
    Hershizer v. Florence.
    1. A married woman, having a separate estate, who signs a promissory note as surety for her husband, will be presumed without further proof to intend thereby to charge her separate estate. Such presumption can only be overcome by proof of facts or circumstances, surrounding the execution and delivery of the note, which show that such was not her intention.
    2. Real estate purchased by a married woman in 1860, with her individual means, and which was under the law as it then stood her general property, was, by the act of April 3, 1861 (S. & S. 389), changed into her separate estate, subject to the provision that vested rights should not be affected thereby. Such property was not thereby subjected to her debts previously made; and the husband’s freehold jure uxoria, was not divested. Subject, however, to vested rights, and .with refer ence to her future contracts, such property is to be regarded as separate property. Olarh v. Clark, 20 Ohio St. 128, explained.
    3. Curtesy “initiate” as it existed at common law, is abolished in Ohio. Curtesy is now regulated by statute and is conferred only upon surviving husbands in the estates of which the wives die seized. It is' not a vested estate until the death of the wife.
    Error to District Court of Madison county.
    The action was brought to charge the separate estate of the wife with the payment of' two notes, for $200 and $400, respectively, executed by her with her husband, Dec. 18,1867. The petition alleges:
    “ 1. That prior to and at the time of the execution and delivery of the above described two promissory notes by the said R. Florence and Elizabeth Florence to the said R. B. Adams & Co., to wit, on the 22d day of March, a. d. I860, while the said R. Florence and Elizabeth Florence were husband and wife, the said Elizabeth Florence was seized in 'fee simple as her separate estate of the said estate hereinafter described, which was for a valuable consideration, on said 2 2d day of March, a. d. 1860, sold, transferred in fee simple by said R. Florence and Elizabeth Florence to one John Williams, and said John Williams did, for a valuable consideration, on the same day, grant, bargain, sell and convey in fee simple to the said Elizabeth Florence, her heirs forever, the same said estate, and which was at that time and now is her sole and sepa/rate estate and is now under her separate and entire control.”
    Then follows a description of the property, which, it is claimed, is the separate estate of the defendant, Elizabeth Florence.
    “ 2. That at the time the above promissory notes were given it was talked over and understood that the said promissory notes should be a lien on said estate, and it was the intention of the said Elizabeth Florence to bind her said separate estate when she signed said promissory notes, and that said notes were to be paid out of her separate estate. And the said Elizabeth Florence did then and there, at the making and delivering of said promissory notes, pledge her separate estate and property to the payment of said promissory notes.”
    The prayer of the petition is, that an account may be taken of the amount due on said notes, with interest, and that a receiver may be appointed to take charge of the above described real estate of the said Elizabeth Florence, and lease or rent the same upon such terms as the court may order, and out of the rents, issues and profits thereof pay to the plaintiffs the amounts found to be due upon the aforementioned notes and the cost of this proceeding, and that the plaintiffs may have such other or further relief as justice and the nature of the case may require.
    The answer of Elizabeth Florence denies each allegation contained in the second paragraph of the petition above set forth, and avers that she did not in any way, at the time of the signing and delivery of said notes, or at any. other time, in any way, by word or deed, promise and bind herself to pay said notes out of her estate, nor pledge her estate for any such purpose. It denies any indebtedness to plaintiff on the notes, and also denies that, on the 22d of March, 1860, or at any other time, she was, or is, seized in fee simple as her separate estate, of the real estate described in said amended petition, or of any part of said real estate. It denies that said real estate was conveyed to her by said John Williams as or for her separate estate, or that the said conveyance contains any words or clause creating or importing a separate estate in said lands in this defendant. On the contrary, the truth in relation to this defendant’s title to said lands is as follows, namely: Long prior to the year 1860, upon the death of her father and mother, who both died intestate, this defendant inherited from them, under the-laws of this state, an undivided interest and share of the lands in the amended petition described, together with other lands; and her said husband, long before the year 1860, acquired by purchase an undivided interest and share in fee simple in the same lands; and the conveyances in the amended petition mentioned were made and delivered for the sole purpose of partitioning said lands between this defendant and her husband. Wherefore this defendant avers that her estate in the lands in the amended petition described is, and always has been, her general estate, and not her separate estate, and that neither she uor her said estate is liable for the payment of said notes, or any part of either of said notes in the amended petition described.
    A reply puts in issue all the averments of the answer.
    A separate answer was filed by Robison Florence, in which he sets forth his discharge from all his indebtedness by proceedings in bankruptcy, upon which no issue is made.
