
    CASHMAN v. HENRY.
    
      Court of Appeals ;
    
    
      November, 1878.
    Married Woman’s Contract.
    A married woman, as incident to her right to acquire property by puchase, may purchase property as her separate estate, upon credit, and bind herself by an executory contract to pay the consideration money.
    Her bond, note or other engagement given or entered into to secure such payment, may be enforced against her as if she were unmarried.
    Her liability upon such contract does not depend on her possession of an antecedent separate estate,  or on the question whether the contract was prudent and advantageous, or on any special circumstances, but is governed by the ordinary rules which determine the liability of persons mi juris upon their contracts.
    
    Where a grantor of an equity of redemption in mortgaged premises is not personally liable to pay the mortgage debt, his grantee incurs no liability to the holder of the mortgage by a covenant to assume it contained in the deed.
    
    S., the owner of mortgaged premises, conveyed them to 0., a married woman, by a deed containing the usual clause by which a grantee assumes a mortgage. C. conveyed the premises to H. by a deed containing a similar assumption clause. In an action to foreclose the mortgage, — Held, that C., upon accepting her deed, became liable personally to pay the mortgage, and that, therefore, H. was liable for a deficiency upon a sale in foreclosure.
    Appeal by plaintiff from a judgment of the general term of the superior court of the city of New York, affirming a portion of a judgment entered at special term in an action to foreclose a mortgage. The part of the judgment appealed from held that the defendants, Henry and others, were not liable for a deficiency upon the sale.
    In 1872, Samuel Simon executed to plaintiff a bond for $20,000 secured by the mortgage in suit. In 1873, Simon executed and delivered to Kate M. Cormac, a married woman, a deed of the premises mortgaged, containing an assumption clause in the usual form, reciting' that the premises were conveyed subject to said mortgage, which the party of the second part assumed and agreed to pay. In 1874, Mrs. Cormac and her husband executed and delivered to the defendants, Henry and others, a similar deed of said premises, containing a similar assumption clause. In the complaint judgment for deficiency was demanded against the last grantees, Henry, and others. They defended, admitting the validity of the mortgage, but denying any personal liability for the mortgage debt. On this issue the court at special term found for the defendants. An ordinary judgment for foreclosure was entered, containing, however, a provision exonerating defendants from personal liability. The plaintiff appealed from this portion of the judgment to the general term, and from its judgment of affirmance to this court.
    The plaintiff offered no evidence except the bond and mortgage, and the deeds from Simon to Cormac and from Cormac to Henry.
    
      
      Jacob F. Miller, for appellant.
    Mrs. Cormac, by accepting the deed from Simon, became personally liable for the mortgage debt (Laws of 1848, 1860, 1862; Ballin v. Dillaye, 37 N. Y. 35; Huyler’s Executors v. Atwood, 26 N. J. Eq. 504; S. C., 28 Id. 275; Flynn v. Powers, 36 How. Pr. 289; Walsh v. Powers, 43 N. Y. 26; Vrooman v. Turner, 15 Sup'm Ct. 79; Owen v. Crawley, 36 N. Y. 604; Fowler v. Seaman, 40 Id. 593; Corn Ex. Ins. Co. v. Babcock, 42 Id. 614; Frecking v. Holland, 53 Id. 425; Bodeen v. Killeen, Id. 93; Maxon v. Scott, 55 Id. 251).
    
      George C. Holt, for respondents.
    The defendants are not liable for a deficiency unless their grantor was liable (Vrooman v. Turner, 69 N. Y. 280). Their grantor was not liable, because she was a married woman (Yale v. Dederer, 18 N. Y. 265; 22 Id. 450; 68 Id. 329; Co. Litt. 3 a; Manhattan Life Ins. Co. v. Glover, 14 Hun, 153; Brown v. Hennan, 14 Abb. Pr. 394; Kidd v. Conway, 65 Barb. 158; Ledeliey v. Powers, 39 Id. 555; Knapp v. Smith, 27 N. Y. 279; Nash v. Mitchell, 3 Abb. N. C. 177; Hallock v. Delmain, 2 Sup'm Ct. [T. & C.] 350).
    
