When this case went to the court of appeals before, there was no evidence, in the case, of an intent on the part of Mrs. Dederer to charge her separate estate with the payment of this debt of the plaintiff, except the bare fact that she signed the note with her husband as surety for him. In short, there was no evidence of an intent to charge her separate estate with the payment of the debt, except what equity would infer from the act of signing. I held, on the first trial, that the fact that she signed the note as surety for her husband furnished of itself evidence of an intent to charge her separate estate; acting upon the doctrine of some of the cases in equity, which hold that the wife must intend something by signing, and as she knew that she could create no personal obligation or liability by signing, she must be deemed to have intended to charge her separate estate in equity. (21 Barb. 286.)
The court of appeals reversed the judgment, and have certainly settled the rule that from the bare act of signing a note as surety for her husband, no such intent to charge her separate estate in equity shall be inferred, and that she does not charge her separate estate by the bare act of signing a note as surety for her husband. The case is now changed by evidence on the last trial, which not only shows that she signed the note as surety for the husband, but the evidence shows further and independent of the act of signing, that she did intend to charge her separate estate, and did charge it with the payment of this debt, if any verbal agreement or understanding between *532her and the plaintiff to that effect can charge it. This brings us to the real question in the case: Can a married woman, by signing a note as surety with her husband, intending thereby to charge her separate estate, and agreeing verbally or by parol that her separate estate shall be charged, bind her estate, in equity, to the payment thereof ?
The court of appeals did not decide this question against the plaintiff, when the case was before that court on the former appeal. Judge Comstock admits that when a married woman holds the fee of lands, under the acts of 1848 and 1849, she may charge it. He says, (18 N. Y. Rep. 272,) “ My conclusion therefore is, that although the legal disability to contract remains as at common law, a married woman may, as incidental to the perfect right of property and power of disposition which she takes under the statute, charge her estate for the purposes, and to the extent, which the rule in equity has heretofore sanctioned in reference to separate estates.” It was admitted on the last trial that Mrs. Dederer is the owner in fee simple absolute of the real estate charged in the complaint herein as her separate estate, and that she became seised thereof in fee subsequent to the acts of 1848 and 1849 ; and Judge Harris, at page 281, speaking of this very case, says that a married woman will charge her separate estate “ when the circumstances of the case are such as to leave no reasonable doubt that such was her intention.” He says again, at page 283, “ It is simply a rule of evidence. All agree,” he adds, “ 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.”
He regards the right of enjoyment of separate property as necessarily including the right of disposition, and the power of disposition embraces the power to charge her estate; and he adds, “ when she does this of her own free will, uninfluenced by any unfair practices, however injudicious the act, the charge must be enforced.”
Applying these principles to the case before us, there can be *533no doubt of the defendant’s liability, in this case. This certainly is no new doctrine in regard to the power of a married woman in equity over her separate property. It is the clear and uncontroverted doctrine of the court of chancery in England and of the courts generally in this country, and, as I understand, is the acknowledged doctrine in equity of the courts of this state. The courts have not differed over the question of her capacity in charging her separate estate, where the evidence shows that there was no doubt in regard to her intention to charge it. The difficulty seems to have arisen as to what shall be deemed sufficient evidence to establish such intention ; and upon this question the court of chancery in England has gone further than the courts of this state. The decisions in England have gone the length of holding, that where the wife unites with her husband in giving such a note or obligation to pay his debt, it shall, without any other evidence of her intention, be charged upon her separate estate; and such is the doctrine of many of the state courts of this country. The court of appeals has said in this very case, such is not the rule with us. They have not decided, however, that where it is shown by extrinsic evidence, that she actually intended to charge her separate estate, by signing with. her husband for his debt, she does not charge her separate estate. Such a doctrine cannot be held without denying to her the power in equity of disposing of her separate property—a power which has hitherto been universally conceded to her. She certainly can be no longer regarded as a feme sole in equity, as regards her separate property, if this doctrine is to prevail.
[Broome General Term, May 8, 1860.I am of opinion, for the reasons stated, that the judgment of the special term should be affirmed.
Parker, J. concurred.
Campbell, J. dissented.
Balcom, J. took no part in the decision, having been counsel in the case.
Judgment affirmed.
Mason, Balcom, Campbell and Parker, Justices.]