
    John S. Loomis, Respondent, v. Martha Ruck et al., Appellants.
    (Submitted April 6, 1874;
    decided May 26, 1874.)
    The signature of a married woman was obtained to a promissory note by duress; it purported, in terms, to charge her separate estate, stating that the consideration therefor was for the benefit of said estate. This statement was not true, nor was the note given in the course of any separate business carried on by her. Held, that the note could not be enforced against her, even in the hands of a bona fide holder.
    Such an obligation is not governed by the law merchant.
    Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff entered upon the report of a referee. , This was an action upon a promissory note, of which the following is a copy.
    “ Mew York, November 15, 1871.
    “ Four months after date I promise to pay to the order of myself, six hundred and sixteen 37-100 dollars, at 319 East Fourth street, Mew York, value received, which is hereby made a charge upon my separate estate; the consideration hereof having been for the benefit of said estate.
    “MARTHA RHCK”
    Said Martha Ruck was a married woman, the wife of John. Ruck, the other defendant. The note was indorsed by both defendants.
    The referee found that when said note was given there was an outstanding note for the same amount, due and unpaid, from the defendant John Ruck to the plaintiff, given for a debt due the plaintiff for goods sold and delivered by plaintiff to said defendant .at his request, and the note was given in place of such outstanding note and to take up the same; but that such note, so made by defendant Martha Ruck, was not made for the benefit of her separate estate and was an accommodation note; that the defendant Martha Ruck was coerced to make such note for the accommodation of her said husband, by threats of personal violence made by her said husband, who requested her so to make such note to prevent suit against him on such outstanding note ; but the plaintiff, when he so received such note, had no notice or knowledge of such threats or coercion; that the note was drawn by the plaintiff or his agent, in the presence of both the defendants, preparatory to being signed; that this defendant, thereupon, signed and indorsed the same in the presence of her husband and of such agent of the plaintiff; that the defendant John Ruck procured the making and signing of such note by this defendant at the request of the plaintiff; that the plaintiff knew, at the time of the making and indorsing of said note by this defendant, that the same was not given for the benefit of her separate estate, and that the same was as to her an accommodation note; that the defendant Martha Ruck was a German and could not read English; and that the note referred to was not read over to her.
    
      Benj. M. Stilwell for the appellants.
    Defendant Martha Ruck being a married woman, not engaged in trade, could not make a valid negotiable promissory note. (Yale v. Dederer, 18 N. Y., 265, 272, 278; S. C., 22 id., 450, 457, 460; Owen v. Cawley, 36 id., 600, 603; Scudder v. Gori, 18 Abb., 227; White v. McNett, 33 N. Y., 376 ; Corn Ex. Ins. Co. v. Babcock, 42 id., 614; 3 Kent Com., 76.) If the promissory note was not of itself valid, the addition to it of the words charging her separate estate would not make it valid. (Kelso v. Tabor, 52 Barb., 129.)
    
      
      Ed. J. Maxwell for the respondent.
    The note in suit is such an obligation as the courts will enforce against the maker, even if the consideration thereof did not benefit, her separate estate. (Yale v. Dederer, 22 N. Y., 450; Story’s Eq. Jur., §§ 1396-1399; Stewart v. Kirwall, 3 Mad., 387; Barett v. Lichenstein, 39 Barb., 194; Corn Ex. Ins. Co. v. Babcock, 42 N. Y., 613.) A recovery of the maker will not be defeated by showing that the note was procured from her by coercion of her husband. (Skillen v. Richmond, 48 Barb., 428; Hier v. Staples, 51 N. Y., 136.) The law will not entertain such a defence to a negotiable instrument in the hands of a bona fide holder. ( Vallet v. Parker, 6 Wend., 615; Morton v. Rogers, 14 id., 575; Rockwell v. Charles, 2 Hill, 499; Hall v. Wilson, 16 Barb., 548; Brown v. Leavitt, 31 N. Y., 113; Osborn v. Robbins, 36 id., 365; Pratt v. Coman, 37 id., 440; Swift v. Tyson, 16 Pet., 1; Chitty on Bills, 104,105; 2 Bin., 469; 1 Bailey, 355; Edwards on Bills, 308, 354; Paddon v. Taylor, 44 N. Y., 371; Clottnir v. Adriance, Ct. Apps., May, 1873.)
   Rapallo, J.

There is no ground upon which the judgment against the defendant Martha Ruck can be sustained. The note in suit was not made for the benefit of her separate estate, nor in the course of any separate business carried on by her, and although it purports in terms to charge her separate estate, yet it is found by the referee that her signature thereto was obtained from her by her husband, the defendant John Ruck, by duress, to enable him to take up another note previously given by him to the plaintiff for a debt contracted by Ruck, for his own benefit. The note in suit was drawn-by the plaintiff or his agent; the signature of Mrs. Ruck thereto was obtained from her by her husband at the request of the plaintiff; the husband intimidated her into signing it, by threats of personal violence, and it was signed in the presence of the husband and of the plaintiff’s agent. Although this note states upon its face that the consideration was for the benefit of the separate estate of Mrs'. Ruck, the referee finds that the fact was otherwise, and that the plaintiff so knew at the time the note was made. There can consequently be no claim of an estoppel even were the doctrine of estoppel applicable in such a case. The note, so far as Mrs. Ruck was concerned, was void at common law, by reason of her coverture, and it is not helped by any of the statutes of this State in respect to married women. These statutes render valid, at law, such contracts only of femes covert as relate to their separate estates, or are made in the course of their separate business. As to the last mentioned contracts married women, under our statutes, stand at law on the same footing as if unmarried, and can therefore make negotiable paper which will be governed by the law-merchant. But as to other obligations, they still stand on the same footing as before the enactment of these statutes. Their contracts are void at law, but if they have separate estates courts of equity will enforce them as against such estates. According to the late decisions in this State, an express charge upon the separate estate is required to be contained in the contract. The law-merchant, which gives to the bona fide transferree of negotiable paper greater rights than those of the transferrer, has no application to this class of obligations. They are not recognized at law, and we have been referred to no authority tending to sustain the position, that the transferree of an obligation of a married woman, obtained from her by fraud or duress, and against which she had a good defence, when in the hands of the original holder, can be enforced in equity out of her separate estate, simply because it has passed into the hands of a bona fide transferree. The rules applicable to negotiable commercial paper cannot govern this case. It must be governed by the rules of equity, which in case of equal equities and in the absence of sufficient grounds of estoppel, give preference to the equity which is prior in point of time.

Should the plaintiff be regarded under the circumstances of this case, not as the indorsee of the note, but as immediately contracting with the wife, then his recovery is precluded by reason of the duress practiced by the husband, through whose agency the security was obtained. In no aspect of the case can the wife be held under such circumstances.

As to the husband, we think that the facts found and proven are sufficient to sustain the judgment against him. The judgment against the defendant Martha Ruck should, therefore, be reversed and a new trial ordered with costs to abide the event, and that against the defendant John Ruck should be affirmed, with costs.

All concur.

Judgment accordingly.  