
    MARGARET L. HOFFMAN, Plaintiff and Appellant, v. WILLIAM E. TREADWELL, Defendant and Respondent.
    
      Belief in equity by a married woman who seeks the cancellation of promissory notes made and endorsed by her for the amnwmodaMonof her husband.
    
    In the case at bar, the plaintiff, a married woman, made and indorsed five several promissory notes of five hundred dollars each, for the accommodation of her husband; one of which has been collected after judgment, an action commenced upon another, and separate actions threatened upon each of the others. She claims that she is not liable for the payment of either of these notes, and states sufficient reasons that would amount to a valid defense to any action brought against her on the same, and she prays for equitable relief.
    1. That her signature on the notes be canceled.
    2. That she be released from all liability by reason of her signature upon them.
    3. That defendant be enjoined and restrained from commencing or maintaining any action against her on account of said notes.
    On the demurrer of the defendant alleging that the complaint did not state facts sufficient to constitute a cause of agtion. Held— That although the plaintiff incurred no legal obligation by her indorsement, &c. (Phillips v. Wicks, 36 Super. Ct. 254) and has a valid defense to any action upon them, she can not relieve herself of the obligation in a court of equity. She must wait until she is summoned before a court of law, when her defense interposed will be heard, and her legal rights declared.
    Under the decisions and under the principles of equity, as adjudicated and understood, nothing appears in the facts of this case that will give a court of equity jurisdiction: The remedy of the plaintiff is perfect, and attainable in a court of law, in her answer to any action brought on these notes or any one of them.
    The demurrer sustained.
    
      Before Monell, Ch. J., and Freedman, J.
    
      Decided March 1, 1875.
    Appeal from an order sustaining a demurrer.
    In her complaint the plaintiff alleges that she is the wife of Bindley M. Hoffman.
    That under the circumstances hereafter stated she wrote her name upon the back of five several promissory notes, bearing the same date, and being for the same amount, but payable at different times.
    One of said notes is as follows :—
    “$500. Hew Yore, February 1, 1871.
    “ Twenty-one months after date, I promise to pay to the order of Mrs. Margaret B. Hoffman five hundred dollars, value received.
    j Internal Bevennej. “ M. B. HOFFMAN.
    “Ho. , dueHov. 1-4, 1872.”
    Upon the back of said note was written “ M. B. Hoffman.”
    The plaintiff then alleges that she is not engaged in any business; that her indorsement was at the request and for the accommodation of her husband, and was without consideration; that she had no knowledge that her husband intended to deliver the notes to the defendant; that she did not charge or intend to charge her separate estate; that no benefit resulted to her separate estate; that the defendant commenced an action against her in the marine court, in the year 1872, upon a note for five hundred dollars, bearing the same date as the notes herein described; that the defenses which she had thereto, as set forth herein, were not, through oversight, averred in her answer, nor presented on the trial of that action; that judgment therein was recovered and affirmed by the court of common pleas against her, and that she has paid the same.
    That the defendant has, since the commencement of this action, brought suit against her on the note for five hundred dollars fourthly described in the complaint, in which suit she has answered; that that action is still pending, and has not yet been reached for trial.
    That the plaintiff, before the commencement of the action by the defendant last mentioned, requested him to commence one action on all of the five notes herein described, and not to bring separate actions on each note; but that he declined so to do.
    That it is the defendant’s purpose to bring separate actions against her on each of the said five notes, at intervals of time, so as to increase the costs,' and to get an advantage, in subsequent actions, of the knowledge of defense and evidence she sets up and presents in the earliest one; and that he brings his actions in the marine court, in order to prevent the actions from going to the court of appeals on appeal.
    That the action upon the first note upon which judgment went against the plaintiff, as stated in section 13 of this complaint, was not tried upon the allegations made in this complaint, nor upon the evidence which plaintiff is ready and able to present on the trial of this action, and that the decision in that action has no bearing upon the cause of action herein set forth.
    That all of the six notes herein set forth and referred to, were made in one transaction, at the same time, of uniform date, and for an aggregate sum of three thousand dollars, divided only into parcels in respect to the time at which the several notes should mature.
    The plaintiff demanded judgment against the defendant:
    1. That her signature upon the said five notes, and each of them, be canceled.
    
      % That she may be released and discharged from all liability, by reason of her signature upon said notes, and each of them.
    3. That the defendant be enjoined from commencing or maintaining any action for the enforcement of the notes above set forth, or either of them, against the plaintiff, and for such other and further relief as may be just.
    The defendant demurred, alleging that the complaint did not state facts sufficient to constitute a cause of action.
    The demurrer was sustained at special term, and the plaintiff appealed.
    
