
    Ransom Yale vs. Eliza Ann Dederer, by her next friend, and Nicholas A. Dederer.
    A married woman can, by signing a note with her husband, as his surety, intending thereby to charge her separate estate, and agreeing by parol that such estate shall be charged, bind her separate estate, in equity, to the payment of the note.
    APPEAL, by Eliza Ann Dederer, from a judgment entered at a special term, after the second trial of the case. The first trial is reported in 21 Barb. 286. The judgment there ordered was affirmed at a general term, but reversed in the court of appeals, (18 N. 7. Rep. 265.)
    The action was brought to charge the separate estate of Eliza Ann Dederer, the wife of Nicholas A. Dederer, with the payment of a promissory note, in the words and figures following :
    “ f998. On the first day of May next, we, or either of us, promise to pay Bansom Yale or bearer, nine hundred and ninety-eight dollars, with interest, for value received.
    Greene, Dec. 26, 1853.
    if. A. Dederer.
    Eliza Ann Dederer.”
    The consideration of the note was proved, and also that Mr. Dederer had become insolvent, prior to the commencement of this action. It was admitted that Mrs. Dederer was the owner in fee simple of three farms of land, and that her separate estate was sufficient to satisfy any judgment that could be rendered in this action. The evidence on the question of intent by Mrs. Dederer to charge her separate estate was as follows: Albert Yale testified that he was the plaintiff’s brother, and that he knew of the selling of the two lots of cows to Mr. Dederer. Mr. Dederer said he wished to buy some cows, and the plaintiff said he would like to sell him some if he could be made safe. The plaintiff said he wanted to sell them so that he could be safe, collect the money when he wanted it, and when it became due; and Mr. Dederer asked what would make him safe; and the plaintiff said your wife’s note and yours together would be safe, I think; that would buy the cows. The plaintiff asked Dederer if there were any claims upon Mrs. Dederer’s property, and he said there was not, or not enough to amount to any thing. The same conversation occurred at the time of the purchase of the second lot of cows. At the time of the first conversation, the plaintiff said, I suppose it is no more than right that she should sign the note, for I suppose the cows are going on her’s and your premises. Mr. Dederer said I think I shall distribute them about, or something to that effect. I think Mr. Dederer mentioned he was going to drive them to the Warner farm. Mr. Dederer gave a note for the twenty-one cows at this time. He said when you come down to Greene I will give my own note with my wife, or a satisfactory note. It was to be a note of Mr. Dederer and his wife, in satisfactory form. Mr. Dederer lived at Greene village. On the sale of the second lot the Conversation and agreement was substantially like the first. Cross-examined. “I was a partner with my brother at the time of the sale of both lots of cows and when the notes were given; I parted with my interest in them in the fall of 1853; can’t say what month. He took these notes and I took others; the notes that were first given by Mr. Dederer were not signed by Mrs. Dederer. At the time I sold out the notes, I think Mrs. Dederer had signed the .notes. Shortly after the sale the plaintiff went to Greene to get Mrs. Dederer to sign.” James H. Wavle testified: “I lived in Smithville, on the Warner farm, in February and March, 1852; I drove about twenty cows, bought of the plaintiff, to the Warner farm. The cows were selected out before I got there; these cows were selected out and in a lot by themselves. Mr. Dederer told me what cows to drive over there.” Cross-examined. “These cows were left on the Warner farm from four to six weeks ; they were most of them taken to the King farm, owned by Mr. Dederer; they were taken to the Warner farm to eat up some hay, there being a scarcity of hay at the King farm. I was at work for Mr. Dederer then. Mr. John Atwater came after the cows and took part of them at that time. I went as far as the Flats to help to drive them. Atwater at that time occupied the King farm; none of the cows were milked on the Warner farm ; as they began to make bag they were driven to the King farm. The Warner farm was Mrs. Dederer’s farm.” Ransom Yale, the plaintiff, testified: “ I am plaintiff in this suit. On February 14th, 1852, Mr. Dederer came to my place and wanted to purchase some cows of me. I asked if he was going to pay for the cows then, and he wanted to get credit. I told him I would give credit for" the cows if he could give me his wife's note with his for the payment for the cows. I inquired whether his wife’s property was encumbered; I inquired into her circumstances, and after making these inquiries I sold him twenty-one cows at $26-| per head; he was to give me his and his wife’s joint and several note; I wished to get a note to make her holden. I fhink he left the cows over night, and the next day brought a note signed by Mrs. Dederer and him. I won’t he sure about this; I think