
    Catherine Logan, Administratrix of Thomas J. Logan deceased, v. Absalom Thrift and Amanda Thrift.
    Where a married woman, prior to the passage of the act of April 3,1861, “concerning the rights and liabilities of married women,” purchased real estate with her separate property, and took a deed therefor in her own name, but the deed contained no word or clause indicating a purpose to create a separate use: Held, that primA facia she had a general and not a separate estate in the land, and that it cannot be-subjected by action against her to the payment of a note signed by her with her husband after she obtained the land.
    Appeal. Reserved in the district court of Knox county.
    The petition avers that on March 8,1855, the defendants executed and delivered to the plaintiffs intestate, their joint and several note for $242.00, payable in one year from date; that Amanda Thrift is the wife of Absalom Thrift, her co-defendant ; that at the time she executed the note with her husband, she held, and still holds, to her separate use, real estate which is described in the petition; that by the execution of the note she intended to charge its payment on her separate real estate; and that her husband was insolvent, which fact was known to the plaintiffs intestate, who received the note relying solely upon the estate of the wife for its payment. The petition prays that the lands of the wife may be charged with the payment of the note.
    The answer of Amanda Thrift admits that she is the wife of Absalom Thrift, and that she is the “ owner in her own right ” of the land described in the petition; but denies that she intended to charge her separate estate as averred in the petition; denies that her husband was insolvent; and denies that the plaintiff’s' intestate relied upon her individual solvency to secure the payment of the note.
    To this answer the plaintiff demurred. The demurrer was overruled, and plaintiff excepted.
    
      The court rendered judgment on the pleadings for the defendants, and the plaintiff appealed to the district court. The case was reserved in the district court for determination in this court.
    This court, upon examination of the case, sud suponte, ordered the plaintiff to amend the petition and make it more definite by setting out a copy of the deed under which the wife held the land sought to be charged as her separate property with the payment of the note.
    Accordingly the petition was amended by adding the averment that the wife derived her title to the land by deed, dated October 14,1854, from David B. Thrift, by which he remised, released, and forever quitclaimed to her all his interest in the land; “ to have and to hold said premises with the appurtenances unto the said Amanda Thrift, her heirs and assigns forever ; ” and by adding the further averment, that the twelve hundred dollars’ consideration, named in the deed, was paid by Amanda Thrift out of her separate property.
    