      
       S. P., Frecking v. Rolland, 53 N. Y. 422; rev’g 33 Super. Ct. (J. & S.) 499; Dingens v. Clancy, 67 Barb. 566; Harrington v. Robertson, Ct. App., Nov. 1877. Contra, Carpenter v. Tatro, 36 Wis. 297. For other recent cases, see Williams v. King, 48 Conn. 569; Bowser v. Bowser, 82 Penn. St. 57; Wallace v. Finbergh, 46 Tex. 35; Peters v. Clements, Id. 114; Lippincott v. Mitchell, 94 U. S. (4 Otto) 767.
    
    
      
       See further, Nash v. Mitchell, 3 Abb. N. C. 171.
    
    
      
       For the principles on which the liability of one assuming a mortgage depends, and the form of the covenant and its various consequences, — see Binsse v. Paige, 1 Abb. Ct. App. Dec. 138; Collins v. Rowe, 1 Abb. N. C. 98, 101; Barthet v. Elias, 2 Id. 364.
      As to discharge. Russell v. Weinberg, 4 Abb. N. C. 139; 2 Id. 422; Devlin v. Murphy, p. 242 of this volume; Ranney v. McMullan, p. 246.
      Covenant or estoppel to deny liability of mortgagor. Thayer v. Marsh, 11 Hun, 501.
      See also Fairchild v. Lynch, 42 Super. Ct. (J. & S.) 265; Kohner v. Higgins, Id. 4; Morse v. Brockett, 67 Barb. 234; Meyer v. Lathrop, 10 Hun, 66.
    
   Andrews, J.

This court, in Vrooman v. Turner, 69 N. Y. 280, affirmed the doctrine of King v. Whitely, 10 Paige, 465, — that where a grantor of an equity of redemption in mortgaged premises is not personally liable to pay the mortgage debt, and has no legal or equitable interest in such payment, except so far as the mortgage may be a charge upon the lands mortgaged, his grantee thereof incurs no liability to the holder of the mortgage by reason of a covenant on his part, contained in the deed, to assume and pay the mortgage. The grounds of this doctrine are fully stated in the opinion in the cases cited, and need not be here adverted to.

The defendants claim the benefit of the rule ; and they were, by the judgment of the court below, exonerated from liability for the deficiency arising on the foreclosure sale in this action, on the ground that Mrs. Cormac, their grantor, was not personally bound or liable to pay the plaintiff’s mortgage. The mortgage was executed to the plaintiff, in 1872, by one Simon, to secure the payment of his bond for $20,000. In 1878, Simon, the owner of the equity of redemption in the mortgaged premises, conveyed them by deed to Kate M. Cormac, a married woman, for the consideration, as expressed in the deed, of $81,000, subject to the mortgage, which the grantee, by the terms of the deed, assumed and agreed to -pay as a part of the consideration of the conveyance.

In 1874, Mrs. Cormac, together with her husband, deeded the premises to the defendants, subject to the mortgage, which they in turn assumed and agreed to pay.

It was not shown upon the trial that Mrs. Cormac, when she purchased the land, had any separate estate, or that she was engaged in any trade or business on her own account, or otherwise. The purchase comprised four city lots ; but it does not appear for what purpose they were bought, whether for use or re-sale. The finding of the court that Mrs. Cormac was not per sonally liable to pay the plaintiff’s mortgage, notwithstrading her express agreement, contained in the conveyance from Simon, was put upon the ground that a married woman has no general capacity under the acts of 1848, 1849, 1860 and 1862, to bind herself by a contract to pay the purchase price of land bought by, and conveyed to her, and that her common-law disability attaches to and makes her contract void, unless it appears that the purchase was made, and the liability incurred, in the prosecution of a trade or business, carried on by her on her separate account, and that to charge her estate in equity for the debt, there must have been an antecedent separate estate capable of being charged, and the intention to charge it expressed in the contract, or the consideration must be one going to the direct benefit of such estate.

