ON PETITION FOR REHEARING.
STEWART, J.The respondent files a petition for a rehearing and contends, first, that the note sued on was not a contract for the use and benefit of Julia Murphy; second, that the mortgage was not a contract with reference to her separate estate. This court fully considered these questions in the principal opinion. We now add, that a contract made by a married woman, by which she secures property for which the contract is executed, is for her own use and benefit, and that such use and benefit is a fact resulting from the contract itself.
Where it appears, as it does in this ease, that a married woman purchases property and receives such property, and executes a promissory note therefor, she is liable upon such note, and the contract is made for her own use and benefit, because she receives the consideration for which such note was made. It is not necessary that a party selling property to a married woman shall pursue the property after it is delivered to her, and ascertain whether or not the same ultimately results in a benefit to her personally, or proves a profitable investment. The fact of making the contract and receiving the consideration therefor is sufficient to create a liability on the part of a married woman, and she may be held personally liable on such contract. Second, the mortgage was executed by her, on property which it is admitted was her separate estate. That she may make such a contract and bind her separate estate would seem to be no longer in doubt in this state. (Authorities cited in principal opinion.)
Counsel for respondent in his petition for rehearing relies with much confidence upon the case of Jaeckel v. Pease, 6 Ida. 131, 53 Pac. 399. In that case, Pease and wife jointly executed a promissory note for the debt of the husband *221and executed a mortgage upon community property as security therefor. Suit was brought upon said note, and for a foreclosure of the mortgage. The trial court held the mortgage void because of a defective acknowledgment, but rendered a personal judgment against Pease and wife. Mary A. Pease, the wife, appealed, and this court held that a personal judgment could not be sustained against her, for the reason that the debt was a debt of the husband. In that case the debt was not contracted by the wife, nor for her use or benefit, nor did she receive the consideration, nor with reference to her separate estate.
In the case at bar it clearly appears that the contract was made for the use and benefit of the wife and with reference to her own separate estate. It would seem that the case of Jaeckel v. Pease would be clearly distinguishable from the case at bar. In the principal opinion this court does not depart from the well-recognized rule which has been adopted in this state, that in order to charge the separate property of the wife, or render it liable to levy and sale, it must be alleged in the complaint and proven on the trial that the debt was incurred for the use and benefit of her separate property, or was a contract by her for her own use and benefit. It is specifically alleged in the complaint in this case “that the note was given and the indebtedness of said Mrs. Julia Murphy evidenced thereby was incurred for the use and benefit of the separate property of said Mrs. Julia Murphy, and was contracted by her for her own use and benefit. ’ ’ The facts as proven upon the trial clearly show that this allegation was proven by the evidence; she made the contract personally, and received the goods for which the note was given; and executed the mortgage upon her own personal estate as security therefor. The note was executed for her own use and benefit, and was clearly such a contract as she had authority to make. The mortgage was upon her own separate property and with reference thereto, and she had power and authority to make and execute the same.
Counsel argues next that the mortgage was invalid, for the reason that it covered the separate property of a married *222woman, and required that she and her husband both join in its execution, as provided, in sec. 2921, Rev. Stat. The estate Mrs. Murphy had in the property mortgaged was not a homestead as contemplated in sec. 2921, supra. The estate was one set aside for the benefit of the family and bestowed by the beneficence of the law. The interest, however, which Mrs. Murphy mortgaged was such interest as might come to-her under the law of succession by reason of being an heir to her deceased husband. This interest, whatever it might be, is not a homestead, and the law does not require that her husband join her in the execution of the mortgage of the same.
The mortgage cannot in any way interfere with the rights of the family to occupy said property as a home. This is very clearly set forth in the principal opinion. No reason appearing for granting a rehearing, the same is denied.
Ailshie, C. J., and Sullivan, J., concur.