
    Card Fabrique Company v. Stanage.
    
      Remedy against the separate estate of married woman—Service by publication.
    
    1. Under sections 4996 and 5319, of the Revised Statutes, (Act of March 20, 1884, 81 Ohio Raws, 65), the remedy against the separate estate of a married woman, is the same as if she were unmarried.
    '2. Where a married woman, after the passage of the act of March 20, 1884, entered into a written contract with a manufacturing company setting forth that, owning in her own right certain real and personal property, and desiring to aid her husband, she thereby agreed and became surety for him in the sum of. fifteen thousand dollars, on account of any indebtedness, to that amount, he might incur to the company as its agent, or as a purchaser of its goods—the company accepting her as surety, upon the faith and credit of her separate estate; Held: That no specific lien having been created by the written contract upon the wife’s separate estate, the remedy of the company was not by suit in equity to charge her separate estate, but by action at law against her, as against an unmarried woman.
    3. Although the wife was a non-resident of this state at the time of commencing the original action, the written contract did not afford adequate ground for service by publication, under Section 5048, of the Revised Statutes.
    (Decided June 13, 1893.)
    
      Error to the Superior Court of Cincinnati.
    In the year 1886, the plaintiff in error, The Card Fabrique Company, was a firm located at Middletown, Ohio, engaged in the manufacture and sale of playing cards; and the defendants in error, John E. Stanage and Emma Stanage, who are husband and wife, were then, and at the time of commencing the original action, residents of the state of Missouri.
    The original petition was filed by the plaintiff in error, in November 1887, in the Superior Court of Cincinnati, making John E- Stanage, Emma Stanage, and Margaretta M. Frank and Augustus F. Frank trustees under the will of Agustus W. Frank, defendants. Said petition is as follows:
    “The plaintiff alleges that it is a firm formed for the purpose of and doing business in and under the laws of Ohio. On April 11, 1885, it entered into a contract with said John E- Stanage, by which it sold to said John E- Stan-age, 900 gross of playing cards for $8,916.75, and by which it appointed said John E- Stanage its agent to sell its goods, consisting of cards and other commodities. On March 9, 1886, a supplemental agreement was made between the plaintiff and said John E, Stanage, by which it sold to said John EStanage an additional amount of 1,000 gross of cards for $15,541.33, and by which it continued the appointment of John E- Stanage its agent to sell its said goods. The debt from said John E. Stanage to the plaintiff for said goods has long since fallen due. Pursuant to said agency plaintiff furished to said John E- Stanage goods from time to time tobe sold by him for plaintiff, amounting to $-. Said contracts of agency gave to said John E- Stanage the right to sell the' goods of plaintiff in certain specified territory of the United States, and to the extent of such sales said John E- Stanage became debtor to plaintiff therefor; and he was to be allowed a commission on such sales. That after deducting such commissions and such expenses as he was entitled to, he became indebted to plaintiff for same in the sum of $-. Said John E- Stanage has paid to the plaintiff on said goods sold directly to him, and on such goods as he sold under said agency, the sum of $•-----, leaving •a balance due and owing by him to plaintiff of the sum of $11,458.83, and interest thereon.
    “Plaintiff alleges that to induce the making of said second ■or supplemental agreement, and-to induce the continuance ■of said agency, and the furnishing of said goods by plaintiff to said John E- Stanage, and for other valuable considerations, and as part of said supplemental agreement, said Emma Stanage, the wife of said John E. Stanage, represented to plaintiff that she was the owner of certain real ■estate and a life estate in her share of the estate of said Augustus W. Frank, sufficient to secure plaintiff in the amount of said indebtedness. And to secure said plaintiff the amount of said indebtedness of said John E- Stanage, she did on March 16, 1886, execute to plaintiff an agreement in writing, a copy of which is hereto attached, by which she agreed and promised and became surety for said John E- Stanage to plaintiff for said indebtedness, and agreed that her life estate, and said estate of Augustus W. Frank should be liable therefor. Plaintiff says at the time she made said representations and entered into .said agreement, said Emma Stanage was the owner and seized in her ■own right of a life estate in said estate, consisting of personalty and realty in Cincinnati, Hamilton county, Ohio, which she acquired by the will of said Augustus W. Frank, ■on its probate June 21, 1867, in the probate court of Hamilton county, Ohio, in which county said testator was a resident at the time of his death, and her said contract was made and entered into, and bears date at Middletown, Ohio. Plaintiff is unable to state the amount of the interest held by her for life in said estate, but it alleges it to be more than sufficient to pay said debt.
    “Said Margaretta M. FrankandAugustus F. Frank are now the duty appointed and qualified trustees of said estate of Augustus W. Frank, and hold said life estate in trust for said Emma Stanage.
    “Plaintiff has demanded of said John E. Stanage-the payment of said indebtedness, whicb he refused to pay.
    