    The action was tried, on appeal, in the district court upon an agreed statement of facts and a judgment rendered in favor of the defendant, Elizabeth Florence.
    The agreed statement is as follows:
    That several years prior to the year 1833, John Williams died intestate, at the county of Madison, state of Ohio', leaving four children, to wit, John Williams, Jr., Harrison Williams, Washington Williams, and the defendant, Elizabeth Florence (then Elizabeth Williams), his only children and heirs-at-law. At the time of his death said John Williams was the owner in fee simple of 1,804 acres of land in said county of Madison, which then descended to and vested in said four children as tenants in common, in fee simple. That said Elizabeth Florence and Robison Florence were married in the year 1833, and have ever since that time resided together as husband and wife.
    That about the year 1840 said Robison Florence purchased and received a conveyance from said Harrison Williams for his undivided one-fourtli of said land, and about the year 1845 ho also purchased and received a conveyance from said John Williams, Jr., of his undivided one-fourtli of said lands. About the year 1840, by mutual consent of all parties, the undivided one-fonrth interest of said Washington Williams in said lands was set off, assigned and conveyed to -him in severalty by his co-tenants.
    That between the year 1856 and March 22, 1860, Edward Edwards contracted with said Robison Florence for furnishing materials and building a house on the remaining three-fourths of said land, which was then owned by said Robison Florence, and Elizabeth Florence his wife, as tenants in common, said Robison then owning two undivided fourth parts thereof, and said Elizabeth, bis wife, then owning one undivided fourth part.
    That said Edwards constructed said house between the dates last aforesaid, in pursuance to a plan that was in accordance with the wishes and directions of said Robison Florence;
    That about March 22, 1860, said Robison Florence became financially embarrassed, and in consequence thereof was compelled to dispose of his interest in said lands, and on March 22, 1860, by mutual consent of all parties interested in said lands, partition was made of said undivided three-fourths of said lands between said Robison and Elizabeth Florence, and she was assigned as her portion thereof four hundred and fifty-one acres of the land described in the pleadings in this action, and npon which said house then and still stands, upon condition and in consideration of her agreeing to release her inchoate right of dower in the other two-fourths of said land, which was then assigned and conveyed to said Robison Florence, and she did thereupon release her inchoate right of dower therein, and the same was sold free from such inchoate right of dower, and the proceeds applied to the payment of the debts of said Robison Florence.
    In the latter part of the year 1861, or early in 1862, said Robison Florence was insolvent, and was indebted to said Edwards in about $600 for work done and materials furnished in the construction of said house, and said indebtedness was unpaid and unsettled.
    At the date of the notes, in 1867, Edwards claimed there was still due him from said Robison Florence the sum of over $800, but he offered to take $600 in full satisfaction of his claim, if said Robison, who was still insolvent, would give him his notes, payable to R. B. Adams & Co., or order, to whom said Edwards was indebted, one for $200, due in one year from that date, with interest, and the other for $400, due in two years from that date, without interest, with liis wife, the said Elizabeth, as surety thereon; which offer was accepted, by said Robison, and the notes in suit executed and ■delivered accordingly. The said Elizabeth knowingly' signing said notes as surety for said Robison; and said notes were ■subsequently assigned by 'the said R. B. Adams & Co., for a valuable consideration, to the plaintiffs.
    This proceeding is prosecuted to obtain a reversal of the judgment of the district court.
    IF. J. Gilmore, for plaintiff in error:
    On the issues and agreed facts I claim that the wife ac■quired title to the lands as a purchaser on March 27, 1860.
    First. The respective rights of the husband and wife in the lands are, therefore, to be considered with reference to the ■state of the law in Ohio at the date she so acquired title. So far as it can be done, I will consider these respective rights separately ; those of the husband first:
    I. Curtesy in expectancy and curtesy initiate as known at common law, had been abrogated or greatly modified in Ohio prior to 1860, and curtsey consummate had at that time become purely statutory. The statutes to which reference is had are : 1. Section 15 of the statutes of descents, passed in 1835. Swan Stat. (1841) 288. This section saves the right of curtesy and dower which any person may have in any estate of inheritance of any deceased person, i. e., curtesy consummate. While there is nothing in the act expressly changing the common law in reference to curtesy in expectancy, or initiate, there is a saving as to curtesy consummate alone. The common law would have done the same. It would also have vested the consummate estate in the husband immediately on her death. 4 Kent, 30. The statute does the same. At common law curtesy expectant vested no interest in the husband and it was subject to legislative control and devestment. Thurber v. Townsend. 22 N. Y. 517. But at common law curtesy initiate was such an interest in the husband, that he could sell or incumber it, and hence it could be seized and sold on execution. Canby v. Porter, 12 Ohio, 79. The effect of section 15, above cited, was to constitute curtesy consummate a vested statutory estate, and by implication to leave curtesy expectant and initiate subject to legislative control, by impliedly denying to them the character of vested interests.
