
    CORN EXCHANGE INSURANCE COMPANY against BABCOCK.
    
      Supreme Court, Third District; General Term,
    
    
      September, 1867.
    Action to Charge Separate Estate.—Pleading.— Form oe Judgment.—Married Woman’s Pledge of Sepárate Estate.
    In an action to charge the separate estate of a married woman, a general judgment is not proper; but the judgment should be, in terms, limited to the specific property to be affected.
    An accommodation indorsement by a married woman, upon a promissory note, with words declaring-her intent to charge her individual property with its payment, without otherwise designating the property, is not sufficient to charge her separate estate.
    An action at law, seeking a pecuniary judgment in the ordinary form, such as would be proper on a mere personal contract, is not maintainable against a married woman, who, without consideration, and without benefit to her separate estate, and simply as the surety of her husband, has indorsed his note.
    In the absence of any consideration for the benefit of the married woman or her separate estate, a court of equity will not charge her separate estate, except in an action seeking specific relief, and upon a formal instrument specifically describing the property to be charged.
    The provision of the act of 1802 (Laws of 1862, 344, eh. 172, § 3),—empow-ering married women to contract respecting real estate, their separate property,—does not sanction a contract or charge, lacking the ordinary formalities, necessary in the case of other parties.
    The provision of the same act (§ 7),—allowing married women to sue and be sued respecting separate property as if sole,—does not change the rule that an action to charge the separate estate of a married woman must be framed as an equitable action seeking specific relief.
    Appeal from, a judgment.
    This action was "brought by the Corn Exchange Insurance Company against Stephen E. and Edward Babcock,, and Armina Babcock, the wife of the latter, upon three promissory notes.' The notes were all indorsed by Armina, in substantially the following form:
    “For value received, I hereby charge my individual property with the payment of this note.
    “Aemiha Babcock.”
    The action was in the ordinary form against makers and indorsers of a promissory note, except that the above indorsement was literally copied in the complaint, and the complaint, by amendment, alleged in Armina Babcock the possession of separate estate at the time of the indorsement, and ever since, and her intent to charge said estate by this indorsement.
    The answer denied the complaint, and set up that the indorsement was without consideration, and solely for the benefit of her husband and son.
    The plaintiffs proved that at the time the notes were executed and indorsed,. which was in 1863 and 1864, Armina Babcock was a married woman (being the wife of the defendant, Edward Babcock), and the owner of a separate estate, consisting of real property worth several thousand dollars, and that the other defendants were insolvent when the notes were given, and ever since.
    The referee found that Armina made the indorsements for the benefit of the other defendants, Stephen E. and Edward Babcock, and that she had no interest in the transaction; but made no finding that she intended to charge her separate estate. He also found that- plaintiffs took the notes before due, but upon a. pre-existing indebtedness.
    The referee gave judgment for the plaintiffs, on the authority of Barnett v. Lichtenstein, 39 Barb., 194.
    The appellant, Armina Babcock, raised by exception- a number of objections to the plaintiffs’ recovery, and also moved to dismiss the complaint, as asking a personal judgment against a married woman; as improperly joining her with the other defendants ; and on the ground that she was not liable in such an action, but only, if at all, in equity; and that there was no proof of an intent to charge her separate estate, etc.
    The judgment was the usual general judgment in an action at law for a pecuniary sum as damages (the amount of the notes), and the costs of the action.
    
      J. A. Millard, for the defendant and appellant.
    
      R. A. Parmenter, for the plaintiffs and respondents.
   By the Court.—Hogeboom, J.

In this case the learned referee gave a personal money judgment against the appellant, a married woman, in an action at law for a debt of her husband, not benefiting her separate estate, upon a note of which she was simply indorser or guarantor for him, and in the proceedingsi in which action, her separate estate was not specifically described, and to which separate estate the judgment made no allusion. The complaint was in the ordinary form against the makers and indorsers of a note, except that it described in Ticec nerba the appellant’s indorsement, and by amendment embraced the further allegation that the appellant was the wife of the defendant, Edward Babcock, “and at the time of making her said indorsement had, and still has, a separate estate, and intended to charge her separate estate by her said indorsements.”

The only proof of such intent produced at the trial was the character of her indorsement, which was as follows : “For value received I hereby charge my individual property with the payment of. this note. Armiha Babcock —and the fact that at the time she had, and still owns, as her separate estate, a house and lot in Troy worth several thousand dollars, and that her co-defendants were insolvent.

