By the act of 1848, for the more effectual protection of the property of married women, as amended by the act of 1849, “any married female may take by inheritance, or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise real and personal property, and any *317interest or estate therein, and the rents, issues and .profits thereof, in the same manner and with the like effect, as if she were unmarried, and the same shall not be subject to the disposal of her husband, nor be liable for his debts.”
If the lease mentioned in the complaints in these actions, which was executed by the plaintiffs to the defendants, husband and wife, for the term of five years, had been executed to the wife alone, it may be conceded that such term or leasehold interest, under the protection of the statute, might have been held by her to her sole and separate use, free from the control, disposition, or debts of her husband; but notwithstanding this statute, her covenant to pay the rent, reserved in such lease, would have been absolutely void at law; and I am not prepared to say, that the execution' of such covenant would have been, in equity, held sufficient evidence of an intention on her part to charge with the payment of the rent, real estate of hers, held by her at the time to her separate use, other than the demised premises. (See Darby v. Callaghan, 16 N. Y. Rep. 71; Yale v. Dederer, 18 id. 265.)
It appears, however, from the complaints in these actions, that the lease was not executed by the plaintiffs to the wife alone, but to the defendants as husband and wife, and that they, in and by the lease, jointly and severally covenanted to pay the yearly rent of $3500, reserved in the lease, quarterly.
The complaint in the first action asks for judgment against the husband for the amount of rent alleged to be due and unpaid, with costs. The complaint in the second action aslrs for no relief as against the husband; but the complaints in both actions severally ask judgment as against the wife, that a certain amount of rent alleged to be due and unpaid, with the plaintiffs’ costs of the action, be' made and satisfied out of certain real estate of the wife, described in the complaints, other than the demised premises, alleged to have been the separate estate of the wife, at the time of the execution of the lease by the plaintiffs, and at the time of the commencement of the action.
*318The complaint in the first action contains no allegations of fact to show' that the wife intended by her covenant to pay the rent, to charge her sole and separate-real estate with the payment of the rent, or that her sole and separate real estate should be so charged, except the allegations that she jointly and severally covenanted with her husband to pay the rent, and that she had such separate real estate, describing it.
The complaint in the second action contains this additional allegation, -(not of a fact, but rather of a conclusion of law,) that by the covenant to pay the rent, “the said Catharine did intend and undertake, and did appropriate and appoint to, and charge with, the payment of the said rent and taxes, her separate estate, at the making and execution of the said lease, as well as at the commencement of this action, consisting of,” &c., describing certain real estate.
The complaints allege that the lease was executed on the 16th day of April, 1858. The complaint in the first action alleges that the defendants, on the first of May following, entered under the lease, and had remained in possession under the lease, each to their several use and benefit. The complaint in the second action alleges that the said Catharine entered under the lease on the first day of May, 1858, “and hath ever since remained in the possession, enjoyment and occupation of the same, to her sole, separate and several use and benefit.”
The defendants separately demur to the complaints.
Without examining the other grounds of demurrer on the part of the wife, I think the demurrer is well taken in both actions, on the ground that the complaint does not state facts sufficient to constitute a cause of action against her.
As I have before intimated, had the lease been executed to the wife alone, I should not, without a good deal further examination, be prepared to hold, on the allegations contained in either of these complaints, that her separate property sought to be charged, should be charged with the payment of the rent of other premises so demised to her. But as the lease *319was in fact to her and her husband, I can see hardly a pretense for so holding.
The lease being to her and her husband, I do not think that the acts of 1848 and 1849, for the more effectual protection of the property of married women, affect the question.
By the very terms of the lease, irrespective of the common law marital rights of the husband to and over the chattels real of which the wife is or may be possessed during the marriage, and of the principle of the common law, that the husband and wife being considered but as one person at law, cannot take or hold either as joint tenants or as tenants in common, the plaintiffs in the lease did not grant or convey to the wife, and she did not and could not take,- and had no right to hold the demised premises to her sole and separate use. Irrespective of the common law principles adverted to, she and her husband by the lease would have taken and held, to and for their joint use and benefit. The acts of 1848 and 1849 were not intended to enable married women to take and hold property jointly with their husbands, but to take and hold and dispose of property as if they had no husbands.
I do not think that the wife took,- or holds, by or under the lease executed to her and her husband, any estate or interest, which was or is protected or affected by these statutes.
The allegation under the first complaint, that the wife entered under the lease, and had ever since possessed, occupied and enjoyed, to her several use and benefit, as well as the husband to his several use and benefit, (an allegation, the meaning of which I do not profess to understand,) and the allegation in the second complaint, that the wife entered under the lease and had ever since occupied and enjoyed to her sole use and benefit, have nothing to do with the question. The question is not, which, as between the husband and wife, has in fact entered, or occupied, or enjoyed the demised premises, or the rents, issues or profits thereof, under the lease, but which had and has the right to do so, and has the right absolutely to dispose of the leasehold term, estate or interest. I repeat *320that I think the rights and interests of the husband and wife respectively, by and under the lease, and in and over the de- ' mised term and premises, are precisely what they are declared to be by the common law, and were, and are, unaffected by these statutes for the protection of the property of married women.