    2. The act of 1846, Swan Stat. (1854) 712, 713, and the amendatory act of 1847. Ib. 713. The amendment imparts to the act a prospective operation in terms. Still the. act is a plain assumption of power over curtesy in expectancy and initiate, and when read in connection with section 15, just cited, it is a qualification of curtesy consummate. Section 1 overthrows the law as announced in Canby v. Porter, supra. Section 2 destroys the common law characteristics and qualities of curtesy. It cuts off the jus disponendi, and inhibits incumbrances by the husband of his interest. He cannot incumber his wife’s estate even to the extent of letting one of his wife’s fields out for one crop. Jenney v. Gray, 5 Ohio St. 45. The right, whatever it is, under this act, could not longer be claimed as a common law right, nor, as to curtesy initiate, can it be said to be a thing owned by the husband.
    3. It was not intended to be an exemption law in favor of the husband. Such a law already existed. Swan Stat. (1841) 487.
    4. It was not intended as a homestead law, for such a law was passed in 1850. Swan Stat. (1854) 711. These laws are all indicative of an Ohio policy: the two last ones for the protection of husbands ; the act of 1846 for the protection of wives.
    5. The next act to -which attention is called is the act of descents of 1S53 (Swan’s Stat. 1854, 323, § 17), which is a hcec verba re-enactment of section 15 of the act of 1835 with these words added : “And surviving husbands, whether there has been issue born during the coverture or not, shall be entitled to the estates of their deceased wives by the curtesy.” This is important, as it excludes the idea that there can be curtesy initiate without the birth of issue. Thus stood the law in 1860 when the wife in the case at bar acquired title to the lands in question by purchase; and the curtesy rights of the husband were such as the law gave him at that time. There was no issue of the marriage of the husband and wife in the case ; or at least the record is silent as to issue, and the fact should have been shown affirmatively if there was issue. On this state of the case I claim that the husband has only a. statutory, vested curtesy in the lands in question, that will come into his possession and enjoyment on the death of his wife but not before ; and that, this -was the only vested interest .by way of curtesy that he acquired in his wife’s lands at the time she took the fee by purchase and conveyance in 1860. At that time, even at common law, he took but curtesy in expectancy, which, like the inchoate right of dower in a wife, is subject to legislative control.
    6. As to the effect the act of 1861, and the amendment thereof of 1866 had on the curtesy of husbands, see Denny v. McCabe, 35 Ohio St. 576.
    Second. The lands of the wife described in the petition, or the rents and profits thereof, are liable to the payment of the notes set out in the petition.
    1. Conceding that the lands in question were what is called her general property at the time she acquired them in 1860, and that she had a vested title and estate in them; yet neither her title nor estate was impaired or disturbed by the act of 1861 (amended in 1866), which declares these lands to be her separate property, (a.) A wife’s vested right of property cannot inhere in, or-depend upon, her mere common law disabilities. At common law her title and estate remained vested in her as to lands owned by her at her marriage, or the same vested in her, as to lands acquired by her after her marriage, but that law gave the possession and control of such lands to the husband during coverture, and a a freehold estate therein after her death. The devesting of the husband, by law, of his possessory right's during coverture, (as I have argued has been done in this case,) only freed her already vested estate from restrictions, and to that extent enlarged her rights therein; and on the death of the husband during coverture, all restrictions are removed and her rights correspondingly enlarged in her lands, i. e., she holds a fee simple estate as a femme sole, so that the marital rights of the husband had never disturbed her vested title and estate. Cooley Const. Lim. top p. 443, 444. (b.) The wife’s vested title and estate in this case is one thing, and these cannot be devested by retroactive laws the manner of holding, the tenure — is a different thing, which in this case, the wife had no vested right in ; and, lienee, the legislature could change the tenure, by a law retroactive in its operation.
    2. Without conceding that the acts of 1861 and 1866 have a retrospective operation in this-case, I claim that it was without the power of the legislature to give it such an operation, so far as it affects the tenure of the wife. Holbrook v. Finney, 4 Mass. 568 ; Annabel v. Patch, 3 Pick. 361; Morris v. Clymer, 2 Penn. St. 277 ; and see analogous cases, Carroll v. Olmsted, 16 Ohio, 251; Gilpin v. Williams, 25 Ohio St. 283, 300; Goshorn v. Purcell, 11 Ohio St. 652, citing Ohio cases;. Killain v. Killain, (Penn. 1861) 1 Am. Law Reg. N. S. 18; Chestnut v. Shane, 16 Ohio, 599 ; Goshen v. Stonington, 4 Conn. 209. Finally, the plaintiffs are entitled to the relief they ask. Phillips v. Graves, 20 Ohio St. 386 ; Williams v. Urmston, 35 Ohio St. 296; Avery v. Vansickle, 35 Id. 260.
    