The referee does not find any such intent, nor that the indorsement was for the benefit of her separate estate ; but, on the contrary, finds that “such notes were indorsed by the said Armina for the benefit of the said Stephen E. and Edward Babcock, she having no interest in the transaction.”

Under these circumstances, I do not think this judg-. ment can be sustained, for reasons which I will proceed to give:

1. The common law disability of the wife to bind herself in any such way as is claimed to have been done by these indorsements, is conceded. A question is raised whether the writing of the appellant upon the back of the notes amounts to an indorsement; but for the purposes of this case I assume that it does. One of them is clearly so, because it directs the payment to be made to the secretary of the plaintiffs.

The disabilities attaching to coverture are not to be regarded as any.further removed than they are so by the married women’s acts of 1848, 1849, 1860 and 1862, and the question is, whether these acts justify the judgment given in this case. While they are, perhaps, to be construed liberally to promote the objects intended, it must not be forgotten that their leading object was to benefit and protect married women, and not to expose their separate estates to new and increased dangers and liabilities.

2. Prior to the acts of 1860 and 1862, it was not supposed, so far as I know (even under the acts of 1848 and 1849), that married women could" be made liable under an instrument like that now under discussion ; certainly they could not be charged personally.

In the leading case of Yale v. Dederer (18 N. Y., 265) (repeatedly before the courts), it was held that the capacity of married women to bind themselves by their contracts is not enlarged by the acts of 1848 and 1849, and that a married woman having a separate estate, . does not bind it by signing a promissory note as surety for her husband.

" This case came again, and finally, before the court of appeals, in 22 N. Y., 450, where the court reached this conclusion, that in order to create a charge upon the separate estate of a married woman, the intention to do so must be declared in the very contract which is the foundation of the charge, or the consideration must be one going to the direct benefit of the estate. The court did not decide- in what manner (otherwise than that it must be in the contract itself) this intention must be made to appear,—whether by a specific moitgage, pledge or appointment of property, specifically described, which was enforced in equity, in a direct proceeding to sell such separate estate,—as had long been the practice of courts of equity (the common law courts not assuming jurisdiction of such a proceeding); or whether a general declaration of an intent to charge, or of an actual charge upon her separate estate, without in any way describing it, was sufficient.

This decision was made in 1860, but without any reference to the act of that year, and of course without any to the subsequent act of 1862.

The act of 1860 (ch. 90, § 3, as amended in 1862, ch. 172, p. 344) empowered married women to bargain, sell, and convey such real estate as they possessed as their separate property, and to enter into any contract in reference to the same, with the like effect in all respects as if they were unmarried. I observe in the statute no like provision in regard to personal property ; but assuming that the power of a married woman was equally operative over her personal estate, one question would be whether a general judgment affecting all her property, as well as that of her husband, in which she had an interest by reason of the conjugal relation, as her own separate property,'would be proper? I think this is not answered by saying that the execu-. tion of the judgment can be controlled so as to limit its enforcement to her separate property; the judgment itself should be such as not apparently to cover or affect any property other "than that on which it is _a lawful lien. ■

. The broader and more important question, however, is, whether the authority given' to enter into any contract in reference to her real estate is practically carried out in accordance with the intention of the law-makers, by an indorsement of a note saying that she charges her individual property with the payment of the-note. If; she attempted to make a deed or conveyance of her.pro- ' perty in such a way it would be plainly illegal, and I think neither of the acts of bargain, sale, or conveyance, which in a previous part of the samé sentence she is empowered to make, would be well executed by a simple statement in writing, saying: “For value received, I hereby bargain (or sell or convey) my individual property to A. B.” It appears to me it would be rejected for indefiniteness as well as for non-compliance with the forms of law; and I am strongly inclined to think the loose and indefinite language contained in this instrument is a decisive objection to its validity. “For value received” may possibly answer, however untrue it in fact is. “Ihereby (that is upon the back of a promissory note) charge (that is mortgage, pledge, or make liable) my individual property (without describing it, without acknowledging the instrument, without recording it, without letting anybody know what' property if; covers, or whether it covers any) with the payment of this note.” If she indorsed a hundred notes to different persons in the same way, which is to have preference, according to the date they were given or according to the date when judgment is obtained? No man, I think, could legally mortgage or pledge his property in that way, and I doubt-whether any woman can.

