
    COURT OF APPEALS,
    Ransom Yale agt. Eliza Ann Dederer.
    Where a married woman signs a promissory note with her husband as surety, mere equity, not resting upon any positive contract, will never seize upon her separate estate, and appropriate it to the payment of that debt. ($ee this case 18 N. Y. R.} 265, and 17 How. Pr. R., 165.)
    ¡Nor can her separate estate he held liable on such a note, upon the ground that she intended to make it a charge; because, to make such an intent of any importance, it must he either expressed or implied in ihe terms of the contract. (This decision reverses the judgment of the supreme court in this case on the second ’ trial. See 19 How. Pr. R., 146.)
    Under our late statutes, (1849 and 1860,) although giving the legal title and a legal right of disposition, the legislature did not intend to remove the common law disability of married women to hind themselves by their contracts at large. To be obligatory on them or their estates under the late statute, their contracts must relate directly to their separate property, or to the particular trade or business in which they are engaged.
    
      December Term, 1860.
    This was an appeal by Eliza Ann Dederer, from a judgment of the general term of the sixth judicial district, affirming a judgment of the special term entered against her on a second trial, August 4,1859. 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, of which the following is a copy, to wit:
    
      “ Greene, Dec. 26, 1853.
    $998. On the first day of May next, we, or either of us, promise to pay Ransom Tale, or bearer, nine hundred and ninety-eight dollars, with interest, for value received.
    N. A. DEDERER,
    ELIZA ANN DEDERER.”
    The supreme court decided that independent of the act of signing the note as surety for her husband, the evidence showed that Mrs. Dederer did intend to, and did in fact charge her separate estate with the payment of the debt by a verbal agreement or understanding between her and the plaintiff. For a full report of the facts, and the opinion of the supreme court, see 19 How. Pr. R., 146.
    Hyde & Squires, for appellant.
    
    Henry R. Mygatt, for respondent.
    
   Selden, J.

(After an able and elaborate review of the law of separate estates of married women, and the conflicting decisions in equity in England thereon, concluded as follows:)

But whether we adopt this last phase which this shifting doctrine in respect to a wife’s separate estate has assumed, or not, it is certain that the judgment in the present case, cannot be upheld. As was shown by Judge Comstock, when this case was here before, mere equity, not resting upon any positive contract, will never seize upon the separate estate of the wife, and appropriate it to the payment of a debt of the husband for which she is a mere surety; and it follows from what has been previously said, that the estate of the defendant cannot be held liable upon this note, upon the ground that she intended to make it a charge, because to make such an intent of any importance, it must be either expressed or implied in the terms of the contract.

But I am unwilling to leave it to be inferred that I assent to the doctrine of Lord Cottenham. It seems to me, even less defensible than the theories which preceded it. Those theories conceded that the separate estate of a feme covert could not be appropriated in payment of her debts, unless she voluntarily charged such debt upon her estate. Their error consisted in raising an implication of an actual appointment or charge upon wholly insufficient grounds. But Lord Cottenham’s doctrine denies the necessity of any intentional charge of the debt at all, by the wife upon her separate estate, although it, at the same time, makes her power to dispose of that estate the basis of its liability. This argument when rendered to its simplest terms is, that a married woman who has a separate estate, has power in equity to charge anj^ debt she may incur upon such estate; and inasmuch as the general creditors of such married women, whose debts have not been thus charged, have -no other means of collecting them, equity takes hold of the separate estate and appropriates it to their payment.

Can this be sound ? I am unable to see any logical connection between the premises and the conclusion. It may be very just, abstractly considered, that equity should thus dispose of the estate; but it is clearly impossible to deduce the doctrine from the jus disponendi of the wife, which is its only foundation. The truth would seem to be that this mode of dealing with the estates of married women to the extent to which it has been carried by the English courts, could not be sustained by any process of legal reasoning while the grounds upon which it was made to-rest have been repeatedly changed, and the rule itself has been fluctuating and uncertain.

These views are not new. Judge Story in his work on equity jurisprudence, says: It has been remarked that this rule of holding that a general security executed by a married woman, purporting- only to create a personal demand, and not referring to the separate property, shall be intended as prima facie an appointment or charge upon her separate property is a strong case of constructive implication by courts of equity, founded more upon a desire to do justice than upon any satisfactory reasoning.