      
      Harrison, Olds & Marsh, and George Lincoln, for Mrs. Florence:
    The agreed statement of facts shows the nature of the wife’s title to the land. It came to her by descent prior to the year 1833, and clearly shows that the land in question is the general property of the wife, as distinguished from either an equitable or statutory separate estate. Mrs. Florence was married to her present husband long prior to the passage of any of our statutes declaring what shall be deemed the separate property of married women. Glidden v. Taylor, 16 Ohio St. 509; Quigley v. Graham, 18 Ohio St. 42; Logan v. Thrift, 20 Ohio St. 62; Clark v. Clark, 20 Ohio St. 128.
    The partition of the lands which took place in March, 1860, did not impress upon the land assigned to the wife the legal character of a separate estate. Partition does not decide title or create any new title. Tabler v. Wiseman, 2 Ohio St. 207 ; McBain v. McBain, 15 Ohio St. 337.
    The partition, however, was made prior to the passage of the act of April 3, 1861, concerning the rights and liabilities of married women. Neither that act or the amendments thereto, have a retrospective operation, so as to affect vested lights or to change the character of the defendant’s estate in the lands. Nor was it constitutionally competent for the legislature to make those acts retrospective in their effect. Quigley v. Graham, 18 Ohio St. 42; Glidden v. Taylor, 16 Ohio St. 509; Logan v. Thrift, 20 Ohio St. 62.
    The general property of a married woman cannot be charged in equity with the payment of her engagements. It is necessary to aver and prove that the wife has a separate estate. Jenz v. Geigle, 26 Ohio St. 527; Falles v. Keys, 35 Ohio St. 265.
    Inasmuch as Mrs. Florence has no separate estate, the judgment of the district court was right, and should be affirmed.
   Doyle, J.