it was due in November, and that I went to Greene in December and got the note renewed and signed by both. In March 19, 1853, I sold him twelve cows at $29 a head, at Smithville; he offered to give me his wife’s and his note; he told me there were no claims upon the Warner farm. I was to take his note for the twelve cows, payable in the fall, and when I went to Greene he was to get his wife to sign it; he told me, when he bought the twenty-one cows, that he was going to drive them to the Warner farm; I knew that she owned the Warner farm; the farm was worth $5000 or $6000. On the 26th day of December, 1853, the two notes were past due; I went to Greene, to Mrs. Dederer’s house; Mr. Dederer and I went to his house together. I told him I came for my pay; he said he could not conveniently pay then. Mrs. Dederer was in and out; Mrs. Dederer was there part of the time and part not; she was in and out of the room; I said I was afraid of losing it to let it run; he said if he wasn’t able his wife was, and that I could make myself perfectly secure; I said I wanted the money; he said he thought if I was secured I could wait, and proposed giving his wife as security again; I told him if I was safe I could do it, I supposed, and as he proposed giving his wife, I inquired into the circumstances, again, of her property; he told me there was a mortgage of $2500 given upon the Warner farm since the last sale of cows; I told him I was afraid if I didn’t collect it then I would have trouble about collecting it; Mr. Dederer thought I would be safe with his note and his wife’s. We then reckoned the interest on the two notes and found that it was $998; he wrote a note and went into another room to get his wife to sign it; think she was not in; he then signed the note; he then took it out and soon the note came back signed N. A. Dederer and Eliza A; Dederer; she came back with him; I asked her if she had changed her name; why the note was not signed as the note had been previous by Eliza Ann Dederer ; she said she sometimes signed it so; I told her I wanted it right; I told, her that if I extended the time I depended upon her for security for payment of the note; Mr. Dederer said you needn’t be afraid, if I am not able to pay it, my wife is; she said yes, if Nicholas is not able to pay it I am; then we drew up a new note and the note in suit was executed at that time, and I gave up the old paper and took the new one; I think I have seen some of the cows on the Warner farm in May or June, 1854; I think I saw about twelve on the Warner farm; I will correct that; I think it was May or June, 1853; I think it was in the spring before the assignment ; I think I saw the same cows in Willett; I saw the cows in pasture at the Warner farm, which was a dairy farm.”
    The court gave its decision in writing, which contained the following specification of facts: The defendants made their note, stated in the complaint, at the place and date thereof. The consideration of the note was two promissory notes (and otherwise as hereinafter stated) made by the defendants to the plaintiff, and which notes were surrendered on the execution of said note in action; the consideration of which two notes, so surrendered, was cows previously sold by the plaintiff to the said Nicholas A. Dederer, and which cows the plaintiff refused to sell said Dederer, except upon condition that the defendant Mr. Dederer should procure his wife, the other defendant, to sign the notes with him, therefor, as surety. Mrs. Dederer, at the time of the sale as well as at the time of making the said several notes, had a separate estate consisting of three farms in different towns in Chenango county, and of personal property sufficient to satisfy any judgment that can be rendered herein. The defendant Mr. Dederer had become insolvent prior to the commencement of this action, and the plaintiff had obtained a judgment against him on the note in action, upon which an execution had been issued and returned nullahona; Mr. Dederer had made a general assignment of his property for the benefit of his creditors. The note in action was signed by both ■ defendants. The defendant Mrs. Dederer intended to- charge, and did expressly charge, her se-parate estates for its payment, as I find from the evidence in the case. And the giving of the note, together with the express charge of Mrs. Dederer’s separate estate, formed the consideration of the plaintiff’s surrender to them of the said two notes, and also of his granting them further time for the payment thereof.
    The court in form following stated the conclusions of law. “ There is due to the plaintiff, on the promissory note made by the defendants, the sum of $1389.59, and the same is an equitable lien upon the personal and real estate of the defendant Eliza Ann Dederer, and the amount last aforesaid, with interest from the date of this trial, and the plaintiff’s costs, to be adjusted by the clerk of the county of Chenango, with interest thereon from the date of said adjustment, should be paid to the plaintiff from the said personal and real estate of the said Eliza Ann Dederer.”
    