      “Wherefore the plaintiff prays that the court may find and adjudge the amount due to it from said John E- Stanage, and may find the amount of the life interest of said Emma Stanage in said estate of Augustus W. Frank, and may order the same to be sold for the payment of said debt and interest, and the costs of this action, and for other proper relief.”
    Interrogatories, annexed to the petition, were propounded to Margarette W. Frank and Augustus F. Frank, requesting them to state.
    1. What share or proportion Emma Stanage had in the estate of Augustus W. Frank.
    2. Of what property and assets the said estate consisted; and,
    3. To what date had the interest of Emma Stanage com-, ing to her by virtue of said life estate, been paid.
    The following is a copy of the agreement executed to the plaintiff by Emma Stanage, to which reference is made in the petition:
    “This agreement, entered into between Emma Stanage of the first part, and The Card Fabrique Company of the second part, witnesseth:
    “Whereas, the party of the second part has appointed John E. Stanage, husband of the party of the first part, their agent, for the sale of articles of merchandise: and also sell to said John E- Stanage said articles of merchandise whereby large sums of money and property will come into his possession and control as such agent; and the said John E- Stanage has and will become indebted to them in large sums by reason of sales made by him, which may or will be evidenced by notes or acceptances, given to said party of the second part for the same, or portions of the same, and whereas said party of the first part owning in her own name certain real and personal property and desiring to aid her said husband, John E- Stanage, by these presents agrees in consideration of one dollar paid to her by said party of the second part, and does become surety for said John EStanage in the sum of fifteen thousand dollars for the obligations aforesaid and the faithful performance on the part of said John R. Stanage of his duties as such agent, and the accounting for and payment of all moneys, and surrendering of all property, which may come into his possession or control as such agent to said party of the second part, when demanded, and the payment of indebtedness when due and required. It is understood and agreed that in no event shall said Emma E. Stanage be liable as surety aforesaid in a sum exceeding fifteen thousand dollars, and the said party of the second part accepts. said Emma F. Stanage as surety aforesaid, upon the faith and credit of her separate estate.
    “In witness whereof we have hereto set our hands and seals at Middletown, Ohio, on this 16th day of March, A. D. 1886.
    “Emma F. Stanage,
    The Card Fabrique Co.,
    
      By H. Anbly, Secretary
    
    “FI. R. Hoffman, (Witness.)
    Minnie Barteel, (Witness.)”
    The defendants, John R. Stanage, and Emma F. Stanage, being non-residents of Ohio, and residents of Missouri, the plaintiff filed an affidavit in the usual form, to obtain service9 by publication. Emma F. Stanage acknowledged service upon herself personally, of a copy of the summons and petition at her residence in Missouri, and without submitting herself to the jurisdiction, moved to set aside, such service. The record shows that this motion was heard and granted, the alleged service, by stipulation of counsel for plaintiff and defendant, to have the same force and effect (and no more) as if service had been made by publication. Subsequently, on a motion for judgment filed by the plaintiff, the petition was dismissed. The judgment of dismissal was affirmed by the Superior Court in general term, and error is prosecuted to this court, on the ground that the court erred in setting aside said service, overruling the motion for judgment and in dismissing the petition.
    