If the defendant, Elizabeth Florence was, at the date of the execution of the notes, the owner of the real estate described in the petition, or any part of it, as her separate property, the judgment of the district court was wrong. "When a married women, owning a separate estate, executes a promissory note, either for herself or as surety for her husband, the presumption is that she charges her separate property with the payment thereof. Such presumption cannot be overcome by testimony by the wife, that such was not her intention. Unless there are circumstances surrounding the transaction which show that such was not her intention, it is not material what her secret purpose was, and the presumption aforesaid will prevail.

The finding, therefore, by the district court, that she knowingly signed the notes as surety for her husband, is sufficient to bind her separate property (if she had any), notwithstanding the denial in her answer thiS| by the execution of the notes she made such charge, or the averment that she did not, by word or deed, promise to pay said notes out of her separate estate, or pledge the same for such purpose. Avery v. Van Sickle, 35 Ohio St. 270; Williams v. Urmston, Id. 296.

Was defendant, Elizabeth Florence, possessed of a separate estate at the date of the execution of the notes, in 1867 ? A considerable part of the argument of the case was devotpd to the rights of the parties, upon the assumption that the estate which the wife now holds came to her by virtue of her inheritance of the property prior to 1833, at which time the common law governed in respect to the marital rights of the husband. It being insisted upon one side that these were vested rights-which could not be affected by subsequent legislation. We are relieved from considering that question by the fact that the husband and wife, in 1860, united in conveying this land to a trustee, who afterwards conveyed the same to the wife. Whatever interest the husband had, passed by his deed to the trustee, and when the title became, again, vested in the-wife, his rights accrued under the law as it then stood. It is true, it is alleged, that these deeds were made for the sole purpose of partition, and it is insisted that no new title was created by such partition. The rule asserted in Tabler v. Wiseman, 2 Ohio St. 207; and Mc Bain v. MeBain, 15 Ohio St. 337, applicable to partition proceedings under the statute, that no new title is created thereby, does not apply to the deliberate conveyances of the parties, especially where there is an independent consideration for such conveyances. In the present case the wife, in consideration of the conveyance to her of the land in question, which was improved, by the house in the erection of which this debt was incurred, released her inchoate right of dower in the remainder of the land. The rights of the parties, therefore, are to be determined under the law as it stood in 1860, and such modifications thereof as the legislature has since, within its constitutional power, made by statute.

By a series of statutes, commencing with the act of February 28,1816, the legislature of this state has sought to abridge, and in some particulars remove, the disabilities under which married women hol'd their estates at common law, and the control which their husbands had over such estates. By the common law, the husband, upon marriage, became vested with the wife’s estate of inheritance during coverture, and if he survived her, and issue capable of inheriting it had been born to them, he had a life estate, by curtesy, therein. The estate of the husband, either during coverture, or after the death of the wife, could be seized and sold upon execution for his debts, and he could convey and incumber the same. There was no provision which secured to her or her children, during the life of the husband, a home in even her own lands against the demands of his creditors, or his own extravagance or improvidence. To mitigate this generally recognized evil, the legislature passed the act of February 28, 1876, S. & O. Stat. 693 a, whereby it was enacted: “That the interest of any married man in the real estate of his wife, belonging to her at the time of their intermarriage, or which may have come to her by devise, gift or inheritance during coverture, or which mayliave been purchased with her sole and separate money or other property, and during coverture shall have been deeded to her, or to any trustee, in trust for her, shall not be liable to be taken, by any process of law or chancery, for the payment of his debts during the life of the wife, or the life or lives of the heir or heirs of her body.”