The courts of this state have never as yet adopted the doctrine of the English court of chancery on this subject; certainly not to their full extent; and it would in my view be inexpedient now to do so, for various reasons. If we attempt to follow a class of decisions which obviously rest upon no solid basis of principle we can never arrive at any settled conclusion. The views of Lord Cottenham, are no more likely to be permanent than those of his numerous predecessors. , Some future "Lord Chancellor may detect the fallacy of his reasoning as he detected that of Lord Brougham. No rule can ever be stable, the reasons given for which are constantly changing. If we desire precision and certainty in this branch of the law, we must recur to the foundation of the power of a feme covert to charge her separate estate ; and this has therefore arisen solely from her incidental power to dispose of that estate. Starting from this point, it is plain that no debt can be a charge, which is not connected by agreement, either express or implied with the estate. If contracted for the direct benefit of the estate itself, it would of course become a lien, upon a vrell founded presumption that the parties so intended, and in analogy to the doctrine of equitable mortgage for purchase money. But no other kind of debt can, as it seems to me, "be thus charged without some affirmative act of the wife evincing that intention, and there is no reason why her acts in this respect should not be tested by the same principles and rules of evidence which are applied to similar questions in other cases.

But there is a strong additional reason why this court should decline at this time to adopt the fictitious theories, on this subject, which have so long prevailed in the English courts. Married women are not hereafter to be indebted to equity, merely for protection in the enjoyment of their separate estates. They hold them by a legal title, and have a legal right to dispose of them. The acts of 1849 and 1860, are henceforth, if not repealed, to he the source of their power over such estates. There is no longer any foundation for the argument, that as equity creates and protects these estates, equity has a right to control them. Rules, therefore, which have grown up under this idea, which I regard to some extent as illusory, will be hereafter entirely inappropriate. I shall not at this time, presume to put a construction upon those acts. That of 1860, authorises married women to carry on any trade or business upon their own account; but with this exception, the only contracts which it empowers them to make, are those which have direct reference to their separate property; and even this power, where the property consists of real estate, is subjected to a very important restriction: the consent in writing of the husband, or the authority of a court being rendered essential to its exercise.

These provisions show that the legislature have not even now intended to remove the common law disability of married women to bind themselves by their contracts at large. To be obligatory on them or their estates under our latest statute, their contracts must relate directly to their separate property, or to the particular trade or business in which they are engaged. This legislation harmonizes with the views I have advanced, in regard to the effect of the contracts of married women. It lends no countenance to the idea that the mere possession of separate estates, renders their contracts having no relation to such estates, binding upon them. It would be impossible, as it seems to me, to hold under our statutes that the mere execution of a security by a married woman, not connected by agreement with her estate could be a charge upon it; and yet the power of disposal conferred by these statutes is to say the least, as complete as that previously possessed by married women by virtue of the jus disponendi, which resulted from mere ownership. There would, therefore, be a manifest incongruity in holding in the present case, that prior to our late statutes, the debt of a feme covert not connected with her separate estate, nor in any manner charged by contract upon it, could he enforced against it, and the deciding, as we evidently must, that under those statutes an actual charge is necessary. The judgment of the supreme court should be reversed, and there should be a new trial with costs to abide the event. 
      
       Note .—We have, as will be seen, published only the conclusions of Judge Selden’s opinion in this case, and our reason for doing so, is, that we could not rely with any certainty upon the copy (although purporting to be certified) which was presented to us. We had some rather unpleasant experience in the publication of Judge Comstock’s opinion in this case (17 How. Pr. R., 165, which was taken from the same source—Judge Harris’ opinion was taken from a printed copy) when it was first decided in the court of appeals. After altering and amending that copy as much as we dared to, in order to make what seemed to be indispensable corrections, we found to our sad mortification, (when we saw the case as published in the regular reports,) that it contained errors which almost reversed the doctrine and reasoning of the judge on some points. The portion of the present opinion which we publish, may be possibly equally erroneous; although we took special pains to copy it ourselves, and corrected many words which were evidently wrong, and in one or two instances reversed the meaning conveyed as they stood. In our anxiety to get at the true and correct language of the court in this case, we were very forcibly reminded of a remark once made by the late Ebenezer Wilson, Jr., Esq., of Troy, N. Y., in reference to procuring a copy of a return to a certiorari. At a term of the old Rensselaer Common Pleas, held at Troy—Hon. Geoege R. Davis, first judge, presiding—Wilson moved on for argument, a certiorari from a justice’s court, and in handing up the papers to the court, he remarked: “ There, your honor, is a copy of the return in this case, for no man living can read the original.” Well, says Judge D., I should like to know how you got a copy if no man can read the original? “ I got it your honor, (says Wilson) after the manner of casting out evil spirits in former days, by fasting and prayer.”
      
      Saying nothing of the reputation of the court or the annoyance to the profession, copies of opinions of the court of appeals, especially those sent to Rew York city, ought to be something near correct, for they go from office to office, are copied and frequently printed, and used before the courts in many cases, long before the regular reports are issued, the reliance upon them being a necessity.—Rep.
     