      Selah Squires and Henry M. Hyde, for the appellant.
    
      Henry R. Mygatt, for the respondent,
    cited the following authorities, in addition to those referred to in this case in 21 Barbour, 289, viz: Stamford v. Marshall, (2 Atk. Rep. 68.) Grigby v. Cox, (1 Ves. sen. 517.) Pybus v. Smith, (3 Bro. C. C. 340.) Parkes v. White, 11 Ves. 209, 237.) Owens v. Dickinson, (Craig & Philips, 53,) affirms the same case in 3d Beavan,-and decides that a feme covert can, as to her sepr arate estate, enter into contracts in the same manner as a feme sole, and that her contracts and engagements upon this principle are equally binding whether they are written or merely verbal. Lord Cottenham says, “ It certainly seems strange that there should be any difference between a contract in writing, where no statute requires it to be in writing, and a verbal promise to pay. It is an artificial distinction.” Additional American cases. Harris v. Harris, (7 Iredell’s Eq. Cas. 111,) decided in 1850. Bell & Terry v. Keller, (13 B. Monroe, 384,) decided in 1852. Ozley et al. v. Ikelheimer, (26 Alab. 
      
      Rep. 332,) recently decided, wherein the English cases were cited with approbation, which show that when a debt is in other respects such as to be a charge on the separate property of a married woman, it will make no difference whether the engagement in which it originates is verbal or written. Whitesides v. Cannon, (23 Missouri Rep. 471,) decided in 1856. Sillard v. Turner, (16 B. Monroe, 374.) Burch v. Breckinridge, (1 id. 482.) Imlay v. Huntington, (20 Conn. Rep. 149,175.) Cravens v. Brooks, (8 Texas Rep. 243.)
   Mason, J.

When this case went to the court of appeals before, there was no evidence, in the case, of an intent on the part of Mrs. Dederer to charge her separate estate with the payment of this debt of the plaintiff, except the bare fact that she signed the note with her husband as surety for him. In short, there was no evidence of an intent to charge her separate estate with the payment of the debt, except what equity would infer from the act of signing. I held, on the first trial, that the fact that she signed the note as surety for her husband furnished of itself evidence of an intent to charge her separate estate; acting upon the doctrine of some of the cases in equity, which hold that the wife must intend something by signing, and as she knew that she could create no personal obligation or liability by signing, she must be deemed to have intended to charge her separate estate in equity. (21 Barb. 286.)

The court of appeals reversed the judgment, and have certainly settled the rule that from the bare act of signing a note as surety for her husband, no such intent to charge her separate estate in equity shall be inferred, and that she does not charge her separate estate by the bare act of signing a note as surety for her husband. The case is now changed by evidence on the last trial, which not only shows that she signed the note as surety for the husband, but the evidence shows further and independent of the act of signing, that she did intend to charge her separate estate, and did charge it with the payment of this debt, if any verbal agreement or understanding between her and the plaintiff to that effect can charge it. This brings us to the real question in the case: Can a married woman, by signing a note as surety with her husband, intending thereby to charge her separate estate, and agreeing verbally or by parol that her separate estate shall be charged, bind her estate, in equity, to the payment thereof ?

The court of appeals did not decide this question against the plaintiff, when the case was before that court on the former appeal. Judge Comstock admits that when a married woman holds the fee of lands, under the acts of 1848 and 1849, she may charge it. He says, (18 N. Y. Rep. 272,) “ My conclusion therefore is, that although the legal disability to contract remains as at common law, a married woman may, as incidental to the perfect right of property and power of disposition which she takes under the statute, charge her estate for the purposes, and to the extent, which the rule in equity has heretofore sanctioned in reference to separate estates.” It was admitted on the last trial that Mrs. Dederer is the owner in fee simple absolute of the real estate charged in the complaint herein as her separate estate, and that she became seised thereof in fee subsequent to the acts of 1848 and 1849 ; and Judge Harris, at page 281, speaking of this very case, says that a married woman will charge her separate estate “ when the circumstances of the case are such as to leave no reasonable doubt that such was her intention.” He says again, at page 283, It is simply a rule of evidence. All agree,” he adds, “ that when the wife has expressly charged the payment of a debt upon her separate estate, whether it be her own debt or the debt of another, such charge is valid, and will be enforced.”

He regards the right of enjoyment of separate property as necessarily including the right of disposition, and the power of disposition embraces the power to charge her estate; and he adds, “ when she does this of her own free will, uninfluenced by any unfair practices, however injudicious the act, the charge must be enforced.”

Applying these principles to the case before us, there can be no doubt of the defendant’s liability, in this case. This certainly is no new doctrine in regard to the power of a married woman in equity over her separate property. It is the clear and uncontroverted doctrine of the court of chancery in England and of the courts generally in this country, and, as I understand, is the acknowledged doctrine in equity of the courts of this state. The courts have not differed over the question of her capacity in charging her separate estate, where the evidence shows that there was no doubt in regard to her intention to charge it. The difficulty seems to have arisen as to what shall be deemed sufficient evidence to establish such intention ; and upon this question the court of chancery in England has gone further than the courts of this state. The decisions in England have gone the length of holding, that where the wife unites with her husband in giving such a note or obligation to pay his debt, it shall, without any other evidence of her intention, be charged upon her separate estate; and such is the doctrine of many of the state courts of this country. The court of appeals has said in this very case, such is not the rule with us. They have not decided, however, that where it is shown by extrinsic evidence, that she actually intended to charge her separate estate, by signing with. her husband for his debt, she does not charge her separate estate. Such a doctrine cannot be held without denying to her the power in equity of disposing of her separate property—a power which has hitherto been universally conceded to her. She certainly can be no longer regarded as a feme sole in equity, as regards her separate property, if this doctrine is to prevail.

[Broome General Term,

May 8, 1860.

I am of opinion, for the reasons stated, that the judgment of the special term should be affirmed.

Parker, J. concurred.

Campbell, J. dissented.

Balcom, J. took no part in the decision, having been counsel in the case.

Judgment affirmed.

Mason, Balcom, Campbell and Parker, Justices.]  