the Correction of Errors, where it was elaborately argued by Thomas Addis Emmet and Baldwin, for the appellant, and Samuel Jones and Harrison, for the respondents. (17 Johns. R., 518.) Opinions, concurring in overruling the decision of Chancellor Kent, were delivered by Ch. J. Spencer and Judge Pratt. It was established that a feme covert with respect to her separate estate, is to be regardéd as a feme sole, and may dispose of her property without the consent of her trustee, unless she is specially restrained by the instrument under which she acquires it; and though a particular mode of disposition be pointed out in the deed of settlement, it will not preclude her from adopting any other mode of disposition, unless there are negative words restraining her power of disposition, except in the very mode so pointed out.

In The North American Coal Co. v. Dyett (7 Paige, 9), the question was again before the court. By an ante nuptial agreement Mr. and Mrs. Dyétt had conveyed a house and lot in the- city of Mew York belonging to the wife, to trustees upon the following trusts, among others: To sell and convey upon the written consent of husband and wife, and invest the proceeds' in other securities, with power of changing the same from time to time upon like written consent. The proceeds were to be paid over as provided for in various contingencies. Among others upon the insolvency of Mr. Dyett, “ they were to be paid over by the trustees to the wife to her sole and separate use in like manner as if she Avere a feme sole.” After sundry transfers, the estate became invested in a manufacturing establishment in Poughkeepsie, which was carried on for the benefit of the estate, Mr. Dyett, Avho had, in the mean time, become insolvent, and had been discharged under the insolvent act, acting as the agent of the trustees. The factory, being in need of coal for its work, purchased a caigo of the plaintiffs, for whicli Mr. Dyett gave a draft at sixty days on Mr. Livingston, the formal agent of the factory. This draft ivas accepted by him but was never paid. The plaintiffs filed their bill against Dyett and AV'ife and the trustees, for the purpose of subjecting the trust estate to the payment of this debt and other similar claims. The bill was sustained and judgment given for the payment of the plaintiffs’ debt. The case was carried to" the Court for the Correction of Errors, and was there affirmed. (20 Wend., 510.) The chancellor lays doAvn the rule thus : “ The feme covert is as to her separate estate considered as a feme sole, and may in person or by her legally authorized agent, bind such separate estate Avith the payment of debts contracted for the benefit of that estate, or for her oavu benefit upon the credit of the estate.” He refers to numerous English cases, and the Methodist Church v. Jacques, supra. In the Court of Errors, Mr. Justice Coaven, upon the point that Mrs. Dyett’s admission in the answer that Livingston was her agent, was not binding upon her, remarks: “ It is said that such an answer is not to affect her interests, although she joined in it; that it is still but the answer of her husband and this, I agree, is in general so. I am not aware, however, that the rule has -ever been applied to a wife, who is sued in respect to her separate estate. The bill is in the nature of an action at law against her for the recovery of a debt; and although her person is not liable, she is proceeded against in respect to her estate as a feme sole. Having an estate which she is capable of charging by her contract in the first instance as a feme sole, it seems to follow that her admissions, by way of answer or otherwise, are to be received in evidence against her. Where her separate estate is completely distinct, and, as here, independent of her husband, she seems to be regarded in equity as respects her power to dispose of or charge it with debts, to all intents and purposes, as a feme sole except in so far as she may be expressly limited in her powers by the instrument unde which she takes her interest.” This action was against tin wife in person, and settles two principles: 1. That the estate of a married woman is liable to the payment of a debt contracted for the benefit of such estate. 2. That the instrument contracting the debt need not contain any description of or reference to such property intended to be benefited or held to be bound.

