
    SEXTON a. FLEET.
    
      New York Common Pleas; Special Term,
    January, 1858.
    Actions to charge separate Estate oe Married Women.— Requisites oe Complaint.
    A complaint seeking to charge the separate estate of a married woman with her debt, is bad upon demurrer, if it does not set forth the property which it is sought to reach, and the nature of her interest in it,*
    ' * To the same effect is the dissenting opinion of Wright, J., in Dickerman v. Abrahams, 21 Barb., 651. For the proper form of complaint in such an action, and the proper demand of relief, see Abbotts’ Forms of Pleadings, 85, Form No. 56, and notes.
    
      Such a complaint does not disclose a case upon which the court could give any equitable relief.
    Demurrer to complaint.
    This was an action brought against Samuel Fleet and Catharine his wife, upon her guaranty of a promissory note made by her husband. The complaint alleged that on July 28, 1857, the defendant Catharine made an instrument in writing (indorsed upon the back of the note in question), whereby in consideration of one dollar she guarantied the payment of the note, and that the note so indorsed, &c., was delivered, &c. It further alleged non-payment, protest, and notice to the defendant Catharine. The remaining allegations were as follows:—“ That at the time of the making of the note and guarantee aforesaid, the said defendant Catharine Fleet was and still is possessed of certain property and real estate in her own right, and as her separate estate and property; and that the said note was given by the said defendant Samuel Fleet in payment for services performed towards the erection of certain buildings upon premises owned and belonging to said defendant Catharine Fleet in her own right, and as her separate estate and property; and that the guarantee aforesaid was accepted on the credit of the said separate estate and property of the said defendant Catharine Fleet; and that the further consideration therefor was the services performed upon the said property.”
    
      \ The relief demanded was, that the debt be declared a charge upon the separate estate of the wife ; that the plaintiff be paid the amount, with interest, &c.; that a receiver be appointed for that purpose; that the separate property be sold under the direction of the court, and the plaintiff be paid, &c.
    The defendants demurred, assigning as grounds,—1st, that the defendant Catharine Fleet was improperly joined as defendant ; 2d, that the complaint did not state facts sufficient to constitute a cause of action.
    
      H. P. Townsend, for the plaintiff.
    
      John Moody, for the defendants.
   Daly, J.

This complaint is defective. It alleges that the defendant Catharine Fleet was and still is possessed of certain property and real estate in her own right, and as her separate estate and property, and prays that the debt, for the recovery of which the action is brought, may be decreed and declared a charge upon her property and separate estate; that the plaintiff may be paid the amount of his debt out of the same, together with his costs, and that a receiver may be appointed for that purpose ; and that her separate property may be sold under the direction of the court, and the plaintiff’paid out of the proceeds of the sale.

To enable the court to give the equitable relief asked for, the complaint should set forth the property upon which the debt is to be declared a charge, and which is to be applied in payment of it. In actions of this description, the court can make no personal decree against the wife. (Rogers v. Ludlow, 3 Sandf. C. R., 109 ; Cobine a. St. John, 12 How. Pr. R., 333 ; 2 Story's Eq. Jur., 629, § 1397-1400.) The proceeding is in rem (Ashton v. Aylett, 2 Mylne do G., Ill), the object being to reach her separate estate, which she may be presumed to have charged by appointment with the payment of the debt (Vanderheyden v. Mallory, 1 Comst., 452), or, at least, so much of it-, as will be sufficient to satisfy the plaintiff’s claim. As creditors,” says Lord Cottenham in Owens v. Dickenson (1 Craig & Ph., 48), “ have not the means at law of compelling payment of such debts,' a court of equity takes upon itself to give effect to them, not as personal liabilities, but by laying hold of the separate property, as the only means by which they can be satisfied.” The property, therefore, which the creditor proposes to reach in equity, must be stated, and the nature of the wife’s interest in it, that the court may frame its decree in such a manner as to secure the equitable debt with as little injury to the separate estate as possible. Thus if payments are coming due to the wife out of a particular fund, the court will decree that the payments be applied to the satisfaction of the debt, if they are sufficient for that purpose, without impairing the fund, as was the case in Stuart v. Rockwell (3 Madd., 387), and North American Coal Company a. Dyett (7 Paige, 9); or if she have real estate, they will direct that the rents and profits be applied as was done in Bulpin v. Clark (17 Ves., 365). Wherever this equitable relief has been granted to a creditor, he has set forth in his bill or complaint the particular property out of which he has asked to have the debt satisfied (Vanderheyden v. Mallory, 3 Barb. C. R., 9; North American Coal Company v. Dyett,20 Wend.,570; and see all the cases collected in the English and American notes to Hulme v. Tenant, 1 White's Leading Eq. Cas., 65 Law Library, 394 ; see also Macquean on Husband and Wife, 294; 1 Daniel's Ch. Pr., 205); and where bills have been filed to enforce a charge upon the wife’s property, merely averring that she has a separate estate, without stating its character, nature, or kind, they have been dismissed. In Francis v. Wiggatt (1 Madd., 258), the bill was filed to compel the defendant and his wife to purchase an estate, setting forth that the wife had separate moneys and property of her own to a larger amount than the purchase money; but it was dismissed because it did not state the nature of the property, whether real or personal, or what power she had over it, or whether it could be made available to answer the plaintiff’s demand; and in Aylett v. Ashton (1 Mylne & C., 105) the bill was to compel a married woman to execute a lease; but the bill was dismissed because it did not sufficiently appear what interest she had in the premises she had agreed to lease.

The power to compel the application of the separate property to the payment of this debt being exclusively in equity, the decree must specify out of what property it is to be paid. If the defendants, therefore, should suffer this case to go by default, we could give the plaintiff no relief, as he has not pointed out in his complaint any fund or any particular property which the court, by its decree, could direct to be applied.

The demurrer of the defendant is well taken, as the complaint does not disclose a case entitling the plaintiff to any equitable relief, or rather upon which the court could give any equitable relief.  