By the Court.
Brady, J.The lease executed by Mrs. Buhler contained covenants on her part to pay the rent, and her estate was dependant upon those covenants. They could not be enforced against her, and the contract was void for want of mutuality of obligation. A married woman cannot make a contract except in reference to her separate estate, and the intention to charge the separate estate must be expressed in the contract, if in writing. Yale v. Dederer, 22 N. Y. Rep. 450.
In, this case there is no proof of any separate estate owned by the defendant’s wife. A married woman cannot be a lessee, for her free will is so suspended during coverture that she may plead non est factum to an action on any covenant contained in the case. For use and occupation her baron will be liable (Woodfall’s Land and Ten. 137). She may, under the acts of 1848 and 1849, take a lease which imposes no obligation by covenant to pay rent, thus leaving the chattel real uncontrolled by, and not"dependant upon, covenants. Darby v. Callaghan, 16 N. Y. Rep. 71. And under the provisions of the act of 1860 (Session Laws, p. 157), a married woman inay be bound by her contract in reference to her sole or separate business, the husband being relieved from any liability upon such obligations. Bnt in this case, the occupancy of the premises by the defendant, and his payment of the rent sometimes, which was to be paid by the covenants in the lease, amount to recognition or ratification of the contract to pay, and at all events, create an implied obligation to pay for such use and occupation.
Judgment should be affirmed.