First National Bank of Canandaigua v. Garlinghouse

| N.Y. Sup. Ct. | Dec 7, 1868

E. Darwin Smith, J.

The order at special term, setting aside the judgment in this action, was made and based, as appears from the opinion of the learned judge then delivered, upon the express ground that a married woman could not confess a judgment. This was undoubtedly so, at common law. (Brittin v. Wilder, 6 Mill, 242. 3 T. R. 151. Watkins v. Abrahams, 24 N. Y. Rep. 72.) The reason for this rule at common law is quite apparent. A married woman was under disability, like an infant. She could not confess a judgment, because she could not appoint an attorney. She could not sue or be sued alone, at law. She could not make a valid personal- contract. She had no separate legal estate. Ho judgment could be given against her in personam.

These disabilities doubtless remain, except so far as they have been removed by modern legislation.

The acts of 1848 and 1849 took away the rights of the husband in respect to the wife’s personal property, converted her separate equitable estate into a legal estate, and allowed, her to take property by inheritance, gift, grant, devise or bequest from any person other than her husband, and to receive the rents and issues of her separate property, and to sell, devise and convey such property in the .same manner and with like effect as if she were unmarried, and exempted such property and its proceeds from all liabilities for the debts of the husband. In no other respects did these acts take away the common law disabilities of coverture. The property of married women, after the passage of these acts, remained in her hands, subject -to the control of the courts, in -equity, and the courts of equity alone, precisely as the same stood before their enactment. But the act of 1860 goes much further. Section two of that act authorizes a married woman to bargain, sell, assign and transfer her separate personal property, and carry on any trade or business, and perform any labor or service, on her sole and separate account; and declares that the earnings of any married woman from her trade, business, labor or service, shall be her sole and separate property, and may be used and invested in her own name.

As under this act, any married woman may engage in and carry on any kind of business, in the same manner as if she were unmarried, or as any man can do, she is thereby necessarily relieved of her disability as a married woman, so far that she may make any valid contract for,the sale or purchase of property, and in the borrowing or loaning or investing money for her separate use or benefit, as much as if she were a single woman. Her contracts in respect to her separate property or trade and business, are valid and legal contracts, as much so as if made by her husband on his own account.

To give her the full benefit of these provisions, in respect to her separate estate and to the carrying on of any trade or business, section 7 of said act, as amended in 1862, further provides that “ any married woman may, while married, sue and be sued in all matters having relation to her sole and separate property, or which may hereafter come to her by descent, devise, bequest, purchase or the gift or grant of any person, in the same manner as if she were sole.” While, as Judge Porter says, in Owen v. Cawley, (36 N. Y. Rep. 603,) the antecedent disabilities of a married woman, arising from the conjugal relation, were not wholly removed, they were necessarily so far modified as to secure to her. the beneficial enjoyment of the new interest She was permitted by law to acquire. The cases of Yale v. Dederer, (22 N. Y. Rep. 450;) Ballin v. Dillaye, (37 id. 35,) and others, hold that she may contract debts now, in respect to her legal or separate estate, precisely as she could have done for the benefit of the estate before those acts, and that such debts are valid legal debts, and the estate is legally liable for such debts.

Upon the face of the confession of judgment in this action it appears, and the fact is verified by the oath of the defendant, that said judgment was confessed for the following cause of action: “ That on the 13th day of January, a. d. 1868, I, the said Martha A. G-arlinghouse, executed and delivered to the said First National Bank of Canandaigua a promissory note dated on that day, for the sum of seven thousand five hundred dollars, payable sixty days after date, at said bank. Such note was given by me for that amount of money loaned to me that day by the said bank, and is now wholly due and unpaid.” The judgment was confessed on the 16th of March, when this note fell due, and there is annexed to it a stipulation, signed by the plaintiff, giving time for the payment of said debt, and also for the further loan of $1000 for the purpose of purchasing new stock in her trade and business, and for no other purpose. It also clearly appears from the affidavits used on this motion that the defendant, at the time .of the confession of said judgment, and for several years immediately previous thereto, was engaged in carrying on a separate business, in her own name, at the village of Canandaigua, of manufacturing and selling spirituous liquors. That she had done a large amount of such trade and business, and kept a bank account with the plaintiffs’ bank, and that the said money was there placed to her account, in said bank, an.d the same was drawn out by her and used and employed by her in carrying on her s.aid separate business; that she had a separate legal real estate; and that said judgment was confessed, to give the plaintiffs a lien thereon for the money so loaned to her.

