The effect of marriage at the common law, is to vest the property of the wife in the husband — personal estate absolutely, and real estate during the continuance of the marriage. But in equity, and now by statute, the wife is capable of holding both real and personal property to her own separate and exclusive use. Incidental to this capacity, is the power of disposition; so that now, except in cases where she is restricted by the terms of the instrument under which she acquires title, the wife has the same dominion and power of disposition in respect to her separate property, as if she were unmarried.
But while, in respect to her separate property, the disability of coverture no longer exists, it still remains in respect to all her executory contracts. No personal remedy can be had against her in equity, any more than at law, upon any such contract. Her contracts are only valid, so far as they operate upon her separate estate. "Although she is still incapable of charging herself at law," says COWEN, J., in Gardner v. Gardner (22Wend., 526), "and equally incapable in equity of charging herself personally with debts, yet the *Page 279 better opinion is, that separate debts, contracted by herexpressly on her own account, shall in all cases be considered an appointment or appropriation for the benefit of the creditor, as to so much of her separate estate as is sufficient to pay the debt, if she be not disabled to charge it by the terms of the donation."
In equity, there is no difference between the separate estate of a wife, created by operation of the statutes of 1848 and 1849, relating to married women, and a similar estate created by deed or any other instrument. If it be conceded that the effect of these statutes is to vest in her a legal title, whereas before, when her interest was acquired by means of a settlement or deed, she had only an equitable estate, still, so long as her contracts are affected by the disability of coverture, the debts of the wife can only be enforced against her separate estate, however acquired, by a specific charge of such debts upon the separate estate. This can only be done in a court of equity. The principle upon which this jurisdiction is exercised is well stated by Lord COTTENHAM, in Owens v. Dickenson (Craig Phil., 48). It was there held that the engagements of a married woman ought to be enforced against her separate estate, not as the execution of a power, but as the exercise of a right of property to which is necessarily incident the power of contracting debts to be paid out of it. "Inasmuch," it is said, "as her creditors have not the means at law of compelling payment of those debts, a court of equity takes upon itself to give effect to them, not as personal liabilities, but by laying hold of her property, as the only means by which they can be satisfied." Though it is often said, that in equity the wife is regarded as a feme sole in regard to her separate property, yet it has never been supposed that even in equity she incurs a personal obligation by her engagements. There can be no proceeding against her in personam. She is regarded as a feme sole, only so far as to enable her to bind by her contract her own separate property. Upon this subject, I *Page 280 concur in the views expressed by the judges of the Supreme Court, who delivered the prevailing opinions in Colvin v. Currier (22 Barb., 371).
It remains to inquire whether, in this case, the wife has made such a contract as, by a proceeding in rem in a court of equity, should be enforced against her separate property. At the first, it was supposed that the wife could only bind her separate estate by some act creating a direct charge upon it. But inHulme v. Tenant (1 Brown C.C., 20), decided in 1778, the question was presented how far the general engagement of the wife should be executed out of her separate property. In that case, the suit was upon a bond executed by the husband and wife, for borrowed money. The principal part of the money had been borrowed by the wife herself. Lord THURLOW declared the rule to be, that the general engagement of the wife shall operate upon her personal property, and the rents and profits of her real estate; and that her trustees should be required to apply the personal estate, and the rents and profits as they might arise, to the satisfaction of such engagement. The doctrine of that case has been much discussed in the English courts of equity, but is now deemed to be settled by the decision of Lord BROUGHAM, in Murrayv. Barlee (3 Myl. K., 209). In that case, a married woman, living apart from her husband, and having a separate estate, had employed a solicitor in various transactions and had promised by letter to pay him; it was held, that the separate property of the wife was chargeable with the payment of the solicitor's bill. It is worthy of remark, in reference to this case, that the services for which the plaintiff claimed to be paid out of the separate estate of the wife were rendered for a married woman who lived apart from her husband, and not only upon the credit, but doubtless for the benefit of such estate. The single question before the court was, whether the pecuniary contract of a married woman, in which there was no reference to her separate estate, should be satisfied out of such estate. *Page 281 It was regarded as a question of intent, and the court held, that inasmuch as the wife, when she made the engagement, could not be supposed to have intended to do an idle thing, she must be presumed to have intended to satisfy her engagement out of her separate property. The charge was established, because the circumstances of the case were such as to justify the inference that such was the intention of the wife.
Thus it appears that there are two modes in which the separate estate of a married woman may be charged with the payment of her pecuniary engagement. The one, where she has, in terms and by an appropriate instrument, made such charge; and the other, where, though she has not, in making the contract, referred to her separate estate, or expressed her intention to satisfy it out of such estate, yet the circumstances of the case are such as to leave no reasonable doubt that such was her intention. What shall be deemed sufficient evidence to demonstrate such intention, has been regarded as a question of some difficulty. "The fact," says STORY, "that the debt has been contracted during the coverture, either as a principal or as a surety, for herself or for her husband, or jointly with him, seems ordinarily to be heldprima facie evidence to charge her separate estate, without any proof of a positive agreement or intention so to do. (2 Story'sEq. Jur., § 1400.) The extraordinary caution — perhaps I may say hesitation — with which this proposition is stated by the learned author, deserves to be noticed in this discussion. The writer himself adds that the proposition furnishes "a strong case of constructive implication, founded more upon a desire to do justice than upon any satisfactory reasoning."