3. But it is said we are controlled by authority on this subject which we are bound to respect. In Barnett v. Lichtenstein (39 Barb., 194) the majority of the court* went far enough to sustain the liability of the wife in ' the present case, putting it upon the' ground that the words and intent of the statute were complied with by a charge made in this way and in this general form. But Ingraham, J., dissented, holding that, according to well settled rules of courts of equity, when a wife wishes to charge her real estate as security for her husband’s indebtedness, she must do so by a mortgage or other proper charge of specific property, which is to be enforced as such. That she cannot contract a personal liability for her husband, and for his benefit, upon her note, without any consideration to herself; and that the effect of sustaining the doctrine of her liability in the case under consideration, would be to place, her in a worse condition than if sole, and to deprive her of the safeguards which the law has thrown around her to protect her property from the debts of her husband Although this is a general term decision, it was made by a divided court, and cannot claim absolute authority in a condition of the law so new and unsettled, and so much the subject of conflicting decisions. '

It is directly opposed by a still later general term decision in the fourth district, made also by a divided court (Rosecrans, J., dissenting), not yet reported, in the case of Kelso v. Tabor, where the attempt was made to recover upon the wife’s note given for her husband’s debt, and charging her estate in the same form as in the present case. Juslice Potter, delivering the opinion of the court, held, that though not in terms, yet in principle, the case was decided by the case of Yale v. Dederer, 18 N. Y., 265, and 22 N. Y., 450. That the contract of a married woman is absolutely void at law; that the statutes of 1848 and 1849 have taken from the wife no disability of her coverture, because the consideration of the contract in question has no relation to her separate estate, and the note is no conveyance of any interest therein ; that the question is not what she might do with money in hand, or by an executed instrument, under seal, in a form to bind real estate, but by an executory contract, not given for her benefit, in which she has no interest, which is void at law, and for the enforcement of which there is no adequate inducement in equity to step aside from the well established rules prevailing in that court; that the question is whether the writing which would be void at law as a contract, is made valid and binding, by a direction that the indebtedness be charged upon her separate estate ; that the action also is one at law, seeking a money judgment, and not equitable relief; and cannot succeed in that form, nor be turned into an equitable action, without violating the principles of pleading (Heywood v. City of Buffalo, 14 N. Y. [4 Kern.], 540).

I feel inclined to adopt the reasoning of the last mentioned case, rather than that of Barnett v. Lichtenstein, as more in accordance with the spirit of equity and the intent of the legislature; and to grant a new trial in this cause, substantially for the following reasons:

1st. That an action at law seeking an ordinary pecuniary judgment as upon a personal contract consummated by a judgment of that character, in the ordinary form, is not maintainable against a married woman, who, without consideration and without benefit to her separate estate, and simply as the surety of her husband, and for his accommodation, indorses his note.

2nd. That the plaintiff", having received these notes upon a pre-existing indebtedness, is not entitled to protection as a bona fide purchaser for a valuable consideration.

3rd. That as- the attempted charge upon the wife’s separate real property in this case ■ was not founded upon any benefit to such estate, or upon any matter in which she had an interest, or on account of which she had received any consideration, there is no occasion or justification for any departure from the established' principles and proceedings of a court of equity, which require, in order to make and enforce a valid charge, a specific description of the property, in the instiument creating the charge, executed according to legal ;ormalities, and enforced in equity, under a complaint seeking as relief, not a general judgment, but the satisfaction of the charge out of the specific property subjected thereto.

4th. That section 3 of the act of 1862, c'h. 172, empowering a married woman, possessed of real estate as her separate property, to bargain, sell and convey the same, and to enter into any contract in reference thereto -with the like effect in all respects as if she were unmarried, refers to such modes and forms of bargain, sale and. conveyance of real estate and contracts relative thereto as were recognized as legal, and were in conformity with the law as expounded in judicial tribunals at the time, and does not sanction a contract or charge of the kind now under investigation.

5tb. That section 7 of the act of 1862, ch. 172, authorizing a married woman to sue or be sued in all matters having relation to her sole and separate property in the same manner as if she were sole, refers mainly to her right and liability to sue and be sued without having her husband joined with her, and does not intend to confound or overthrow the rules of law or legal proceeding which theretofore obtained in regard to the essential characteristics of such actions, or the kind of relief to be sought, or the mode in which it is to be reached.

6th. That the weight of authority is against the maintenance of the action in its present form.

• I am therefore of opinion that the judgment should be reversed and a new trial granted, with costs to abide the event.

Miller and Ingalls, JJ., concurred.  