Yale v. Dederer , 21 Barb. 286 ( 1855 )

Mason, J.

The rule is well settled at law, that a married woman cannot bind herself personally by any contract, in regard to her separate property, and no action at law can be maintained against her upon such contract. (Beard v. Webb, 2 Bos. & Pull. 93. Marsall v. Rutton, 8 T. R. 545. Van Derheyden v. Mallory, 1 Comst. 462.) The rule, however, is different in equity, and I will proceed to state briefly, the principles which are deducible from the cases in courts of equity, without going into an examination of the cases themselves. As regards her separate property, a married woman is regarded as a feme sole, having the general power of disposing of it. Her separate property, however, is not in equity liable for the payment of her general debts, or of her general personal engagements. If therefore, during her coverture, she contracts debts generally, without doing any act indicating an intention to charge her separate estate with the payment thereof, courts of equity will not entertain jurisdiction to compel payment of such debts out of her separate estate. (2 Roper on Husb. and Wife, 235 to 238, ch. 21, 2. Greatley v. Noble, 3 Mad. 94. Anguillor v. Anguillor, 5 id. 418. Duke of Bolton v. Williams, 2 Ves. jun. 138, 150, 156. 4 Bro. Ch. 297. 9 Ves. 498. 2 Story’s Eq. Jur. § 1398.) The separate estate will, however, in equity, be held liable for all debts, incumbrances and other engagements which she has expressly or by implication charged thereon. (2 Story’s Eq. § 1399, and cases.) There has not been entire uniformity of opinion amongst those who have administered the equity jurisprudence of Great Britain and this country, as to what circumstances, in the absence of any positive intention to charge her separate estate, shall be deemed sufficient to create such charge. It is agreed, on all hands, that there must be an intention to charge her separate estate; otherwise the debt will not affect it. The fact that the debt has been contracted during coverture, either as principal or surety for her husband, or jointly with him, seems ordinarily to be held prima facie evidence to charge her separate estate, as will be seen by reference to the following cases and authorities: (Hulme v. Tenant, 1 Bro. Ch. 16, 21, note 1. Crosby v. Church, 3 Beavan, 489. 1 Craig & Phil. 48, 52, 54, 55. 22 Wend. 526. 2 Story’s Eq. 1398 to 1400, 1401. 15 Ves. 558. 17 id. 365. 9 id. 497, note (a.) 4 Sim. 82. 3 Myl. & Rus. 209. 1 Sandf. Ch. 26. 20 Wend. 570, 15 Barb. 558. 1 Comst. 462. 4 Russ. 112, 3 Mad. Ch. 387, 79, 94. 2 P. Wms. 145. 2 Ves. sen. 193. 2 Ves.jun. 138. 9 Ves. 486. 5 Mad. Ch. 414. 2 Beav. 363, 9 Ball & Beatty, 49. 2 Roper on Husb. and Wife, 243, ch. 21, § 3. White's Eq. Cases, 324 to 344. 49 Law Lib. N. S. p. 355 to 378. Bell on Law of Prop., Law Lib. vol. 51, N. S. 513, &c. ch. 7.) These cases hold that if the wife have separate property, and joins with her husband in giving a promissory note, even as surety for him, she thereby charges her separate estate, in equity, with the payment thereof. The doctrines upon which courts of equity have attained the result that the separate estate of a married woman was chargeable in equity, where there was no intention expressed to create a charge, are somewhat artificial in their texture, and can hardly be said to be uniform or consistent. The liability, however, in such cases, of her separate property, in equity, to pay such debts, is too well settled to cavil about the consistency of the reasons by which the courts have arrived at the result. This history of the law and the result of the cases are well stated in Bell on the law of property, (Law Library, vol. 51, p. 513, &c. ch. 7.) I therefore direct that a judgment be entered for the plaintiff for the relief demanded in the complaint, ^(a)

[Chenango Special Term, August 7, 1855.

Mason, Justice.]

(a) The following is the judgment entered in pursuance of the above decision, as approved by the court: This action having heretofore been brought on to be heard upon the pleadings and the evidence taken therein, and Henry R. Mygatt having been heard of counsel for the plaintiff, and Selah Squiers, Esq., having been heard of counsel for the defendant, and the court having duly considered the said, pleadings, evidence and arguments, it is ordered, adjudged and decreed as follows:

First. That there is justly due at this date, to the plaintiff, on the promissory note made to the plaintiff, for nine hundred and ninety-eight dollars, with interest, on the 26th day of December, 1853, by the defendants Nicholas A. Dederer and Eliza Ann Dederer his wife, the sum of one thousand one hundred and ten dollars and seventy-two cents, and that the same be declared an equitable lien upon the personal and real separate estate of the said Eliza Ann Dederer, and that the personal estate be first applied to the payment thereof, and if not sufficient for that purpose, then the real estate.

Second. That the said Eliza Arm Dederer, by joining with her said husband in the said promissory note, charged her separate estate with the payment thereof, and that the said one thousand one hundred and ten dollars and seventy-two cents, with interest from this date, and the plaintiff’s costs, to be adjusted by the clerk of this court, with interest thereon from the date of said adjustment, and the sum of sixty dollars in addition thereto, in pursuance of section 308 of the code of procedure, be paid from the personal and real estate of the said Eliza Ann Dederer, by the receiver to be appointed in this action,

■Third. It is hereby referred to "William N. Mason, of said county of Chenango, as a suitable referee to take an account of the separate estate, both real and personal, of the said Eliza Ann Dederer, and of the income thereof, and the situation and possession thereof, and report the same to this court.

Fourth. The said referee is hereby directed to appoint a receiver of the separate estate of the said Eliza Ann Dederer, and that said receiver, on filing an undertaking approved by the said referee, forthwith enter upon the duties of his office as said receiver; and that the said Eliza Ann Dederer assign, transfer and set over unto the said receiver, sufficient of her separate personal estate to satisfy the demand of the said plaintiff, if she have sufficient for that purpose, to bo by him, the said receiver, sold and the avails thereof applied to the payment of the said plaintiff’s demand; and that for any deficiency there may be after applying the personal estate to the payment of the said plaintiff’s claim, the real estate of the said Eliza Ann be applied to that purpose; and that the said Eliza Ann assign, transfer and make over to the said receiver sufficient of her estate to pay the residuum of the claim of the said plaintiff, to be by said receiver sold at public sale, on reasonable notice, as also the personal estate to be sold in the same way; and that the said referee is authorized to examine any parties to this suit, on oath, as to the separate estate of the said Eliza Ann Dederer, with the power to the said referee to examine any of the parties on oath, and to compel the production of books and papers.

Fifth. The said defendants are hereby restrained from transferring or encumbering in any way, the separate estate of the said Eliza Ann Dederer, or the use or increase or profits thereof, until the entire amount to be paid to the plaintiff, as aforesaid, shall be fully paid.

Sixth. That all further directions and all further questions not disposed of by this judgment (if any) be reserved until the further order of the court, and that any of the parties to this action, upon due notice, be at liberty to apply to the court, from time to time, for such further directions as may be necessary; and should the plaintiff find any insuperable obstacles in the way of reaching and applying the separate property of the said Eliza Ann to the payment of the claim aforesaid, he is at liberty to apply for such further directions as may be necessary.