The question presented is one of considerable importance, and not free from difficulty. The case of Yale v. Dederer, 18 N. Y. 265; 22 Id. 450, arose under the acts of 1848 and 1849, and it was determined in that case that the statutes then under consideration did not remove the common-law disability of a married woman to contract debts, or bind herself by a personal obligation, and that her engagements, in any case, could only be enforced by way of equitable charge upon her separate estate, and that such charge could only be created by an intention declared in the contract, which is the foundation of the charge, or when the contract was for the direct benefit of her estate, and it was held that her estate was not charged by the execution of a promissory note, which she had signed in the ordinary form of such a contract, as surety for her husband. The construction put upon the acts of 1848 and 1849, in Yale v. Dederer, has been followed in other cases, and the decision in that case is controlling as to the construction of these statutes, and in respect to cases coming within the same principle.

It is difficult to hold, in view of the decision in Yale v. Dederer, that, under the acts of 1848 and 1849, the contract of a married woman to pay for land purchased by her is valid, either in law or equity, or enforceable against her estate, when she receives no other benefit from the transaction than the benefit implied from the acquisition of the title to the land purchased, at least when the land purchased constitutes her entire estate. This view of these statutes does not, however, involve the injustice of allowing a married woman to obtain the title to land upon a promise to pay the purchase price, and then to hold it free from any claim or lien for the purchase-money. Upon the well-settled doctrine of equity, if her bond, or other security for the payment of the consideration is void, the land would be subjected, upon principles quite independent of any doctrine appertaining to the separate estates of married women, to a lien in favor of the vendor, for the unpaid purchase-money. The act of 1848, as amended in 1849, so far as it authorized a married woman to take by gift or grant from any person other than her husband, real or personal property, was not an enabling statute. This capacity she had at common law (Darby v. Callaghan, 16 N. Y. 71; Knapp v. Smith, 27 Id. 278). The new capacity given to a married woman by that act, was to hold the estate or property acquired by her in any of the modes designated therein, as her separate property, without the creation of a trust, or the intervention of trustees, free from the control or power of disposition of the husband, with the right to convey and devise it as if she were a feme sole.

In Huyler v. Atwood, 26 N. J. 504; S. C., 28 Id. 275, a case almost identical in its facts with this, the same question arose as to the liability of the grantees of a married woman, who, in the conveyance to them, had assumed the payment of a mortgage on the land, which she had likewise assumed in the conveyance from her grantor, to pay a deficiency arising on the foreclosure of the mortgage.

Section 3 of the New Jersey statute of 1852, relating to married women, is in nearly the same words as the same section of our statute of 1848, and the court affirmed the liability of the defendants for the deficiency, upon the ground that the covenant of their grantor to assume and pay the mortgage in the conveyance to her was valid, notwithstanding her coverture ; and the conclusion as to the validity of her covenant was reached upon the ground that the legislature, by giving to married women the capacity to acquire real estate by grant, impliedly authorized them to enter into a contract of purchase, and to bind themselves to pay the purchase-money.

The limited construction put upon our statute in Yale v. Dederer would not probably justify us in adopting, in its full extent, the view of the New Jersey court; but this court, in Ballin v. Dillaye, 37 N. Y. 36, which arose under the acts of 1848, 1849 and 1860, went very far towards holding a married woman liable on her bond, given on her purchase of land, for the payment of the purchase-money. In that case, the question was, whether the defendant, Mrs. Dillaye, a married woman, was liable on her bond for a deficiency upon a foreclosure of a mortgage executed by her to the plaintiffs. She obtained title to the premises by purchase at a foreclosure sale of a mortgage held by a bank. The plaintiffs, at the time, held a junior mortgage on the same premises, and intended, upon the sale, to bid to the extent of their mortgage. Mrs. Dillaye wished to prevent their bidding. A written agreement was accordingly executed between her and the plaintiffs, by which, in substance, the plaintiffs agreed to advance $7,000, to clear the title, and not to bid at the sale ; and she agreed to recognize their mortgage as valid, and to give them, on her purchasing the premises, her bond and mortgage on part of the premises to secure the payment of their mortgage debt and the $7,000 advanced.