Yale v. Dederer came first before the Court of Appeals in 1858. (18 N. Y. R., 265.) In that case, Dederer had bought thirty-eight cows of the plaintiff, who refused to complete the sale, unless his wife would sign with him a note for the price of the cows. Mrs. Dederer did, therefore, sign the note. An action was brought upon it against Dederer, judgment recovered, execution issued, returned unsatisfied, and an action then brought against the wife. She was proved to have a separate property in real and personal estate, amply sufficient for the payment of-,the note. The judge at the special term, ordered judgment against her, charging her separate estate with the payment of the note. The judgment wras affirmed by the General Term of the sixth district, and Mrs. Dederer appealed to the Court of Appeals. In delivering the opinion reversing the judgment and in commenting upon the statutes of 1848-9, Judge Comstock says: “ My conclusion, therefore, is, that, although the legal disability to contract, remains as at common law, a married woman may, as incidental to the perfect right of property and power of disposition, which she takes under this statute, charge her estate for the purposes and to the extent which the rule in equity has heretofore sanctioned in refer once to separate estates.” (Page 272.) The judgment was reversed upon the ground, that the mere signing of a note by a married woman, not in fact for the benefit of her estate, but as surety for another, and not declared in the note to' be for her benefit, and where she had not professed in the contract to charge such estate, did not operate as a charge upon the estate. This judgment was not unanimous; Judges Denio and Roosevelt dissenting, and Judge Strong not voting, doubtless upon the ground that it was in hostility to the English authorities.

The same case came again before the Court of Appeals in 1860. (22 N. Y. R., 450.) The facts were as before stated with two additions. It was found, first, “ that Mrs. Dederer became seized in fee of her real estate, subsequent to the act of 1848 ; and, secondly, that Mrs. Dederer intended to charge, and did expressly charge her separate estate for the payment of the note.” The court held, that in order to charge the separate estate, the intention to do so must be declared in the very contract which is the foundation of the charge, or the consideration must be obtained for the direct benefit of the estate itself. Judgment was ordered accordingly in favor Of Mrs. Dederer.

In each of the examinations of Yale v. Dederer as well as on each of the hearings of the Methodist Church v. Jacques, the body of the English law, in respect to separate estates of married women, is brought in review; the opinions of the various chancellors-are discussed; the ° discordant reasons upon which the law was maintained, the cases overruled and that should be overruled, examined; but in the whole array is not to be found an authority that the contract Of the married woman, must contain a description of the estate she proposes to charge.

Owen v. Cawley (36 N. Y. R., 600), avas an action to recover for professional services rendered to a married woman for the benefit of. her separate estate. The defendant carried on -a ship chandlery business under the agency of her husband, who employed the plaintiff to collect various demands arising out of the business. The court sustained the recovery against her, laying down the law in this language: “ Where services are rendered for a married woman by her procurement, on the credit and for the benefit of her separate estate, there is an implied agreement and obligation springing from the nature of the consideration, which the courts will enforce, by charging the amount on her property as an equitable lien. Where a charge is created by her own express agreement for a good consideration, though for a purpose not beneficial to her separate estate, or even for the sole benefit of her husband, she is bound in equity by the obligation she thus deliberately chooses to assume.” In that case, there was not only no description of or reference to, the separate property, but there was not even a written contract of any character.

In Ballin v. Dillaye (37 N. Y. R., 35), it appeared that Mrs. Dillaye was a married woman, having separate property ; and that in 1860 she purchased,- at a mortgage sale, certain premises under ta special agreement. Among other things, she recognized a prior mortgage upon the same premises, and agreed to pay the same, and secure such payment by a new mortgage to be executed by herself. She received a conveyance of the property and executed a neAV mortgage, omitting thereby íavo lots, to which she received an unencumbered title. Mrs. Dillaye’s mortgage was foreclosed in 1864, and on the sale there Avas a deficiency of more than $600, which the plaintiff sought to make a charge against her other separate property. The plaintiff offered to prove that she had such other separate property to the value of $10,000. The Special and the General Term held, that no judgment could be entered against her for the deficiency, deciding, as a matter of Iuav, that a married Avoman is not personally bound by-her agreement to pay the purchase price of real estate, which she purchases for her separate property, although she has a separate estate. (Page 37).

This judgment Avas reversed in the Court of Appeals, Parker, J., delivering the opinion. He says: “ I have no doubt, therefore, that in the case at bar, the obligation, which the defendant took upon herself by the execution of the bond, was for the benefit of her separate estate, which is, therefore, chargeable in equity with the payment of the deficiency in question. In such case, the liability attaches not as a specific lien, on any particular portion of her estate, but upon the whole of it. Her separate estate, as a whole, becomes liable for any indebtedness contracted by her, for its benefit, to any extent.” There was not only no description in this case of the property sought to be charged, but the liability arose upon the purchase of another piece of property, different and distinct from it.