      Mr. W. R. Martin, for appellant.
    
      Mr. N. Quackenboss, for respondent.
   By the Court.—Monell, Ch. J.

Upon the facts stated in the complaint, the plaintiff incurred no legal obligation by her indorsement. Being a married woman, and not binding or intending to charge her separate estate, and deriving no benefit, either directly or indirectly, from her indorsement, the plaintiff can not be held responsible upon her contract (Phillips v. Wicks, 36 Sup’r Ct. R. 254).

It is proper, therefore, to assume, that she has a valid defense to any action which may or might be brought against her to recover upon the notes. But is that, in conjunction with the other facts stated in the complaint, sufficient to sustain the present action ?

It is a principle of equity, that where no remedy to enforce a right exists elsewhere, chancery, to prevent a total failure of justice, will furnish the remedy. So if the remedy at law is doubtful and very difficult, it is equally a principle of equity, that if the remedy at law is adequate and attainable, chancery will not entertain jurisdiction.

The case before us falls within the latter principle. There is no doubt that the plaintiff can, at law, avail herself of her defenses to the notes; and unless the circumstances under which her indorsement was given, and her marital relation, give her some superior equity, she must wait until she is summoned before a court of law, before she can relieve herself of her obligation.

The judgment demanded is the cancelation of the plaintiff’s signature, and her discharge from liability which is equivalent to a cancellation of the instrument itself, but which is never done, except where the grounds upon which it is sought is such, that a court of equity alone can take cognizance of it; and the general principle applicable to all these cases may be included under one common head of equity jurisdiction, the prevention of an injury that might otherwise prove irreparable.

These common heads are carefully collected in McHenry v. Hazzard (45 N. Y. 580), but the facts stated in the complaint before us do not bring this case within any of the heads there collected; nor can I bring it under any known head of equity jurisdiction.

The attempt of the plaintiff is to avoid her contract, on the ground that she had no legal capacity to make it. She does not allege any fraud, deceit, misrepresentation, duress, or oppression, under which she made it. She voluntarily gave her signature, and probably knew that it was intended as a security for her husband’s debt, or to enable him to negotiate the paper.

There is nothing, therefore, that a court of equity can seize upon, to give it jurisdiction.

In Geer v. Kissam (3 Edw. Ch. 129), the court refused to order the cancellation of a promissory note, where it appeared there was a defense at law. The vice-chancellor says, “ the note being past due can be negotiated no further to the complainant’s prejudice. It will always be subject to the same equity and defense in the hands of any subsequent holder that it is now subject to. It is only when there is danger that a negotiable instrument improperly obtained, or which ought not to. be negotiated, will get into the hands of a tona fide holder, without notice, and for a valuable consideration, to the prejudice of the rights of the maker, that this court ought to interfere to restrain the negotiation, and to cause it to be delivered up.”

In Allerton v. Belden (49 N. Y. 373), the plaintiff, an accommodation indorser, sought the cancellation of his signature, on the ground that the note was void for usury. The complaint alleged these and other reasons for equitable relief, but the court, on demurrer, held the reasons to be insufficient, and that the remedy at law was adequate.

The want of legal capacity to make the contract in question, by reason of the marital relation of the plaintiff, does not increase or enlarge her equity.

A married woman may, for some purposes, make a valid contract. She may do so in respect to her separate estate, and in her separate trade or business.

So she may become security for another; but the intent to charge her separate estate must appear, or the consideration must move directly to the benefit of her separate estate or business. Unless one or the other of these is shown, as was early held in Tale v. Dederer (18 N. Y. 265), she incurs no liability upon her contract.

A married woman being, therefore, competent to contract in all cases, where she intends to charge or bind her separate estate, she can only successfully defend against her contract, on the ground that the intention to bind her separate estate, or that she was benefited by the contract, is not shown, and such defense can be alleged in an action brought upon the contract to enforce its obligation.

It may be desirable and convenient to end the litigation which must ensue upon an attempt to collect the notes. But it can not be done in the action now before us. A judgment was obtained upon one of the notes which the plaintiff has paid ; and she alleges a suit now pending to recover upon another. The remaining notes must soon be prosecuted, or they will be barred by the statute of limitations. And as they are all due, separate actions would be consolidated. There can not be such a multiplicity of suits as would authorize a court of equity to take charge of the litigation, even if that was a ground for interference, and the plaintiff must abide the time when she can assert her defense at law.

The order sustaining the demurrer must be affirmed, with costs.

Freedman, J., concurred.  