
    Erastus Corning and another vs. John Lewis and Mary J. Lewis his wife.
    The separate property of a married woman is not liable for her husband’s debts; much less for his torts.. It cannot be charged with a debt fraudulently contracted, without her privity, sanction or adoption, whether such fraud be committed by her husband, or any of her relatives.
    Where the husband purchased of the plaintiffs materials for repairing a dwelling-house owned, by his wife and situated on her land, upon the false representation that he was the owner of the house and lot, and gave his own note for the amount; his wife not being privy to the transaction, not knowing where, or how, he obtained the materials, and never sanctioning her husband’s act, nor promising to pay the debt; Held that the wife’s separate estate could not be charged with the payment of the debt; although the materials for which it was created were applied to the improvement of such estate.
    The case of Mattice v. Lillie (24 How. Pr. 264) distinguished from the present.
    APPEAL from a judgment entered on the report of.a referee. The action was an equity action, brought by the plaintiffs to charge the real estate of the defendant Mary J. Lewis with a debt alleged to have been fraudulently contracted by her husband. John Lewis, in the purchase of certain materials (hardware) used in making repairs upon a dwelling-house upon her land. The action' was sought to be maintained upon the ground that as the wife’s estate had reaped the benefit of these materials, and its value been enhanced by their use, she should respond, in her estate, for their price, although she did not in person contract for them ; and also upon the ground that the articles were furnished upon the credit of the estate, they having been sold to the husband upon his representation that he'was the owner of the real estate, and having been thus fraudulently procured from the plaintiff, were applied in the repair of the wife’s house, with her knowledge and consent, as well as that of her husband.
    The referee reported in favor of the plaintiffs, and the defendants appealed.
    
      George W. Cothran, for the appellants.
    
      M. A. Whitney, for the respondents.
   By the Court,

Lamont, J.

The defendants are husband and wife. The action is brought to charge upon the separate estafe of the wife the amount of a bill of goods bought by the defendant John Lewis of the plaintiffs.

So far as the wife, Mary J. Lewis, is concerned, the facts found by the referee to whom this action was referred are as follows : She owned a house and lot at Bowmansville, Erie county, in which she and her husband resided. Her husband repaired the roof of her dwelling, situated on this' lot, in 1866, and she knew he was making such repairs, and using materials for the purpose,.

. The wife did not know the plaintiffs', and never authorized her husband to purchase the materials; nor did she know where he obtained them, nor in what manner they were obtained by him.

On these bare facts, the referee decided that the wife’s separate estate was chargeable with the plaintiffs’ demand against the husband for the materials used.

There is no head of equitable jurisprudence which can be invoked to sustain this judgment. The fact found by the referee, that the husband had been guilty of swindling the plaintiffs in the purchase of these materials, by falsely representing that he owned the house and lot, and gave the plaintiffs his note for the bill, which they were unable by a judgment, execution and supplementary proceedings thereon, to collect of him, does not alter the position of the wife, who knew nothing of these circumstances, and never sanctioned them, nor promised to pay the debt.

The wife’s separate estate cannot be charged with a debt fraudulently contracted, without her privity, sanction or adoption, whether such fraud be committed by her husband or any of her relations. Of her separate estate she is the absolute owner, and has the sole disposition exclusive of her husband. Her property is not liable for his debts; much less for his torts.

. The wife was ignorant of her husband’s transactions in this matter, and he was not her authorized agent.- Whether he had paid for these materials or not; whether he was solvent or a bankrupt; where or how he had obtained them, she had no information, and was under no responsibility.

The case of Mattice v. Lillie, (24 How. Pr. 264,) upon which the referee relied, in deciding this case, is not an authority for his judgment. In that case the court put their decision on the express ground that the lumber used in improving the wife’s separate estate was originally procured by the fraud of the husband, who represented himself to be the owner, with the intent of the wife, at the time of its purchase, that it should be so used; that she was aware that the plaintiff sold the lumber in the belief that the husband owned the house; and that she promised to pay for it. The wife, there, was held privy to the whole transaction, of the fraudulent contracting of the debt, from the start, and knew and intended that the lumber should be thus obtained for the express purpose of improving her estate, and adopted the transaction, in all its length and breadth, and promised to make compensation.

[Erie General Term,

February 8, 1869.

This case is entirely barren of these controlling circumstances, and the judgment must be reversed, and a new trial ordered, with costs to abide the event

Daniels, Marvin and Lamont, Justices.]  