Similar to this in its principles, and in the ruling upon it, was the case of White v. McNett (33 N. Y. R., 371). The action was upon a guaranty executed by a married woman and her husband, on the transfer of her .mortgage, and the recovery against her upon the guaranty was sustained as a charge against her individual property.

These are the material authorities in this State, bearing upon the point under discussion.

I will now refer to the English authorities. Mr. Clancy thus lays down the rule. “ In the preceding chapters, an attempt has been made to elucidate and explain the rule 11 that a feme covert, acting with respect to her separate property, is competent to act in all respects as if she were a feme sole: and all the cases seem to concur in affixing this meaning to it, that whenever a married woman acquires property to her separate use, exclusive of her husband, she may deal with it as she pleases, and may exercise over it every .right, which she could possess, if she were unmarried.” (Clancy’s Husband and Wife, 331, 2d Am. ed., 1837.)

In Norton v. Turvill (2 P. Wms., 144), the separate estate of a married woman was held liable for her bond for £25, made by her for money borrowed by her; and in Stanford v. Marshal (2 Atkins, 68), where two married women joined their husbands in bonds for money lent, it was ordered that the rents and profits be paid over to the creditors in liquidation of their debts.

In Hulme v. Tenant (1 Br. Ch. C., 16), the- husband bon rowed of the plaintiff £50, for which he gave as security a bond, executed by himself and wife. The following year having occasion for a further sum, the husband applied t< the plaintiff for £130, which was advanced, and a new bond for £180 given by the husband and wife for the amount, the wife at the same time paying the interest on the previous loan. On a bill filed to enforce the bond as a charge against the separate property of the wife, it was objected “that the security must be agreeable to the nature of the property; it must be a security which would be a lien upon it, such as a mortgage would be; that the act done by a married woman, in order to bind her estate, ought, by some means, to refer to it; but that the bond in the present case had no reference whatsoever to any property.” Lord Thublow said he had no doubt of this principle; that if a court of equity says that a feme covert may have a separate estate, the court will bind her to the whole extent as to making that estate liable to her own engagements, as for instance to the payment of debts ; but he did not find that the court had ordered a power to be executed, they had only stopped the fund where the power was executed. He could not, therefore, order the power to be executed, but he was exceedingly clear that the lease held was liable. A reference was ordered to take an account of the rents and profits, and that the plaintiff’s bond should be paid therefrom. It is but just to say that the case was afterward questioned by Lord Eldon, in Nantes v. Conoch (9 Vesey, 188), and Jones v. Haines (9 Vesey, 491).

notwithstanding the doubts of Lord Eldon, this doctrine was subsequently reiterated in numerous cases. Heatley v. Thomas (15 Vesey, 596), was this: William Johnson and Sarah Smith, a widow, intermarried. Previous to the marriage, a sum of £2,600 and an annuity, to which Mrs. Smith was entitled, were vested in trustees for her sole and separate use, with power, by will or other writing, to dispose of the same as she should appoint. Mrs. Johnson made a will and appointment. She also executed a bond to the plaintiff as security for a person who afterward became bankrupt. A bill was filed against her executors, and those of her Husband, praying that her separate estate should be made liable to the' payment of the principal and interest due by the" bond to the plaintiff. After mfieh argument the case is thus stated. “ The principal question in this case was whether the bond of \h.%ferne covert, during her coverture, could be considered a valid charge on the separate estate, and his honor (Sir William Grant) held that it was a valid charge, although she had a power of appointing only by will.” (Clancy, 103.).

The case of Bulpin v. Clarice (17 Ves., 365), was still later, and was to the same effect. There the property was conveyed to trustees, to receive the rents and profits, and pay the same to such persons and to such uses as Margaret Clarice should, during her life, direct and appoint. The bill was filed against Clarice and wife and trustees, stating that she had borrowed £250 upon her promissory note, which she promised to repay out of her separate estate. It was argued that the note was not an execution of the power, as it had no reference to her separate property, and that a court of equity had no right to apply the rents and’ profits of the separate' estate of a feme covert to the discharge of a debt. The decree directed the payment of principal and interest out of the separate estate. See also Boner v. Bailey (1 Ball & Beatty, 49), and Clerk v. Miller (2 Atk., 374); Gregory v. Lockyer (6 Mad., 90), and the summing up of Mr. Clancy at page 346 of his work. He says: 11 So the present state of our law on this part of our subject seems to be this; that if a married woman, having separate property, execute a bond or note, or any other instrument, by which she pledges herself for the payment of money, that property will be bound by her engagement, though the instrument which she has signed does not purport to be a lien upon the estate. But, on the other hand, that if the demand against her arise merely from an implied undertaking, then it cannot be executed out of such .separate estate.”