      
      Jordan & Jordans, for plaintiff in error.
    I. Section 5048, Revised Statutes, clause 4, provides that in such cases as made in the petition, service may be made by publication.
    II. By the common law a married woman may pledge her separate estate for the payment of her obligations, and by the statutes of 1861 and 1866, all her property subsequently to be acquired becomes her separate property. Until the act of March 19, 1887, section' 3112, there was no statute in Ohio making a married woman liable at law on any contract which was not for the benefit of her separate estate. Section 4996 was the only section under which any such claim was ever made. The section in force when this contract was made was passed March 20, 1884. But even if we had the right to sue at law, that did not deprive us oí our right to sue in equity to enforce the pledge.
    The authorities in Ohio, touching the right to sue in equity when the separate property is pledged, and where the right to sue at law is denied, are as follows: Phillips v. Graves, 20 Ohio St., 371; Rice v. Railroad 32 Ohio St., 380; Levi v. Earl, 30 Ohio St., 147; Avery v. VanSickel, 35 Ohio St., 270; Williams v. Urmston, 35 Ohio St., 296; Patrick v. Littell, 36 Ohio St., 79; Henisheimer v. Florence, 39 Ohio St., 516; Elliotte v. Lawhead, 43 Ohio St., 171.
    No personal judgment can be entered. Swasey v. Antram, 24 Ohio St., 87; Hoover v. Gibson, 24 Ohio St., 389; Jenz v. Gugel, 26 Ohio St., 527; Allisons. Porter 29 Ohio St., 136; Rice v. Railroad, 32 Ohio St., 380; Patrick v. Littell, 36 Ohio St., 79; McClelland v. Bishop, 42 Ohio St., 113; Payne v. Thompson, 44 Ohio St., 192.
    We claim that the acts prior to 1884 and the act of 1884 are the same in legal effect. Section 28 of the Code, passed March 14,1853, which is now section 4995 of the Revised Statutes. This section 28 was repealed by the act of April 18,1870. Ohio E..67, p. 116. This section 28, so amended in April 18, 1870, was repealed March 30, 1874, vol. 71, p. 48. This section 28, so amended March 30, 1874, was repealed May 14, 1878, vol. 75, p. 801, and was re-enacted on May 14, 1878, and divided into two sections. Vol. 75, pages 666, 667. An act was passed January 21, 1879, Ohio R. 76, p. 3, which again repeals section 28, in the act of 1874. Section 4996, of the Revised Statutes, passed June 20, 1879. This section 4996, is re-enacted and amended March 20, 1884, Ohio R., vol. 81, p. 65. Section 5319, of the Revised Statutes, passed June 20, 1870. This section 5319 is re-enacted and amended March 20, 1884, Ohio R. vol. 81, p. 65.
    
      Roelker & Jelke, for defendant in error.
    Counsel for plaintiff in error claim that until the act of March 19, 1887, section 3112, there was no statute in Ohio making a married woman liable at law on any contract which was not for the benefit .of her separate estate, and that section 4996 was the only section under which any such claim was ever made. The section in force when this contract was made was passed March 20,1884. Under paragraph second of their brief, counsel quote several Ohio decisions, ending with Payne v. Thompson, 44 Ohio St., 192, to show that no personal judgment can be entered against a married woman. It does not seem necessary to analyze the bearing of these decisions on the case at bar, in view of the recent decisions of this court. Hill v. Myers et al., 46 Ohio St., 183; Maxon v. Scott, 55 N. Y. 247; Todd v. Lee, 16 Wis., 480.
    If no personal judgment could have been awarded against her and enforced by execution, it might have been proper to invoke the remedy in equity of spcifically subjecting her separate property. B ut under the statutory provisions herein considered, authorizing a personal judgment against a married woman, followed by execution where the action concerns her separate estate, an effective remedy is afforded, and a creditor should not, by adopting the form of chancery procedure where he has no specific lien, be. permitted to hold her separate estate to any greater extent or by a firmer grasp than he could, under like conditions, hold the property of her husband or that of an unmarried woman.
    
