The note in suit, being the note of a married woman, is void, unless it comes within that class of cases respecting which the common-law disability of married women has been removed by statute. The note of a married woman being void at common law by reason of incapacity to make a contract, there is no estoppel, because want of legal capacity cannot be supplied by estoppel. Bank v. Buzzell, ante 189. At the time of making the note the defendant held property in her own right, consisting of land and buildings; and if the note is valid and binding upon her, it became so by reason of being a contract made in respect to her separate property. Gen. St., c. 164, s. 13. The consideration of the note was the surrender of a previous note, signed by the defendant's husband, to which the defendant was not a party and in which she had no interest. She received no part of the consideration of the original note, neither was the note in suit given in consideration of any benefit accruing or accrued to her or to her separate property. The entire contract of the defendant was embodied in the note. It was a promise to pay the debt of her husband. It was not, and it did not purport to be, a promise to pay out of her separate estate, and no representations were made by her that it should be so paid, or that could in any way connect the promise with her separate property, as the case finds that neither the payee of the note nor the plaintiffs were present when the note was signed, and that they never had any talk with the defendant about it. Upon these facts the note cannot be regarded as a contract in respect to the defendant's separate property, and none of the adjudged cases authorize a construction of the statute broad enough to include it as such. Bailey v. Pearson, 29 N.H. 77; Shannon v. Canney,44 N.H. 592; Hammond v. Corbett, 51 N.H. 311; Batchelder v. Sargent, *Page 562 47 N.H. 262; Muzzey v. Reardon, 57 N.H. 378; Read v. Hall, ib. 482; Messer v. Smyth, 58 N.H. 298.
At common law, a married woman could, by mortgage, charge her separate estate with the payment of her husband's debt. Babbitt v. Morrison,58 N.H. 419; Thompson v. Ela, 58 N.H. 490. In those cases the note of the husband was sufficient to sustain the mortgage. As the wife could make an absolute conveyance of her property in payment of his debt, so she could make a conditional conveyance of the same property as security for the payment of the same debt.
Judgment for the defendant.
Stanley, J., did not sit: the others concurred.