■ In Murray v. Beebe (4 Sim., 82), it was held that, where a married woman, having scjiarate property, living apart from her husband, employed the plaintiffs as her solicitors, and promised them by letter that she would pay-their bills, but did not refer to her separate property, that her separate property was liable to pay'the bills. The bill filed to enforce payment was demurred to on the ground that the general engagement of a married woman does not affect her separate property, and'thatthe letters contained no-reference to her separate property. The demurrer was overruled.

In Owens v. Dickenson (1 Craig & Ph., 48), the same rule is laid down; and it is held by Lord Brougham that the. doctrine is applicable to all debts whether written or verbal.

The very recent case of Mrs. Matthewson (English Law Rep., 3 Eq. Cas., page 781, 1866), and of Butler v. Compton (7 id., page 16, 1869), reiterate the same doctrine. They were both cases under the contribution acts, where the separate estate of the married woman was charged as a contributory, upon the ground that, in giving the order for the purchase of the stock, she had intended to charge her separate estate, and had done so. In neither case, was there any description of the property intended to be charged.

In Shattock v. Shattock (3 id., 182,189), Lord Romilly lays down, in substance, the same doctrine, but insists upon the long contested proposition that the-power .of charging the estate comes from the power of appointment- or disposition, 'and not from the power to contract.

In McHenry v. Davics (10 id., page 88, equity series, August, 1870), Lord Romilly held, where a married woman, living abroad alone, under circumstances which led to the belief that she. was a feme sole, indorsed a bill of exchange and drew a check on her London bankers, for the purpose of enabling T., who acted as her agent, to raise money, the bill and check being cashed by a banker in .Paris and dishonored, that the separate estate of the married woman was liable to make good the amount, and that the equities between herself and T. could not be inquired into.

Among all these cases there is not one -that holds that, where a married woman, having separate property, incurs a liability for which she declares, at the time of incurring it, and in the instrument by which it is incurred, that her separate estate shall be held, that the separate property does not become charged. At least, I may say, after a diligent examination, that I have met with no such case either in the English courts or those of the last resort in this State. There are, however, several in which the precise objection has been made and overruled.

There is no more propriety in the principle sought to be sustained than there would be in holding that the promissory note of a male adult must describe the property seized on execution issued ón a judgment recovered upon the note. In each case, the note or bond creates a binding obligation. The law holds all of the property of the maker or obligor responsible for its satisfaction. The judgment, when recovered, creates the lien. When the proceeding was strictly one in equity, it may have been necessary that the judgment should specify the property against which the process should issue. Under our statutes, the suit, the judgment and the execution are in the ordinary manner of suits at law.

While, as has been seen, there has been some contest on the proposition whether a general engagement would subject the separate property of a married woman to the payment of her debts,' the principal controversy has been as to the ground upon which this liability should be placed. On this point there will probably continue to be a difference of opinion. Our statute (1860, page 197) gives to the married woman formal authority to “ enter into any contract in reference to the same.” It may also well be rested upon the principle of jus disponendi. The law gives the married woman the practical ownership of the property. She has the power of dealing with it at pleasure. She therefore has the power to bind it for the payment of her debts.

Under our decisions, the liability arises ipso facto where the debt is for the benefit of her estate. Where she incurs liability for another, there is required then the further condition that the intent to make the charge must be declared in the contract creating the indebtedness. (Yal

I do not see that the question whether the estate is legal or equitable, or whether it was received before or after 1848, has anything to do with the case. Under the English system, trustees were not indispensable. The property might be conveyed to the wife directly, and for her separate use. (2 Roper on H. and W., 229.) This would give her a legal estate. Under our laws, the married woman may take “ by inheritance, gift, grant, devise or bequest,” words implying legal estates; and when she has thus taken, she holds “ to her sole and separate use in the same manner and with the like effect as if she were unmarried.” The equitable estate of a feme sole under the old system, if that was its necessary form, defines the rights of a married woman now having control of a legal estate. Uor do I perceive how the time when she receives the estate can be important, except so far as there may be a claim by the husband or by his creditors, where the marital rights had attached prior to 1848.