The second section of the act made all conveyances and incumbrances of the husband’s interest in such real estate of the wife, void during the life of the wife, and during the life or lives of the heir or heirs of her body, unless by instrument of conveyance executed, attested and acknowledged according to the laws of this state for the conveyance or incumbrance of the estate of the 'wife in lands situate in this state. By other sections of the act provision was made for exempting from liability for the debts of the husband certain articles of personal property, dioses in action, demands, legacies and bequests.

This statute operated alike upon the interest, in the lands of his wife, which the husband had “ jure uxoris,” which was a freehold interest and lasted during coverture, and the estate by the curtesy, which was consummate upon her death. The first could not be seized upon execution, or conveyed or incumbered unless she joined therein, the second was equally secured, after her death, during the life of any heir of her body. See Jenney v. Gray, 5 Ohio St. 45.

This act was in force in I860 when, as we have shown, the wife’s present title to the lands was acquired.

By the act of February 11, 1824, Chase’s Statutes, 1313, the law of descent and distribution of the estates, real and personal, of persons dying intestate in Ohio was regulated and determined. By section 15 it was. declared, however, that nothing contained in the act should affect the right “ any person may have as tenant by the curtesy in any estate of inheritance, nor shall the right of dower claimed by any widow, in any estate of inheritance be impaired in any wise whatever.”

This left the estate by curtesy as it existed at common law; expectant upon marriage (as it is sometimes asserted), initiate upon the birth of a child capable of inheriting, consummate upon the death of the wife. This act was amended in 1835, Swan’s Stat. (1S41) p. 288, and in the place of the section last cited, the following was enacted :

‘‘Sec. 15. Nothing in this act shall be so construed as to affect the right which any person may have to any estate by the curtesy or in dower, in any estate of inheritance of any deceased person.”

While in the act of 1824 the common law estate of the curtesy was saved from the operation of the act, the curtesy which is saved in terms by the act of 1835 is curtesy in the estate of a deceased wife. It is true that the statute was regulating descents and distribution, estates of deceased persons, nevertheless the change in the language has significance.

The act was again amended in 1853, and section 17 contained the entire section 15 above quoted, and added thereto this clause “ and surviving husbands, whether there has been issue born during the coverture or not, shall be entitled to the estates of their deceased wives by the curtesy.”

In Denny v. McCabe, 35 Ohio St. 576, it was insisted that by this statute, which eliminated from an estate by the curtesy the prerequisite, “ birth of issue,” an estate immediately vested in the husband, in all respects like unto curtesy initiate, by the mere facts of marriage and seizin of the wife, but it was held that such was not the effect of the act. That the marital right of the husband to the possession and control of the real estate of his wife was unaffected by the act. That in strictness this right is not an estate by the curtesy, though sometimes called curtesy expectant, but a mere possession by him in the right of the wife ; and that the statute operated only to enlarge the rights of “surviving husbands.” And see 10 Pa. St. 398; 1 Leading Cases in the Am. Law of Real Property, 259; 100 Ill. 367.

It -seems clear that by this legislation the rights of the husband in the real- estate of his wife were in these respects materially changed; i. e., the estate or interest which, by virtue of the marriage, was his, whether issue was born or not, and which entitled him to the possession and rents and profits thereof during coverture, was preserved to him, bnt with his power to convey or incumber it without his wife’s joining with him, and the power of his creditors to seize it upon execution, destroyed. His curtesy in the estate of his deceased wife, i. <?., curtesy consummate, was likewise saved to him, no longer dependent upon the birth of issue.

It would seem from this that whát was known at common law as “ curtesy initiate,” as distinguished from the freehold of the husband jure uxoria, and the right by the curtesy in the estate of a deceased wife, has no place in this system. It could not be conveyed and incumbered by the husband, or seized upon execution. The right of the husband to curtesy consummate no longer depended upon it. The elements which gave it value as a vested estate are eliminated. See 1 Leading Cases Am. Law Real Property, 286; Denny v. McCabe, 35 Ohio St. 576 (where this precise question is adverted to but not decided); Bruner v. Briggs, ante.

