delivered the opinion of the Court:
The instrument on which suit is brought having been executed in the State of Mew York, we must resort to the law of that State to determine the nature of the obligation it imposes on the appellant. Prior to the enactment of recent statutes, and decisions thereunder, it is quite clear there was no substantial difference in the law, in this respect, in the State of New York and this State. Thus, it was held in Yale v. Dederer, 18 N. Y. 265, and 22 id. 454, that the signing of a promissory note by a married woman, as surety for her husband, merely, did not, even in equity, bind her separate estate, notwithstanding she, in fact, intended it to have that effect; and this ruling is referred to with approval and followed in Carpenter v. Mitchell, 50 Ill. 470; Williams v. Hugunin, 69 id. 214; Bressler et al. v. Kent, 61 id. 426. But in Yale v. Dederer, supra, the court went further, and held that, in order to create a charge upon the separate estate of a married woman, the intention to do so must be declared in the very contract which is the foundation of the charge, or the consideration must be obtained for the direct benefit of the estate itself; thus, by implication, holding that a charge upon the separate estate of a married woman might be created where the intention to do so is declared in the contract which is the foundation of the charge, or the consideration is for the direct benefit of the estate itself." And in The Corn Exchange Insurance Co. v. Babcock, 42 N. Y. (Appx.) 613, the Commission of Appeals so expressly ruled, and, also, that it was unnecessary that the contract should contain a description of the property to be charged. This point has never arisen for adjudication in this court, nor is it now necessary to indicate what our conclusion would be were the question one for our determination. It is sufficient, for the present, that such is the law of the place where the contract was made. In the case last referred to, a judgment was sustained, under the Hew York code of procedure—in form, a judgment at law—without indicating any property out of which it was to be satisfied; and Commissioner Hurt, in the majority opinion, says, alluding to objections to the form of the proceedings: “I have considered these points with reference to our statutes. As, in my judgment, this case comes within those statutes and the form of the action, the form of the judgment and the execution upon it are to be regulated by them. They are right, in form, under the provisions of our statutes.”
The court below held, on the authority of this case, we infer, that the obligation of appellant was valid and binding at law in the State of Hew York, and, consequently, that it can be enforced here as a legal undertaking.
It would seem that the quotation we have made from the opinion of Commissioner Hurt, itself, shows that the form of the remedy in that case was approved solely because it was authorized by the Hew York Statutes; but he again says, at page 638: “ Where the proceeding was strictly one in equity, it may have been necessary that the judgment should specify the property against which the process should issue. Under our statutes, the suit, the judgment and the execution are in the ordinary manner of suits at law.”
Earl, Com’r, in his separate opinion in the same case, at page 642, says: “The position of a feme covert, then, in this State, in reference to her contracts, is as follows: She is bound, like a feme sole, by ail her contracts made in her separate business, or relating to her separate estate, within the meaning of the acts of 1848, 1849, 1860 an.d 1862; and such contracts can be enforced in law or equity, as the case may be, just as if she were a feme sole. All her other contracts are void at law, and do not bind her personally, but may be enforced in equity against her separate estate, provided the intention to charge the estate be stated in the contract.” He comes to the conclusion that the defendant, by her contract of indorsement, charged her separate estate, in equity, and that it might, under their statutes, be reached through the form of proceeding then before the court, first, however, amending the judgment so as to require a satisfaction out of the defendant’s separate estate.
As we understand the opinion of Commissioner Hunt, he does not claim that, under the laws of that State, a married woman incurs a general indebtedness by such an instrument, but simply that she creates a charge upon her separate estate, which may be enforced by a form of proceeding like that then under consideration. The basis of the liability is, therefore, still of an equitable nature, though materially modified by statute.
In Loomis v. Ruck et al. 56 N. Y. 462, suit was brought on an instrument having the form of an ordinary promissory note, except that it concluded by charging the amount upon the separate estate of the maker, and stating that the consideration had been incurred for the benefit thereof. The defense was interposed that the signature was obtained by duress; and, in determining whether this defense could be set up against the plaintiff, who was an assignee, the court said: “ The note, so far as Mrs. Buck was concerned, was void at common law, by reason of her coverture, and it is not helped by any of the statutes of this State in respect to married women. These statutes render valid, at law, such contracts, only, of femes covert as relate to their separate estates, or are made in the course of their separate business. As to the last mentioned contracts, married women, under our statutes, stand, at law, on the same footing as if unmarried, and can, therefore, make negotiable paper, which will be governed by the law merchant; but as to other obligations; they still stand on the same footing as before the enactment of these statutes. Their contracts are void at law, but if they have separate estates, courts of equity will enforce them as against such estates. According to the late decisions in this State, an express charge upon the separate estate is required to be contained in the contract. The law merchant, which gives to the bona fide transferee of negotiable paper greater rights than those of the transferrer, has no application to this class of obligations. They are not recognized at law, and we have been referred to no authority tending to sustain the position that the transferree of an obligation of a married woman, obtained from her by fraud or duress, and against which she had a good defense, when in the hands of the original holder, can be enforced, in equity, out of her separate estate, simply because it has passed into the hands of a bona fide transferree. The rules applicable to commercial paper can not govern this case. It must be governed by the rules of equity, which, in case of equal equities, and in the absence of sufficient grounds of estoppel, give preference to the equity which is prior in point of time.”
This decision was rendered nearly four years after the announcement of the decision in The Corn Exchange Ins. Co. v. Babcock, supra, and was concurred in by all the members of the Court of Appeals, and must be regarded as conclusive that the liability of a married woman, in such cases, is purely equitable, and that what was said in The Corn Exchange Ins. Co. v. Babcock, in regard to enforcing it as a judgment at law, had relation to the form of the remedy as provided by statute in that State, only.
But the law of the remedy is no part of the contract. Wood et al. v. Child et al. 20 Ill. 209. “ When the question is settled that the contract of the parties is legal, and what is the true interpretation of the language employed by the parties in framing it, the lex loci ceases its functions, and the lex food steps in and determines the time, the mode and the extent of the remedy.” Sherman et al. v. Gassett et al. 4 Gilm. 531; Chenot v. Lefevre, 3 id. 643.
That appellant charged her separate estate with the payment of the amount of the note, by the law of New York, is beyond question, under the authority of The Corn Exchange Ins. Co. v. Babcock, supra, which the Court of Appeals, in Maxon v. Scott, 55 N. Y. 251, says must now be regarded as the established law of that State. But this is in equity only; and, although by our present statutes (R. L. of 1874, p. 576,) married women may sue and be sued, either with or without joining their husbands, and defend without regard to whether the husband shall defend or not, and judgments may be recovered against them and satisfied out of their separate estates, we still preserve the distinctions between actions at law and suits in equity; and there is no authority for suing and obtaining judgments against them in actions at law on purely equitable liabilities.
The liability of the husband, here, is at law, on the promissory note. The promissory note, as to appellant, is void at law, and the only ground of proceeding against her is in equity. She has charged her estate with its payment. It is absurd, therefore, that, still observing the distinctions between courts of law and courts of equity in administering remedies, there should be a joint judgment against them at law.
The judgment is reversed.
Judgment reversed.