Upon the whole case, the order of the General Term should be reversed, and the judgment of the Special Term affirmed, with costs.

Gray, Com.

The object of the statute of April 10th 1862 (Session Laws of 1862, pp. 244, 245), was to enable married women holding real estate as their separate property, under the authority of that and prior enactments, to manage and dispose of it without the intervention of trustees or hindrance from their husbands, and to sue and be sued in all matters having relation to their separate property. It did not remove from them any of their common law disabilities in reference to any contracts not made for their own benefit or pertaining to their separate estate. The indorsement in question was not for either, and is therefore left to be disposed of by the rules of the common law, under which her estate could not be charged as mere indorser. (Yale v. Dederer, 18 . Y., 265 ; Same v. Same, 22 id., 450.) These cases were severely litigated; in the first of which it -was held, by a divided court, that the estate of Mrs. Dederer could not be charged with the payment of a note signed by her with her husband, and as his surety. On -the second trial, parol evidence was admitted, under exception, to establish her intention to charge her separate estate with its payment ; and when the case was a second time up, this question .was considered, and was, in reality, the only one presented varying the case from what 'it was when first considered and decided. In the latter cáse Justice Selden, in delivering the opinion, held, that the court erred in admitting parol evidence to establish her intention to charge her separate estate; and we are warranted, as I think, in understanding from the report of the case, that a majority of the court held with him upon this ground alone, and would, with him, have held otherwise, if her intention was, in that case, as Mrs. Babcock’s has in this, been manifested in the writing subscribed by her. I am therefore of opinion that the estate of Mrs. Babcock was, upon a just view of the case last cited, well charged with the payment of-the note indorsed by her; and that it -should be affirmed, but so modified that the execution to be issued should be against her separate estate.

Earl, Com.

The defendant, -a married woman, is sued upon her contract of indorsement upon the back of several - promissory notes, and the most important question to be determined by us is, whether she has entered into such contract in such way as to bind her separate estate. The acts of 1848, 1849, 1860 and 1862, in reference to the rights -and liabilities of married women, authorise-a feme covert to enter into' contracts in reference to her separate business and her separate real estate, in the same manner and to • the- -same extent as a feme sole. I am inclined to believe that this contract does not come within the provisions of any of those acts. It is not a contract in her separate business, and, within the meaning of those acts, does not relate to her separate real estate. It is to be governed, therefore, by the rules of law in force in this State prior to the enactment of those acts, and a particular examination of those acts will not be necessary in the disposition of this case. Under those acts, a married woman has an absolute legal estate in her lands and other property, and it cannot wrell be claimed that she has less power to charge such estate in equity with her debts and obligations than she had to charge her equitable estate under the rules of law previously existing. (Colvin v. Currier, 22 Barb., 312.) In Yale v. Dederer (18 N. Y., 212), Judge Comstock says: “ A married woman may, as incidental to the perfect right of property and power of disposition which she takes under this statute, charge her estate for the purposes and to the extent which the rule in equity has heretofore sanctioned in reference to separate estatesand in the same ease, in 22 3ST. Y., 451, Judge Selden says that it was settled in that case, when first before the court, “ that the power conferred upon married women by these statutes to hold to their separate use, and to convey and devise all their real and personal estate, as if unmarried, carried with it the power to charge such estate substantially in the manner and to the extent previously authorized by the rules of equity in respect to separate estates.”