It thus clearly appears that this judgment was confessed to secure a loan of money made to thé defendant to enable her to carry on her separate trade and business, and to get time for the payment of such loan and further' advances ; and this makes the debt one for which, within the express letter of section 7 of the act of 1860, as amended in 1862, the defendant could clearly be sued, in the same manner as if - she were sole. If she were a sole woman she could unquestionably confess a judgment for debt, as well •as a man, and it would be a valid judgment, at law.

But under the act of 1862, whatever may have been the construction of the acts of 1848, 1849 and 1860,.a judgment' in personam may now be rendered against a married woman, in such case and for such cause. Section 7 of the act of 1862, is as follows: “A married woman may be sued in any of the courts of this state, and when judgment shall be recovered against a married woman, the same may be enforced by execution against her sole and separate estate, in the same manner as if she were feme sole.” This makes her separate property subject to execution at law, the same as if she were sole, for she may be sued in law courts. having no equity jurisdiction, which clearly could not have been done prior to the acts of 1860 and 1862. (Barton v. Beer, 35 Barb. 78. Morrell v. Cawley, 17 Abb. 76. Klen v. Gibney, 24 How. 31.)

It seems to me, therefore, that the necessary effect and intent of the act of 1862, following and amending the acts of 1849 and 1860, is to remove all the disabilities of coverture, so far as to enable a married woman to hold separate property and to carry on trade or business, and make all the ordinary and incidental contracts relating thereto, and to. be sued in respect to such" contracts, in all respects as though she were unmarried. I cannot see, therefore, why she may not give a security for a debt contracted for her use and benefit, by a judgment confessed, as well as by a judgment obtained in invitum; as much so as if she were a man or a sole woman.

The confession of a judgment is but one of the ways and processes — one “manner”—by which a person is sued. It is a voluntary submission to the jurisdiction of the court, giving by consent and without the service of process, what could otherwise be obtained by summons and complaint, and other formal proceedings. A person who confesses a judgment submits to be sued in that form and manner. The right to sue and be sued implies the right to use and employ, and to be subjected to, all the processes by which the judgments of courts are obtained.

I can see, therefore, no reason why a narrower construction of these acts, and the rights conferred by them, should be adopted. A married woman, in respect to her separate property, is placed by these acts upon the same plane with her husband, or any other man. It was clearly the intention of the legislature, I think, to liberalize the law in respect to her, and give her all the rights, and subject her to all the liabilities, of single women, in respect to her separate property and any trade or business in which she might engage. The right to confess a judgment is one of these rights. It may be quite-essential to her interest to be able to give such a security to a creditor, as it obviously was in this case. "When she is expressly authorized “to sue and be sued in the same manner as if she were feme sole,” she is. impliedly authorized to use the requisite and ordinary agencies of suing and being sued; that is, to appoint an attorney for that purpose; and when, superadded to this removed disability, she is authorized also to contract debts in her own name, for her separate use and benefit, and is subjected to a judgment in personam, all the reason which existed at common law why she might not confess a judgment in those cases where she might be sued, is removed, and she stands, in that particular, on the same ground as if she were unmarried in fact.

[Monroe General Term, December 7, 1868.

But if this were doubtful, I think it quite clear that this court is not bound to set aside such a judgment. The courts of England, at common law, refused to set aside a judgment confessed by a married woman when she lived by herself and acted as a feme sole. (1 Salk. 400. Graham, 772.) And this court has held, in a well considered case, (Knickerbacker v. Smith, 16 Abb. 241,) a case where the judgment was entered up in 1858, that the court was not bound to set aside a general judgment against a married woman, upon her mere motion for that purpose.

I think the order setting aside the judgment in this case should therefore be reversed.

Jambs 0. Smith, J., concurred.

Johnson, J., dissented.

Order reversed.

E. Darwin Smith, Johnson and James 0. Smith, Justices.]