      Frank H. Hurd for plaintiff:
    The propositions we maintain are, first, a feme covert possessed of a separate estate, to her separate use, is as to it, in equity, a, feme sole, and may charge or affect it by any act or contract which would at law be binding upon her if she were unmarried, when such act or contract indicates that it is her intention to make such estate liable; and, secondly, that such intention is sufficiently indicated by her, by the ex ecution of a promissory note. It is not insisted that such an act on the part of a married woman operates either as a charge upon her separate estate, so as to constitute an equita ble lien upon it; nor as an appointment of a part of such estate to the payment of the obligation to the extent of its amount; nor merely as the exercise of the jus disponendi, which is an incident universally of the possession of property; but that it is effectual to make her separate estate liable, because being vested with it by a court of equity, and with the power to deal with it, she is held to possess the power to contract debts to be paid out of it, and equity lays hold of such estate to satisfy such debts when her purpose to that effect sufficiently appears. These distinctions should be-carefully regarded, as the points upon which we decline to insist have, at various times, been considered as the grounds upon which the doctrine we maintain rests. But in the more recent decisions they have all been rejected, and the rule is derived solely from the principle we have suggested, viz.: that as equity gives a feme covert her separate estate, equity takes it to pay those debts which she-intends when she contracts they shall be paid out of it. 2 Bouv. Law Dic. 394; 2 Corpus Juris Civilis, C. V. tit. 14, p. 318; 1 Domat. C. L. 161, 171. lib. 1, vol. ix., tit. 1, 2, 3, 4; Tullett v. Armstrong, 4 Beavan, 319; Hardy v. Van Harlingen, 7 Ohio St. 208; Parker v. White, 11 Vesey, 209, 222; Norton v. Turville, 2 P. Wms. 144; Matthewson's case, Law Rep. 3 Eq. Cas. 181; Hulme v. Tenant, 1 Bro. C. C. 16; Murray v. Barlee, 10 Eng. Ch. 209, 3 Mylne & Keene, 210; Owens v. Dickinson, 1 Craig & Phillips, 48; Lillia v. Arier, 1 Ves. Jr. 277; Peacock v. Monk, 2 Ves. 193; Lamb v. Miles, 5 Ves. 520; Jones v. Harris, 9 Ves. 486; Heatly v. Thomas, 15 Ves. 596 ; Bullpin v. Clarke, 17 Ves. 365; Stanford v. Marshall, 2 Atkyns, 68; Field v. Sowle, 4 Russell, 113; Master v. Fuller, 4 Brown, C. C. 15; In Re Pugh, 23 Eng. Law and Eq. 110; Greatly v. Horce, 3 Maddox, 49; Stuart et ux. v. Lord Viscount Kirkwall et al., 4 Maddox, 201, 389; Aguilar v. Aguilar, 5 Maddox, 252, 415; Clarke v. Miller, 2 Atkyns, 379 ; Murray v. Barlee, 4 Simmons, 95; 1 Lead. Cases in Eq. 528; Dallam v. Walpole et al., Peters’ C. C. R. 116; Imlay v. Huntington et al., 20 Conn. 147; Leaycraft v. Hedden, 3 Green. Ch. 512 ; Oakley and Briggs v. Pound et ux., 1 McArter Ch. 118; Pentz v. Lemerson, 2 Beas. 232; Helms v. Franciscus, 2 Bland’s Ch. 563 Cooke v. Husbands, 11 Maryland, 492; Chew v. Beall, 13 Maryland, 348; Woodson, Trustee, v. Perkins, 5 Grattan, 346 (1 E. L. C. 538, note—10 U. S. Dig. 256); Harris v. Harris, 1 Iredell, Eq. 111; Powell v. Cobb, 3 Jones, Eq. 456; Rogers v. Hinten, 1 Phillips, Eq. 101 (3 Am. Law Review No. 1); Block v. Cross et ux., 36 Miss. 558; Wylly v. 
      Collins, 9 Geo. 223 (1 E. L. C. 534, 537-12 U. S. Dig. 342); Fears v. Brooks, 12 Geo. 195; Maiben v. Bebo, 6 Florida, 381; Bradford v. Greenway, 17 Ala. 797; Ozley v. Ikelheimer, 26 Ala. 332; Cowles v. Morgan, 34 Ala. 537; Gunter v. Williams, 40 Ala. 561, Am. Law Rev. vol. iii. No. 2; vol. i. Eq. Lead. Cas. 537; Garrett v. Dabney, 27 Miss. 336; Levy v. Darden, 38 Miss. 57; Lillard v. Turner, 16 B. Monroe, 375; Burch et ux. v. Breckinridge et al., 16 B. Monroe, 482; Jarman v. Wilkerson, 7 B. Monroe, 293; Bell & Terry v. Keller, 13 B. Monroe, 384; Segond v. Garland, 23 Misso. 547; Whitesides v. Cannon, 23 Missouri, 457; Dobbin v. Hubbard, 17 Ark. 189; Oswalt v. Moore, 19 Ark. 257; Yale v. Dederer, 18 N. Y. (4 Smith) 278, and 22 N. Y. (8 Smith) 450; White v. McNett et ux., 33 N. Y. (6 Tiffany) 371; Ballin v. Dillaye, 37 N. Y. (10 Tiffany) 35; Gardner v. Gardner, 7 Paige, 112; North American Coal Co. v. Dyett, 7 Paige, 9; Curtis v. Engle, 2 Sandford, 286; Jacques v. M. E. Church, 17 Johns. 585; M. E. Church v. Jacques, 3 Johns. Ch. 77; Todd v. Lee et al., 15 Wis. 371; 20 Wend. 572; Powell v. Murray, 2 Edwards’ Ch. 643; Cummins & Pollock v. Williamson et al., 1 Sandford, 28; Knowles v. McCamly, 10 Paige, 346; Vanderheyden v. Mallory, 3 Barb. Ch. 15; S. C. 1 Comst. 462; Wadhams v. American Home Missionary Society, 2 Kernan, 410; L'Amoreux v. Van Rensaler, 3 Barb. Ch. 37; Ewing v. Smith, 3 Dessausure, 460; Thomas v. Folwell, 2 Whart. 11; Metcalf v. Cook et al., 2 Rhode Island, 355; Willar v. Eastham et al., 13 Gray, 328; 2 Story’s Eq. secs. 1390-1394; Hill on Trustees, 422; Schouler on Domestic Relations.
    