By the common law, the contracts of married women are always void and cannot be enforced against them. But in equity, a married woman having a separate estate has, for more than a century in England, been treated, as to such estate, as a feme sole, and capable of charging such estate in equity with all her debts and obligations. In order to effect the charge, all that was necessary was that, in contracting the debt or obligation, she should intend to charge her • separate estate. This intention might be contained in the contract,.or might be implied or inferred from circumstances. It was early hold, that whenever a married woman gave a bond, note, or any other written contract for the pay ment of 'money, without any mention whatever' of her separate estate, she must be intended to have designed a charge upon- that estate; for, otherwise, her act in-executing the instrument would be nugatory, and the instrument thus made would'have no validity or operation. And -the same rulé' -was finally extended to her -parol contracts. Só that in' England it has been settled, for a long time, that the- separate estate of a married woman is- charged with all her debts and obligations, without any express intention so to" charge it.' The intention is -always implied unless the contrary is proved'. (Hulme v. Tenant, 1 Br. C. C., 16; Murray v. Barlee, 3 My. & K., 220; 1 White & Tudor’s Leading Cases in Equity, 324.) The rule, as thus settled in England, was at•' an early-.- day substantially adopted in this State. (Jacques v. Methodist Episcopal Church, 17 John., 548 ; North Am. Coal Co. v. Dyett, 7 Paige 9; S. C., 20 Wend., 570; Knowles v: McComby 10 Paige, 343; Vanderheyden v. Mallory, 1 Com., 453.) Finally, in the case of Yale v. Dederer, a single qualification for the- first time in this State, was added to this rule. It was held, that unless the consideration of the contract was one going to the direct benefit of the estate, the'intention to charge the separate, estate must be stated in and be- part of the contract. With' this single qualification, the English rule in equity, I believe to be the law - of this. State.-

The position of a feme covert, then, in this State; in'reference to her -contracts is as follows: She is bound, like a feme sole, by all her contracts made in her separate business or relating to-lier separate estate; within the meaning of the-acts of' 1848, 1849, 1860 and 1862; and such contracts can be enforced- in law or equity, as the case may be, just as if she were a feme sole. All her other contracts are void at law, and do-not bind her personally, but may be enforced hr equity against her separate estate, provided the intention to .charge that estate be stated in the contract:

It would seem, from this summary view of- the law; touch ing -the question- under consideration, that, the contracts oí indorsement,, now before-us,-were plainly-such as to bind the separate estate of the' defendant. To . this conclusion, however, two objections are made, which must be considered.

It is said that, as the defendant is a mere surety, and her contract is void at law, it will not be enforced against her in equity. It is undoubtedly the general rule that contracts of sureties which are void or discharged at la\y will not be enforced in equity. (Ludlow v. Simond, 2 Caines Case, 1.) But that rule is applied only in cases where a surety has undertaken to. bind himself at law merely, and his cbntract was either void originally or became inoperative" by something subsequently occurring. In such a case, where there was no consideration moving to the surety, equity will not enforce his contract against his property. The contract being void at law and not binding the person of the surety, there is no ground upon which equity can execute it against his estate. This rule, however, cannot be applicable to the case of a married woman who, as surety, undertakes expressly not to bind herself at law, but to bind and charge her separate estate in equity, the other party to the contract not relying upon it as valid at law or binding her person, but simply as binding her estate in equity. The only case which I have been able to find, holding that a married woman cannot, as surety, charge her separate estate in equity by a contract void at law is Kelso v. Tabor (52 Barb., 125). That case is unsatisfactory in its reasoning and is in conflict with" numerous authorities upon the same point. (Hulme v. Tenant, supra; Heatley v. Thomas, 15 Ves., 596 ; Stanford v. Marshall, 2 Atk., 68; Pybus v. Smith, 3 Bro. Ch., 340; Vanderheyder v. Mallory, 1 Com., 462 ; Jarman v. Wilkerson, 7 B. Monroe, 293; 2 Story’s Eq., §§ 1400, 1401; Dom. Rel., 168 ; Willard’s Eq., 649, 651; Cord., § 255.) Stogy says : “ If she gives a promissory note or" an acceptance, or a bond to pay her own.debt, or if she joins in' a bond with her husband to pay his debts, the decisions have gone the length of charging it as her separate estate.” Beeves" says, that it is now well settled, “ that if she joins in a bond" with her husband, her separate property is liable to pay such bond”; and Willard says: “A wife may, as respects her separate estate, become surety for her husband.”

It is quite clear that the Court of Appeals, in the case of Yale v. Dederer, were of the opinion that a married woman could charge her separate estate as surety for her husband, provided the intention to do so was expressed in the contract; otherwise, that case could have been disposed of adversely to the plaintiff with but little discussion. Judge Selden in his opinion (22 N. Y., 458), says: “ As was shown by Judge Comstock when this case was here before, mere equity, not resting upon any positive, contract, will never seize upon the separate estate of the wife and appropriate it to the payment of a debt of the husband for which she is a mere surety; and it follows from what has been previously said, that the estate of the defendant cannot bo held liable upon this note, upon the ground that she intended to make it a charge ;■ because to make such an intent of any importance, it must be either expressed or implied in the terms, of the contract.”