The record in this case is silent as to whether there was issue born of this marriage or not, but whether there was or not we think no estate by the cui'tesy vested in him in 1860, when the title of the wife was received which was beyond the power of the legislature to abolish. Thus stood the law when the act of 1861 was passed, which provided as follows:

“ Any estate or interest, legal or equitable, -in real property belonging to any woman at her marriage, or which ma/y have come to her during coverture, by conveyance, gift, devise or inheritance or by purchase with her separate money or means, shall together with all rents and issues thereof, be and remain her separate property and under her sole control; and she'may in her own name during coverture, lease the same for any period not exceeding three years. This act shall not affect the estate by the curtesy of any husband in the real property of his wife after her decease; but during the life of such wife or any heir of her body, such estate shall not be taken by any process of law for the payment of his debts, or be conveyed or incumbered by him unless she shall join therein with him in the manner prescribed by law in regard to her own estate.”
Sec. 5. This act shall not affect any lights which may have become vested in any person at the taking effect thereof.”

This act, as to future acquired estates, stripped the husband of his right to the possession-and to rents and profits of his wife’s lands. As to previously acquired estates, such right, being vested, was left unimpaired. It saved to him an estate by curtesy after her decease.

JBy an amendment to this act, passed March 23, 1866, the power of the wife to make contracts in her own name, with reference to her separate property, was enlarged, and for any liability growing out of such contracts rendering such separate estate subject to execution, in any action against lier. The effect of this statute is to impress upon the general property of the wife, acquired in the manner defined by the act, the characteristics of separate estate, whether such property was thus acquired before or after its passage. 16 Ohio St. 518.

It may not be in all respects like the separate estate which existed in equity, nor is it essential that it should be. It is a statutory separate estate, which may exist, if the legislature so declares, in lands subject to the marital rights of the husband or in the language -of the statute, in any estate or interest, legal or equitable in lands.

It did not and could not affect vested rights. It was decided in Logan v. Thrift, 20 Ohio St. 62, that such estate, i. en lands purchased before the passage of the act of 1861, could not be subjected, after the passage of the act, to the payment of a note previously -executed, for the manifest reason that at the time the wife signed the note she had no separate estate. In Fallis v. Keyes, 35 Ohio St. 265, it was held that land acquired after the act of 1861, could not be subjected'to the payment of an obligation entered into by her, previous to the passage of the act, for the same reason, to wit: that she had no separate estate when the obligation was entered into and hence there could be no intention to charge it. In these cases the rights of the parties .were fixed before the passage of the act.

But the legislature might, within its constitutional power, enlarge the power and control of the wife, over her own property, so as to affect her subsequent conduct with reference to it. It might authorize her to convey or incumber it without the consent of her husband, leaving his vested rights, however, unaffected. It might enlarge her general property into separate property, if it was not thereby subjected to existing liabilities which could not be enforced against it while it remained her general property. It certainly could confer upon her the power to charge such estate with the payment of future debts or obligations.

Construing this act to have the effect of converting the general property of the wife into separate property, without affecting vested rights, does not take away or impair any right of the wife, nor without her consent create any new obligation. With respect to past transactions it does not attach any disability or liability. It does enable her however, with respect to her future contracts, to charge such property as her separate property. The rights of the husband which vested in him prior to the act of 1861 are not affected. He is still entitled jure uxoris to the possession and rents and profits during' the joint lives of himself and wife. That is the only right which vested in him at the date of the conveyance to the wife in 1860. If he survives her he will be entitled to an estate by the curtesy in the lauds of which she dies seized. Subject to the marital right of the husband she can charge this estate, as her separate property, by contracts or obligations entered into by her, subsequent to the passage of the act of 1861.