      W. Dunbar for defendant:
    In view of the authorities and the principles they establish,, as well as the provisions of the legislative enactments of Ohio, protecting the separate property of married women, and the answer of Amanda Thrift, denying the allegations of the petition that by signing said promissory note she-thereby intended to subject her separate estate, it seems to me that her separate estate cannot be subjected to the payment of her husband’s debts, and that judgment must be rendered for the defendant. See the act of March 23, 1866, concerning the rights and liabilities of married women. Parker v. Cleber, 37 Penn. St. 271; Caldwell v. Waters, 18 Penn. St. 79; Yale v. Derderer, 8 Smith (N. Y.), 450 4 Smith, 265; Boarman v. Groves, 23 Miss. 280; Bibb v. Pope, (Ala.) Am. Law. Reg. of August, 1869, p. 490; Broom’s Com. Law, Marg. 599, 600.
   Day, J.

The action was brought to charge the separate property of a married woman with the payment of the amount due to the plaintiff on a promissory note which she signed with her husband. It is not claimed that she is personally liable on the note, nor that its payment can be charged upon her general property. But it is claimed that, by reason of her dominion over her separate property, she may charge her separate estate with the payment of money, and that the execution of the note with her husband, in equity, had that effect.

’ Since, then, the claim of the plaintiff (if it can be maintained at all) can be sustained only as against the separate estate of the wife, as distinguished from her general property, it becomes material to determine whether the land, sought to be charged in this case was her separate property.

This question is to be determined on the case made in the pleadings, for the case was submitted upon the plaintiff’s demurrer to the answer of the wife. The answer denies the allegations in the petition, that by signing the note she intended to charge her separate property, that her husband was insolvent, and that the plaintiff relied upon her individual solvency to secure the payment of the note. She admits that she owns the land described in the petition in her own right, but makes no other admission or averment affecting the character of her title. We are left then to the facts stated in the petition to determine whether the wife had a separate estate in the land therein described.

The petition, it is true, contains an,averment that the wife holds the land as her separate property; but, as amended pursuant to the order of this court, it sets forth a copy of the deed by which it is held, with the additional averment that the consideration mentioned in the deed was paid with the separate property of the wife. The deed, at most, only purports to convey to her a title in fee-simple. It contains no word or clause indicating an intention to create or perpetuate a separate use. The averment of the wife’s separate estate in the land, it must be presumed, is based on this state of fact alone.

Does the case, then, made in the petition show a separate estate of the wife in the land sought to be charged ? It is well settled, at least as a general rule, that the distinctive character of a separate estate “ must be imparted to it by the instrument or title by which it is held.” Glidden v. Taylor, 16 Ohio St. 517. The deed is nothing more than an ordinary quitclaim or conveyance of title, without any attempt to attach to the land any characteristic of a separate estate. A claim of a separate estate cannot, therefore, be sustained upon the deed alone. Nor can it be aided by the mere fact that the land was paid for with the separate property of the wife; for the jus disponendi being an incident of her separate property, she might dispose of it as she pleased. Sch. Dom. Rel. 219. She might bestow it upon her husband, or give him the use and income thereof. Sch. Dom. Rel. 228. She might, therefore, invest it in real estate, divested of the privileges of a separate estate, and hold it in her own right, subject to the marital rights of her husband. In the absence of other facts than those conceded by the demurrer, it is but reasonable to presume that it was the intention of the wife to change her separate property into that of a general character. At all events, such is the caseprima facie.

Nor does the case derive any aid from our statutes declaring what shall be deemed the separate property of married women, for they were passed long after the rights of parties interested in this case were fixed. Jenney v. Gray, 5 Ohio St. 48; Glidden v. Taylor, 16 Ohio St. 517.

The petition, then, as it now stands, does not show a separate estate of the wife in the land sought to be charged.

But the claim of the plaintiff can be sustained only as against her separate estate, and not against her general property. It follows, that, for this reason, the defendant is entitled to judgment.

It is proper to add, that the view we have taken of the case is based on the petition as amended pursuant to the order of this court; and that it, therefore, becomes unnecessary for us to consider some of the questions ably and elaborately discussed in argument on the pleadings as they stood before the recent amendment of the petition.

Brinkerhoff, C.J., and Soott, Welch, and White, JJ.,. concurred.  