      ity virtue of the amendments of section 28 of the Code of Civil Procedure, which are substantially embodied in sections 4996 and 5319, of the Revised Statutes, a radical change has been effected in the remedy against married women. Though the object of this legislation was not to enlarge or vary the liabilities of a married woman, it fundamentally changed the form of the remedy. Jenz v. Gugel, 26 Ohio St. 527; Allison v. Porter, 29 Ohio St., 136. The disibilities of coverture are so far removed, that where the action concerns her separate property, a personal judgment may be rendered against her in all cases where such judgment would be proper were she a feme sole. Such judgment may be enforced in all respects as if she were an unmarried woman. Execution may be issued against the separate property and estate to the same extent as against the property of her husband, were the judgment rendered against him; and the same rule will apply to her for the purpose of setting off a homestead in her property, about'to be levied upon, that applies to her husband. Society of Friends v. Haines, 47 Ohio St., 423.
    We submit that, in view of these decisions, rendered on causes of. action arising before 1884, there can be no doubt that a personal judgment could be entered against a married woman on a contract entered into by her with reference to her Separate estate.
    But, in 1884, the statutes, as to the power of married women to make contracts, underwent further changes. The contract on which the claim of defendant’s liability herein is based was made in 1886. At that time the law of Ohio was contained in sections 3109, 4996 and 5319, Revised Statutes.
    If then as to this cause of action the defendant in error was like a feme sole, what ground was there for service by publication under clause four of section 5048, of the Revised Statutes.
    The contract sued on in the case at bar, contains not only no pledge of any property, but not even a reference to any property beyond the mere averment that the defendant in error is possessed of an estate. In order therefore to work out this claim to the right of service by publication, plaintiff in error is compelled first to deny its right to sue at law, in order to maintain its action for equitable relief, setting up there an implied pledge which equity only gave on the ground that at law the obligation was wholly void. Even if plaintiff had a right to sue in equity, and had a specific pledge of defendant’s property, it has failed to set forth any description of the property sought to be affected, as required by section 5050 of the Revised Statutes. Lawler v. Whetts, 1 Handy, 40.
   Dickman, J.

It is contended in behalf of the plaintiff, that under the statutes in force in the year 1886, an action was maintainable in equity to charge the separate estate of Mrs. Stanage—a non-resident of this state—upon her alleged liability under the written agreement entered into between herself and the plaintiff; and that the court acquired jurisdiction through constructive service by publication.

Manifestly, from the terms of the agreement, the "wife, in becoming surety for her husband, intended to charge her separate real and personal property, in the amount specified, for the payment of any future indebtedness he might incur to the company, as a purchaser of or as an agent for the sale of its goods and merchandise. Whether there is, in fact, any indebtedness of the husband for which the wife’s estate should be liable, is not an issue that has been reached, the only inquiry having been as to a remedy by equitable procedure, and the sufficiency of service by publication.

If no personal judgment could be rendered against the wife, the obvious remedy of the plaintiff would be, an appeal to the court, in the exercise of its equity powers, to lay hold of the wife’s separate property, and apply it in payment of her equitable obligations. Although no specific lien was created on her" separate property by the written contract; yet, there would be an equitable charge upon her estate, and a liability of it to be taken in payment by decree, as a man’s property may be taken on execution.

But by statutes—in force when the written agreement in question was entered into, and when the original action was commenced—a married woman may now sue and be sued at law as if she were an unmarried woman; and any judgment rendered against her, may be enforced as if she were unmarried, and her property may be taken on execution to satisfy such judgment, to the same extent that the property of her husband might be taken in satisfaction of a judgment against him.