Pursuant to the agreement, the plaintiffs advanced the money and refrained from bidding, and the defendant bought the premises and executed to them a bond and mortgage covering the advance and the amount of their original mortgage.

On the trial of the question of Mrs. Dillaye’s liability for the deficiency, the plaintiffs offered to prove that at the time of the transaction, she had a separate estate. There was no offer to prove, nor did it appear, that Mrs. Dillaye had any interest in the mortgaged premises prior to her purchase on the foreclosure of the bank mortgage, or that her antecedent separate estate was pledged for the mortgage debt, or had any relation to the mortgaged premises.

The special term rejected the proof offered, and held that the defendant was not liable for the deficiency, and the decision of the special term was affirmed by the general term. This court reversed the judgment, and directed a new trial.

It is a little difficult to ascertain the precise ground upon which the decision in this court proceeded. The court, in reference to the fact that Mrs. Dillaye had a separate estate, say that it was relevant and material, and in view of the offer on the trial to prove the fact, it is assumed in the consideration of the case. But I do not understand that her liability is put upon the ground that she had a separate estate at the time of the purchase ; certainly it was not put upon this ground alone. It is not perceived how Mrs. Dillaye’s liability at law, or in equity, for the deficiency, could be affected by the fact that she had a separate estate at the time of the transaction, unless it was connected by contract, or otherwise, with the property purchased. But the court seem, to hold, that as she, by the purchase on the foreclosure of the bank mortgage, acquired not only the property included in the plaintiff’s mortgage, but other lots in addition, the obligation entered into by her was for the benefit of her estate, and that her whole estate was therefore chargeable with the deficiency.

It is claimed on the part of the plaintiff, that the case of Ballin v. Dillaye decides in his favor the question now presented. Bnt, without considering whether the circumstances under which the bond in that case was given distinguish it in principle from this, I am of opinion that the covenant of the defendant’s grantee to assume and pay the Simon mortgage, was binding and valid, on the ground that under the acts of 1860 and 1862, in connection with the previous acts, a married woman may purchase property on credit, and bind herself by a contract to pay the purchase-money, and thatit is not a material circumstance in respect to her liability, whether she had any antecedent separate estate, or whether the contract, on her part, was a prudent, wise and advantageous one.

The act of 1860 greatly enlarged the civil capacity of a feme covert, beyond what was conferred by the previous legislation. By section 2 she is empowered to bargain, sell, assign and transfer her separate property, and carry on any trade or business, and perform any labor or services on her sole and separate account. Section 3 authorizes a married woman, possessed of real estate as her separate property, to bargain, sell and convey the same, or to enter into any contract in reference thereto, with the assent, in writing, of her husband, or by the authority of the court, obtained as provided in the section. Section 7 provides that she may sue and be sued in all matters having relation to her separate property, or in relation to property which might thereafter come to her by descent, devise, bequest, or the gift of any person except her husband, in the same manner as if she were sole.

Section 8 declares that the husband shall not be bound by any bargain or contract of the wife “in respect to her sole or separate property, or any property which may hereafter come to her by descent, devise, bequest, or the gift of any person except her husband or by any bargain or contract entered into by her in or about the carrying on of any trade or business under any statute of the State, or render him or his property in any way liable therefor.

The authority given to a married woman by this statute to carry on any trade or business on her own account, and to have and control her own earnings, whether living with her husband or living separate from him, worked a radical change in the pre-existing law, and it has been held by this court in several cases, that as incident to her authority under this statute to carry on a trade or business, a married woman may enter 'into any contract in respect thereto. She may purchase real or personal property on credit for the purposes of the trade or business into which she is about to enter, and bind herself by contract of payment, and also by her contracts made in the course of the business in which she engages (Bodine v. Killeen, 53 N. Y. 93; Frecking v. Rolland, Id. 423). In the case last cited it was said : “The power to carry on a separate trade or business includes the power to borrow money and to purchase upon credit, implements, fixtures and real or personal estate necessary or convenient for the purpose of commencing it, as well as the power to contract debts in its prosecution after it has been established.”