We do not overlook certain expressions in reported cases in Ohio which are in conflict with the views here expressed. In Clark v. Clark, 20 Ohio St. 128, the question was whether the wife could maintain ejectment upon a deed to her of lands, executed before 1861, and containing no words creating a separate estate. It was held that she could not for the very manifest reason that the husband was entitled to the possession of the land during their joint lives. That the rights of the husband stood unaffected by the act of 1861. So say we. The statement found in the opinion that, under the deed, the husband had an inchoate estate of curtesy in the lands, with the present right of possession, is a misstatement. His present right of possession is independent of any estate by the curtesy.

“ It has 'sometimes been said that a husband is tenant by the curtesy initiate by the marriage, but there is no curtesy before the birth of issue; for though the marriage is the foundation of the whole, it does not constitute it at the common law. The husband indeed becomes seized of a freehold by the marriage, but it is his wife’s freehold, not his, insomuch that both must do homage for it. In contemplation of law, therefore, her person is his person, and her seizin h'i3 seizen. After issue born he has a separate estate.” Chief Justice Gibson in Lancaster Co. Bank v. Shaffer, 10 Pa. St. 398. See 2 Mich. 94 ; 15 Mich. 60 ; 22 N. Y. 517 ; 28 Barb. 343 ; 9 Ind. 184; also 9 Ind. 37. In Clark v. Clark, supra, it is said by the court: “Lands conveyed to a married woman prior to the act of April 3, 1861, do not by virtue of that act become the separate property of the wife.” The only question however before the court, was whether the act of 1861 divested the husband of his marital light to the possession, so as to enable the wife in her own name to maintain an action in ejectment, and the quoted proposition must be read in the light of that fact. The act of 1861 certainly.-did not convert his right of possession into the separate property of the wife, because it was a vested right and the act could not and did not purport to have that effect.

An expression in the opinion in Fallis v. Keyes, supra, seems to imply that the act operated on future acquired estates only. But the property of the wife in that case was undoubtedly her separate property, admitted to be so, acquired after 1861, and the question being whether it could be charged with obligations entered into prior to 1861, this question was not before the court and it did not attempt to decide it. It follows from what has been said, that the rents and profits of the land in question cannot be subjected to the payment of these notes. They belong to the husband during the joint lives of himself and wife. Subject thereto, however, the notes are a charge upon the wife’s estate, which can be sold, if necessary, to pay them.

Judgment reversed.

Johnson, C. J.

I dissent from the 1st point of the syllabus, for the reason stated in Levi v. Earl, 30 Ohio St. 147.

I concur in the judgment, however, upon the facts stated in the record, but differ from my brethren as to the effect of the act of 1846, on the general property of a married woman, acquired after that act took effect, as to the husband’s rights in her land during coverture.

It is said in substance that the only effect of the act of 1816, was to limit the freehold estate of 1he husband jura uxoris, so as to exempt such estate from being taken for his debts, or being sold of incumbered by him, during her life or the life or lives of the heirs of her body and therefore the estate was one of freehold vested in him alone during coverture, which entitles him to sole possession with the exclusive light to the rents issues and profits of the land.

In my judgment the effect of the act of 1816 goes farther than this, and should be so construed. Its sole object was, to protect married women and the heirs of their bodies, in the enjoyment of the possession, rents, issues and profits, of their general estate, acquired after the act of 1816, in common with their husbands during coverture, and during the life of heirs of their bodies. This was done by taking from him all the common law incidents of sole freehold estate jure uxoris. It is not liable for his debts, nor could he sell or incumber it without the wife consented by joining in a valid conveyance.

It was solely for her benefit, and that of the heirs of her body during their lives. Without taking time to demonstrate' this, I content myself with simply stating, that as to lands acquired by a married woman after the act of 1816, her husband acquires an estate of freehold, in common with his. wife, the owner of the fee, and that she, jointly with him, is entitled to the possession, rents, issues and profits. It follows, that this interest of the wife during coverture became the separate property of the wife by virtue of the acts of 1861 and 1866. Hence I concur in the judgment, but think that this joint interest of the wife in common with her husband is under the acts of 1861 and 1866 chargeable.  