What then are their respective rights and interests by the common law ? If an estate in land be conveyed to the husband and wife, or a joint purchase be made by them during coverture, the common law declares that “they are not properly joint tenants, nor tenants in common, for they are but one person in law, and cannot take by moieties.” They are said to be both seised of the entirety; and the survivor takes the whole. “This species of tenancy arises from the unity of husband and wife, and it applies to an estate in fee, for life or for years.” (2 Kent's Com. 5th ed., 131, 132.) If the estate be a term for years, the husband may alien the entire term or estate, so as to bind the wife and deprive her of her right of survivorship; otherwise, if it is a freehold estate, (2 Kent’s Com. 132. Grote v. Locroft, Cro. Eliz. 287. Jackson v. McConnell, 19 Wend. 175. Barker v. Harris, 15 id. 615. Dias & Burn v. Glover, 1 Hoffman’s Ch. Rep. 71.) Whether the estate is a term for years or a freehold estate, the husband tabes the rents and profits during the joint lives. of husband and wife.
It would appear, therefore, that at common law, all the right or interest which the defendant Mrs. G-ori took, or has, by or under the lease executed by the plaintiffs, was, and is, a mere right of survivorship in case her husband should die before the expiration of the term, without having disposed of the entire term, and of all the estate and interest granted by the lease.
In view of these rights of the defendants, as husband and wife, and as lessees, by the lease executed by the plaintiffs, thus fixed by the common law; of the husband’s absolute right of disposition of the entire term; of his solé right to the rents and *321profits during the entire term, if he survives the term; of the remote probability of the wife’s ever having any right of sole possession and enjoyment, depending not only upon her surviving her husband and the term, but upon the husband’s never exercising his absolute right of disposition of the term— what ground is there for holding that the wife, by her covenant to pay the rent, intended to charge her separate estate? or that her covenant or its fulfillment was, or would be, on her own account, or for her own benefit, or for the benefit of her separate estate P
At law, and I think in equity, bn the facts stated in the complaints in these actions, the covenant with the plaintiffs to pay the rent, at least during the life of the husband, must be considered as the sole covenant of the husband: and the
rent due and unpaid, the payment of which is sought to be enforced by these actions, must be considered as the sole debt of the husband.
The utmost that can be claimed on the part of the plaintiffs is, that the wife by her covenant in effect became surety for her husband.
The allegation in the second complaint, that the wife, by her covenant, "did intend and undertake, and did appropriate and appoint to and charge‘with the payment of said rent,” her separate .estate at the time described in the complaint, adds nothing to the equity of the plaintiffs’ case. It is only an allegation of a conclusion of law. Ho other mode, or manner, or instrument of appointment, or charging, than her covenant to pay the rent, is alleged or pretended in the complaint.
That she intended to charge her separate estate is, I think, even disproved by the facts and circumstances of the case.
In any view of these complaints, it appears to me that neither contains any cause of action against the wife, nor any ground for the relief asked, as against her separate property. (See Yale v. Dederer, 18 N. Y. Rep. 282, 3; Gardner v. Gardner, 22 Wend. 526; 2 Sandf. Ch. Rep. 287; Goodall *322v. McAdam and wife, 14 How. Pr. Rep. 385; Dunderdale v. Grymes, 16 id. 195.)
The defendant Mrs. Grori must have judgment on her several separate demurrers with costs, with liberty to the plaintiffs to amend their complaints on payment of costs.
The defendant Ottaviano Grori’s separate demurrer to the complaint in the first action, I think, should be overruled. He demurs upon the grounds that there is no cause of action stated in the complaint against him; that several causes of action have been improperly united; and that there is a defect of parties defendant. There is a good cause of action stated in the complaint in the first action against him. The complaint alleges his covenant to pay the rent; that the rent is due and unpaid; and asks judgment personally against him for the amount thereof. Having just held that there is no cause of action against the wife, in the complaint, nor in rem as against her property, it follows that there is only one cause of action stated in the complaint, and that is the one against him. Besides, I am not prepared to say, that had there been sufficient grounds for equitable relief stated in the complaint as against her property, he could have availed himself of the misjoinder of the actions, by his separate demurrer. Mor do I think that by his separate demurrer he can avail himself of the fact that the complaint contains no cause of action against his wife, or of the fact that she was improperly made a party.
The complaint in the second action asks for no judgment or relief whatever against the defendant Ottaviano Grori. The plaintiffs could not, by default or otherwise, obtain any judgment against him in the second action. On the theory that the plaintiffs were entitled to the equitable relief asked for in the complaint, as against the property of the wife, he was properly made a party, (Code, § 114.) Yet he demurs separately to this complaint, upon precisely the same grounds on which he demurred to the complaint in the first action. I do not think he had a right to demur separately to the com*323plaint, on the ground' that it contained no cause of action against him. It does not purport to contain any cause of action against him, hut only a cause of action as against his wife and her separate property. He might have joined with his wife in her demurrer, but having demurred separately, I think his demurrer must be overruled. In my opinion, he cannot, by his separate demurrer, avail himself of the fact that the complaint in the second action contains no cause of action, either against him or her, or in rem, as against her separate property.
[New York Special Term, April 2, 1860.This demurrer to the complaint in the second action must be overruled with costs; .but the plaintiffs can have no judgment on the demurrer, except for costs.
The plaintiffs must have judgment, on Ottaviano Gori’s demurrer to the complaint in the - first action, against him with costs; with liberty for him to amend in twenty days, on payment of costs.
Sutherland, Justice.]