It should be conceded, I think, that in England the decisions have gone the length of holding that where the wife, living with her husband, gives her own note or other obligation to pay her own debts, or unites with her husband in giving such a note or obligation to pay his debt, it *Page 282 shall, without any other evidence of her intention, be charged upon her separate estate. But in this state the rule has never been carried so far. The primary object in creating a separate estate and allowing the wife to hold and dispose of her separate property, independently of her husband, has been kept in view. "The wife," says the Chancellor, in Gardner v. Gardner (7Paige, 112), "may have a separate estate of her own, which estate is chargeable in equity for any debt she may contract on the credit of, or for the use of, such estate." In the same case, upon appeal, COWEN, J., says: "The better opinion is, that separate debts, contracted by the wife expressly on her ownaccount, shall in all cases be considered an appointment or appropriation for the benefit of the creditor as to so much of her separate estate as is sufficient to pay the debt." (Gardner v. Gardner, 22 Wend., 528.) The same rule is stated with still greater distinctness by the late Vice-Chancellor SANDFORD, in Curtis v. Engel (2 Sand. Ch. R., 287): "To sustain their suit," he says, "the plaintiffs must show that the debt was contracted either for the benefit of the separate estate of thewife, or for her own benefit, upon the credit of the separateestate." He adds that "whatever may have been the expressions of judges on the subject, this is the utmost extent to which the doctrine has been carried by the decisions in this state." (Dickerman v. Abrahams, 21 Barb., 551; Colvin v.Currier, above cited; Goodall v. McAdam and wife, 14 How.Pr. R., 385.) In the latter case the wife had united with her husband in signing a bond for the payment of money. The action was brought for the purpose of charging the payment of the bond upon the separate estate of the wife. After a pretty full examination of the authorities on the subject, the conclusion of Mr. Justice HOFFMAN is, that where a note or bond is signed by the husband and wife, in the absence of any evidence to show that it was given for the benefit of the wife, the legal inference is that it was for the debt of the husband, and the separate *Page 283 estate of the wife will not be charged. So, also, in The NorthAmerican Coal Company v. Dyett (7 Paige, 9), the Chancellor says: "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 with the payment of debts contracted for the benefit of that estate, or for her own benefit upon its credit." (Same Case upon appeal, 20 Wend., 570.)
The rule thus uniformly asserted by the courts of this state is, in my judgment, more equitable and more in harmony with the policy of the law which allows a married woman to hold and dispose of her property independently of her husband than the rule which has been adopted by the Supreme Court in this case. It is simply a rule of evidence. All agree that when the wife has expressly charged the payment of a debt upon her separate estate, whether it be her own debt or the debt of another, such charge is valid and will be enforced. But to hold that the mere fact of her engaging to pay money, without regard to the question whether such engagement was for her own benefit or that of her estate, is sufficient evidence of an intention to charge such payment upon her separate estate, would, in many instances, defeat the very object of allowing her to hold a separate estate. Indeed, there is much to recommend the practice, which has been adopted in some of the states, of looking into the circumstances of the case sufficiently to see that the wife will suffer no injustice before allowing a charge upon her separate estate to be enforced. (Maywood v. Johnson, 1 Hill's Ch. R., 228.) In this case it was held that the court would inquire into the propriety of an express charge, and not allow the wife to charge her estate by her own mere act and will, without evidence that it was necessary, or at least proper; and in Reid v. Lamar (1Strofhart's Eq., 27), it was held that where property was settled upon a wife to be at her "full and free disposal," it was not to be charged with a note given by her with her husband. *Page 284
The object of settlements, and the other arrangements which were resorted to for the purpose of securing to the wife a separate estate, was "to protect her weakness against the husband's power, and provide a maintenance against his dissipation." So, too, the legislature, when it declared that the property of the wife "shall not be subject to the disposal of her husband, nor be liable for his debts, and continue her sole and separate property as if she were a single female," intended, so far as it could be done by legislation, to protect her against the improvidence and misfortunes of her husband. At the common law, the power of the husband over her estate as well as her person was almost unlimited. By this statute, and before by settlements and other contrivances which were sanctioned by a court of equity, the wife is enabled to enjoy her own property independently of her husband.
This right of enjoyment includes the right of disposition. Having this power, she, of course, has the power to charge the estate with the payment of her debts. When she does this of her own free will, uninfluenced by any unfair practices, however injudicious or improvident the act, the charge must be enforced. But when her intention to create such a charge has not been expressed, and there is no direct evidence of such intention, the mere fact that the creditor is able to present a note or other obligation bearing her signature as well as that of her husband, ought not — in view of the policy of the law under which she holds her property, and her position as a wife, liable to be controlled by influences which it may be impossible to detect — to be regarded as sufficient evidence to justify the inference that it was her voluntary intention to charge the payment of the debt upon her own separate property. I think that in such a case, the equitable rule is that which has been invariably adopted in this state, which is, that where the intention to create the charge has not been expressed, and can only be implied from the fact that she has become indebted, either individually or *Page 285 jointly with her husband, it must appear that the debt was contracted for the benefit of her separate estate, or for her own benefit upon the credit of her estate, before the estate can be charged with its payment.
In the case before us there is an entire absence of any such proof. Indeed, the contrary is proved. Instead of being the debt of the wife, it is proved to be the debt of the husband. There is no evidence that the wife consented to have the payment of the note charged upon her separate estate, except such as is derivable from the fact that her signature is found upon the note. Under what circumstances, or upon what representations, or by what influences, she was induced to sign the note does not appear. I am of opinion that such a state of facts is not sufficient evidence of an intention, on the part of the wife, that the payment note should be charged upon her separate estate.
The judgment of the Supreme Court, therefore, should be reversed and a new trial granted, with costs to abide the event.
STRONG, J., expressed no opinion; DENIO and ROOSEVELT, Js., dissented.
Judgment reversed and new trial ordered.