Todd v. Ames , 1871 N.Y. App. Div. LEXIS 76 ( 1871 )

By the Court, Johnson, J.

The debt for which the note in question was given, was clearly the debt of the husband, and the appellant in becoming a party to it was, in law, a mere surety for her husband. But in this respect the case is the same as that of Corn Exchange Ins. Co. v. Babcock,, (42 N. Y. 613.)

The terms of the promise by the appellant in this ease, are in substance and legal effect the same as in that, where it was held that the promise was binding in law, and operated to create a charge upon, and to bind, the separate estate of a married woman for the payment of the debt, and to stibject it to execution in satisfaction of any judgment which might be recovered upon the promise. That case covers, completely, the case at bar, so far as the liability upon the promise and the charge upon the separate estate is concerned. The only difference between the two cases is, that the action here is in the equitable form, and there, in the form of an action at law. But that does not affect the principle, and no objection is taken to the form of the action. It was formerly the only mode of reaching the separate estate of a married woman and enforcing a charge upon it, and the remedy has not, in terms, been taken away by any statute, though a different one seems to have been given.

It is urged, on the part of the appellant, that it is not shown by the evidence, or found by the referee, that she had any separate estate at the time she signed the note in question, which could have been charged. That question does not appear to have been litigated on the trial. But I think the report of the referee may fairly be held to embrace such finding. The note itself is éyidenee on that subject, and the referee might have found from that alone, in connection with the testimony as to the property she had in her own right at the time of the trial, that she had property which was the subject of such a charge, at the time the note was given, if that was a material fact in the case; especially as there was* no evidence to the contrary. It is not material whether it was the same property, at the time of the trial, as at the time of the making of the note. When a married woman creates a valid obligation, and makes it a charge upon her separate estate, it extends to her whole separate estate, which she may have at the time of the trial, and judgment. As long as the obligation continues, her entire separate estate is devoted to its payment and discharge; unless the lien or charge is expressly limited and confined to some specific portion thereof. (The Corn Exchange Ins. Co.v. Babcock, supra. Ballin v. Dillaye, 37 N. Y. 35. Dyett v. N. A. Coal Co., 20 Wend. 570.)

[Fourth Department, General Term, at Rochester, September 4, 1871.

The judgment is right, and must be affirmed, with costs.

Mullin, P. J., and Johnson and Talcott, Justices.]