The limitation upon the power of a married woman to deal with her real estate contained in section 3 of the act of 1860, — which made the assent of her husband or the order of the court necessary to the validity of her conveyance of her lands or her contracts in respect thereto,- — was removed by the amendment of 1862, and a clause was added to the section expressly authorizing her to enter into any of the usual covenants for title in her contracts in relation to, or her conveyances of her real property, which covenants the section declares shall be obligatory to bind her separate* property.

It will be observed that these statutes confer upon a married woman the broadest and most comprehensive powers over her separate real and personal property. Her power of disposition is absolute and unqualified. She may sell or give it away. She may enter into any contract in respect to her separate real property “with the same effect, and in all respects as if she were unmarried,” and this court has held that as incident to her separate ownership she is liable for torts committed in its management, and for the fraud of her agent in dealing with third persons in respect to it (Rowe v. Smith, 45 N. Y. 230; Baum v. Mullen, 47 Id. 577). She may engage in business and incur the most dangerous, and even ruinous liabilities in its prosecution, and they will be enforced against her to the same extent as if she was unmarried. She is no longer regarded as under the tutelage of the court; but the new legislation assumes that she is capable of managing her own interests.

But it is insisted that she may not bind herself by a contract for the purchase of land if she has no antecedent estate to be benefited, or if the purchase is not made for the purposes of a trade or business. The policy of such special limitation, in view of the general scope of our statutes and the conceded power of married women to charge and dispose of tKeir property, and incur liabilities in its management, is not apparent.

In Stewart v. Jenkins (6 Allen, 300), the supreme court of Massachusetts, under a statute of that State which provides “that a married woman may bargain, sell and convey her separate real and personal property, enter into any contract in reference to the same, carry on any trade and business and perform any labor and services on her sole and separate account, and sue and be sued in all matters having relation to her separate property, &c., as if she were sole,” held that a married woman was bound by a note given as the consideration in part of a conveyance of real estate, on the ground that it was a contract in reference to her separate estate within the statute, and the court rejected as too narrow the construction insisted upon by the defendant, that the power given to a married woman by the statute to enter into a contract in reference to her separate estate was limited to the estate owned by her when the contract was made.

The section of the Massachusetts statutes considered in Stewart v. Jenkins, is very nearly like section 3 of our statute of 1860, as amended in 1862. But the intention of the legislature to confer upon a married woman the general capacity to enter into a valid executory contract to pay for property purchased by her, is indicated by sections 7 and 8 of the act of 1860, amended in 1862. Section 7 of the act of 1860 was amended by the act of 1862, by inserting the word “purchase” in the first clause of the section, so that it should read, “ Any married woman may, while married, sue and be sued in all matters having relation to her sole and separate property, or which may come to her by descent, devise, bequest, purchase, &c.,” and section 8 was amended by inserting the same word in that section, so as to embrace in the exemption of the husband, exemption from liability on the contracts- of the wife, made in respect to property coming to her by purchase.

These amendments indicate that the legislature had in view the acquisition by a married woman of the title to property by purchase, and the clear implication from the provision in section 8, — exempting the husband from liability upon the wife’s contracts or bargains in respect to property purchased by her, — is, that she may bind herself personally by such contracts ; and a contract to pay the consideration of land conveyed to her, is, I think, a contract in respect to property coming to her by purchase, within the meaning of the statute.

The conclusion is, that under the statutes, as they now exist, a married woman, as incident to her right to acquire real and personal property by purchase, and hold it to her sole and separate use, may purchase property upon credit, and bind herself by an executory contract to pay the consideration money, and that her bond, note or other engagement given and entered into to secure the payment of the purchase price of property acquired and held for her separate use, may be enforced against her in the same manner, and to the same extent as if she were a feme sole, and that her liability does not depend upon the proof or existence of special circumstances, but is governed by the ordinary rules which determine the liability of persons sui juris, upon their contracts.

The judgment should be reversed and a new trial ordered.

All the judges concurred, except Miller and Earl, JJ., who did not hear the argument.

Judgment accordingly. 
      
       Reversing, on this point, 8 Hun, 78.
     
      
       The decision in Tale v. Dederer was reiterated on a third appeal. Reported in 68 N. Y. 329.
     