It is also objected that the contracts in question are not sufficient in form to charge the separate estate of the defend ant; that is that a feme covert cannot charge her separate estate by simply expressing her intention to do so in the contract, but that she must create the charge by mortgage or pledge, or some other contract, executed according, to the forms of law particularly describing the property to be charged ; and so the Supreme Court seems to have hold in this case. There is no authority to sustain such an objection. All that was ever required in England, and, so far as I have observed in this State, was that there should be an intention to,charge the separate estate; such intention in this State to be contained, in the contract. So far from requiring the charge to be in any particular- form, describing particularly any property in England, it is not required that the contract shall in any way- mention or refer to the property; and under the case of Yale v. Dederer, where the contract is for the benefit of her separate estate, it is not necessary to refer to, or mention the separate estate in the contract; and it must be held as having .been decided in that case, that all that is necessary to create the charge in other cases, is that the intention to charge shall be contained in the contract. It has never been held that the charge should be in such form as to create a specific lien on the property; for if that were so, the liens would have to be satisfied in the order of their creation. An intention to charge is regarded as in the nature of an appointment, and courts of equity in the exercise of their peculiar jurisdiction over married women and their separate property, give effect to that intention by seizing the separate property to satisfy the charges, not in the order of their creation, but pari passu or in the order of their prosecution by the vigilance of creditors.

I, therefore, reach the conclusion • that the defendant, by her contract of indorsement, charged her separate estate in equity; and in reaching this conclusion, we violate no public policy. The law now regards a married woman as perfectly capable to manage and take care of her own property, to will, sell, give away, mortgage or pledge the same. And . still further, it regards her as capable as her husband, to carry on any business, large or small, on her own account, and to bind herself by all her contracts in that business. While this is so, it is idle to say that the policy of the law requires courts to hold any of her contracts void simply because she is a married woman. The old religi- . ous idea of a mystic union in marriage, by which “ they twain become one flesh,” and the common law notion, that by marriage, the very being and legal existence of the woman was suspended or incorporated, and consolidated with •that of her husband, have, to a large extent, become old fashioned and obsolete. The wife is now regarded by the law as competent to vindicate her own wrongs, and the recent legislation in this State, would seem to indicate that as to her separate property and business, she needed no greater or other protection than does her husband. Yet, until further legislation, courts are bound by precedents and authority, to hold that her power to make valid contracts is. still . somewhat limited.

The equitable charge thus created by the defendant, could ■ be enforced only in equity. This action, however, seems to have been -commenced and tried, and was decided as an action of law. A personal judgment was rendered against the defendant, with the other parties .to the note for money, and in this there was manifest error. She is the only party who appealed from that judgment, and the only question for us to consider is, whether the judgment was authorized as against her; and if not, what we shall do with it.