By section 3109, of the Revised Statutes (act of April 14, 1884, 81 Ohio Raws, 209): “The separate property of the wife shall be under her sole control, and shall not be taken by any process of law for the debts of her husband, or be in any manner conveyed or incumbered by him, and she may, in her own name, during coverture, contract to the same extent and in the same manner as if she were unmarried.”

By section 4996 (act of March 20, 1884, 81 Ohio Raws, 65), “A married woman shall sue and be sued as if she were unmarried, and her husband shall be joined with her only when the cause of aclion is in favor of or against both her and her husband.”

And by section' 5319 (act of March 20, 1884, 81 Ohio Raws, 65), “When a married woman sues or is sued, like proceedings shall be had and judgment rendered and enforced as if she were unmarried, and-her property and estate shall be liable for the judgment against her, but she shall be entitled to the benefits of all exemptions to heads of families.”

The established rule in equity is, that a feme covert, acting with respect to her separate property, is competent to act in all respects, as if she were a feme sole, though, she is not so far a feme sole that a personal decree can be had against her. Peacock v. Monk, 2 Ves. Sen. 190; Hulme v. Tenant, 1 Br. C. C. 19; Clan. H. & W„ 282, 331, 2 Am. ed., 1837. But, by the statutes of this state, a new policy has been adopted and a radical change effected; and a married woman has been placed upon the same footing with her husband, in respect to the judgments or decrees that may be rendered against her, and as to the remedial rights of creditors against her separate estate.

It is urged, however, on the part of the plaintiff, that the legislature designed to give a twofold remedy, or to enlarge the remedy for and against married women, by authorizing an action at law—thus opening all forums as to her, and not only granting the creditor the right to sue at law, but leaving to him also his remedy by suit in equity, where under the adjudications, that right exists. But, the evident intention of the legislature was not to enlarge or vary the liabilities of the wife, but merely to change the form of remedy. If the husband were sued as surety for another, upon an agreement in writing substantially the same as that to which Mrs. Stanage became a party, it would not be claimed, that by the terms of the agreement, his estate might be subjected in equity by a proceeding in rein; and the remedy would be restricted to a personal judgment against him at law, to be followed by execution. Nor is it to be held, that under the statutory provisions relieving the wife from the trammels of coverture, and placing her as a feme sole on the same plane with her husband in prosecuting and defending her property rights in the courts she was to be burdened with increased remedies and liabilities, by not only authorizing against her, as against her husband, a personal judgment at law, but also subjecting her to the alternative remedy of having her separate estate, at the election of the creditor, charged in equity, though not encumbered by any specific lien.

Did the court acquire jurisdiction through service by publication? By section 5048, of the Revised Statutes, regulating constructive service, it is provided, that service may be had by publication:

“ 3. In actions in which it is sought by a provisional remedy to take, or appropriate in any way, the property of the defendant, when the defendant is a foreign corporation, or a non-resident of this state, or the defendants’ place oí residence is unknown.”

“4. In actions which relate to, or the subject of which is,real or personal property in this state, when a defendant has or claims a lien thereon, or an actual or contingent interest therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of this state, or a foreign corporation, or his place of residence can not be ascertained.”

The plaintiff did not see fit to resort to the provisional remedy of attachment, with or without proceedings in garnishment. His service on the defendant, by publication, did not, therefore, avail him under clause three of the above named section of the statutes. And as to clause four of the section, if in the original action, Mrs. Stanage was to be regarded in the light of a feme sole, against whom it was competent to render a personal judgment at law, the written contract into which she had entered might furnish ground upon which to base an action at law, for the recovery of money only, with personal judgment against her, to be enforced as if she were unmarried. But, we find no provision in the written contract, that would entitle the plaintiff to maintain an action—within the meaning of clause four—of which .the subject might be real or personal property, and in which the relief demanded might consist in excluding the defendant from her interest in such property.

Judgment affirmed.  