The complaint states, not as particularly as would be well, yet sufficiently, all the facts necessary to charge her estate in equity. After alleging the making, and indorsement of the notes, etc., it alleges (and this is not denied), that she is the wife of Edward Babcock, and that, at the time of making her said indorsements on said notes, she had, and still has a separate estate, and intended to charge said estate by her said .indorsements.” If the complaint had prayed against her, the proper equitable relief, instead of legal relief, it could not -well be denied that it would have been sufficient as to her. But the prayer for relief.furnislies.no obstacle. The Code (§ 275) provides, that where an answer has been interposed to the complaint, the court may grant “ any relief consistent with the case made by the "complaint, and embraced xvithin the issue.” Hence the complaint was sufficient to authorize the proper equitable relief, and was fully sustained by the admissions, and the proof. The plaintiff proved the indorsement of the notes in the manner set out in the com.plaint, and the other facts necessary to charge the defendant as indorser; and also proved that, at the time she indorsed the notes, she .owned and still owns, .as her separate estate, a house and lot situated in the city of Troy, worth several thousand dollars. I do not see what other fact it was necessary for the plaintiff to prove, to entitle it ,to equitable relief. The facts alleged were sufficient, and the facts admitted and proved were" sufficient, and the only error the referee ;committed was in-ordering -a legal-instead of :.an equitable judgment -against the defendant. -3?or this errbr, among . others, the Supreme Court absolutely reversed the judgment and granted a new trial. -I do not think this result should follow'. , It was the design of the Code to abolish-the - distinction between legal and equitable remedies. They.are now administered -in the same courts.; and it is sacrificing substance to form, more than the-policy of the law now tolerates, to turn a party out of the -very, court that is to-administer equitable relief, because he has not prayed for such relief in-his complaint, while the facts alleged and proved show him entitled to.it. (Emory v. Pease, 20 N. Y,, 62; Barlow v. Scott, 24 N. Y., 45.) In Emory v. Pease, the plaintiff commenced a legal action to recover a balance of account stated. On the trial the-Complaint was dismissed» .the court holding that the action should have been one in-equity for an accounting. The judgment entered upon this decision was affirmed-at General Term, and the plaintiff appealeo to the Court of Appeals, which reversed the judgmen t. Judge Comstock, writing the opinion of the court, while he held that the complaint -was insufficient for an action at law, as it did not sufficiently show an account stated, and that the Supreme Court was right in holding that the-action could not be maintained as an action at law-,.held that the court-should have sustained the action, or one -in equity for an aceounting.He said: “ But if an account of net profits has not -been taken according to the rule furnished by the 'agreement,-fit seems to us,-upon the facts stated,-that the plaintiff is entitled .to such an account, and then to -recover whatever sum, .if anything, shall appear to be due to him. This is probably not -the view in which the suit was -brought, nor is it-in accordance with-the prayer of the -complaint. But relief .is to be given - consistent with -the facts stated, although -it-be not the relief specifically demanded (Code, § 2/5),; and in determining whether an action will .lie, the courts are to have no -regard to the old distinction between legal and equitable .remedies. These .distinctions are -expressly abolished. A suit does not, as formerly, fail because the plaintiff has made a mistake as to the form of the. remedy. If the case which he states entitle him to any remedy, either legal or' equitable, his complaint is not to be dismissed because he has prayed for a judgment to which he is not entitled.”

Ho difficulty is caused by the presence, as parties to the action, of the- other parties to the note, who do not appeal. Ho objection to their joinder as parties was made by demurrer or answer. While they are not necessary parties in an equitable 'action against Mrs. Babcock, they are proper parties so as to have a final adjustment of the matters set up in the answer in diminution of plaintiff’s claim.

The only remaining question to be considered is the form of judgment which the referee should have ordered against the defendant, Mrs. Babcock. When the estate sought to be reached, is a strictly equitable one, a receiver must be appointed to take so much of the estate as may be necessary to satisfy the charge. A judgment in such a case, authorizing an execution, would not be appropriate; but when the estate charged is a legal estate, as all estates of married women are under the statutes above referred to, the judgment may provide for enforcing payment of the charge by execution against such estate. The Code, section 274, as amended in 1862, provides that “ in an action brought by or against a married woman, judgment may be given against her as well for costs as for damages, or both for such costs and for such damages, in the same manner as against other persons, to be levied and collected of her separate estate, and not otherwise.” A.nd section 287 provides that “ an execution may issue against a married woman, and it shall direct the levy and collection of the amount of the judgment against her from her separate property, and not otherwise.” These provisions of the Code are not confined, as lias been sometimes claimed^ to legal actions only, and there is no reason for so confining them. They purport to relate to all actions against married women, and are quite appropriate since married women held their separate property by a strictly legal title like other persons. There is no reason why resort should always he had to the cumbersome process of a receivership to enforce a charge against their legal estate; and since that amendment to the Code, courts of equity have the option to enforce the charge by means of an execution, or by means of a receivership, as will best promote in any ease the ends of justice.

1, therefore, . conclude that the proper judgment to be entered by the referee was one adjudging the amount reported due, a charge upon Mrs. Babcock’s separate estate, to be levied and collected by execution out of the same, and not otherwise; and as there is no dispute about the facts, this court should order the proper final judgment.

The order of the General Term should, therefore, be reversed, and the judgment entered upon the repeal of the referee, modified as here indicated, and, as thus modified, affirmed without costs to either party upon the appeal in either court.

Lorr, Gh. Com., and Leonabd, Com-, concurred with Hunt, Com., for reversal of the General Term and affirmance of the judgment entered upon the report of the referee.

And it was so adjudged.