
    Avery v. Vansickle.
    1. In an action brought under section 28 of the code of civil procedure, as amended March 30, 1874, to subject the separate estate of a married woman to the payment of a promissory note executed by her, neither party is entitled to demand a trial by jury, and hence an appeal lies from the judgment, to the district court.
    2. A judgment in an action to foreclose a mortgage executed by husband and wife, to secure the payment of the wife’s promissory note, constitutes no bar to a subsequent action to subject the separate estate of the wife to the payment of a deficiency arising upon the sale of the property mortgaged.
    3. A judgment against the husband, upon the joint promissory note of himself and wife, does not merge the right to charge the wife's separate estate with the payment of the note, in a subsequent action.
    4. Where a married woman acquires the title to property by purchase, and executes her promissory note therefor, an implication arises, in the absence of proof of a different understanding, that she thereby intended to charge her separate estate with its payment, and such implication is not affected by the fact that she, with her husband, executed a mortgage of the property purchased, to secure the payment of such note.
    6. In such case, the wife will not be permitted to testify that she had no intention to charge her separate estate with the payment of such note.
    Error to the District Court of Huron county.
    The original action was brought to subject the separate estate of Ann Avery, wife of Charles Avery, to the payment of the sum found due on their promissory note, which was in the following words and figures:
    
      “$1,030. New IjOKDOn, Huron County, O., July 6, 1870.
    “Two years after date, we promise to pay to the order of George Vansiclde the sum of one thousand and thirty'dollars, with interest payable annually in Now London, Ohio. Value received. Int. to commence July 27, 1870. “ Charles Avert,
    “Am Avert.”
    The note was secured by a mortgage executed by Charles and Ann Avery, on the real estate conveyed to the wife by Vansickle, the payee of the note, and was given witb the mortgage, to secure the payment of the parehase-price of the land conveyed. It appeared, from the record, that the mortgage had been foreclosed in a former action, and that the proceeds of the sale of the property mortgaged were exhausted in the extinguishment of prior liens on the property, leaving said mortgage debt wholly unsatisfied.
    It further appeared that, in said foreclosure suit, the amount due from said Ann Avery on said note was ascertained, and a judgment rendered for said amount against Charles Avery, but that neither be nor said Ann bad paid any part of the same, and that he was wholly insolvent.
    The petition prayed for a personal judgment against Ann Avery, and that her separate estate, specifically set forth in the petition, be subjected to its payment, alleging— a fact denied by the answer — that she intended and agreed to charge her separate estate with the payment of said note.
    She testified, on the trial in the district court, subject to exception, that, at the time tbe note was given, there was no agreement that her separate property should be charged with its payment, and that she had no intention of so charging it. There was no further evidence of intent to charge her estate, except that manifested by the transaction of the purchase of the property, and tbe execution of the note and mortgage.
    The district court gave judgment subjecting Mrs. Avery’s separate estate to the payment of the note, which judgment, by the present proceeding in error, it is sought to reverse.
    
      The assignments of error are:
    1. That the cause was not appealable from the common pleas to the district court.
    2. That the judgment in the action to foreclose the mortgage is a bar to the present action.
    3. That all right of action on the note was merged in the judgment against Charles Avery.
    4. That no charge was created against the separate estate of Mrs. Avery.
    
      Wickham & Wildman, and J. H. Rhodes, for plaintiff in error:
    1. The action was not appealable, and hence the district court had no jurisdiction. Ladd v. James, 10 Ohio St. 437; S. & S. 575; Keller v. Wenzell, 23 Ohio St. 579.
    2. As to the judgment in the action of foreclosure being a bar to the subsequent action against Ann Avery, see Freeman on Judgments, 240; 27 Ohio St. 674.
    3. As to merger, see 13 Mass. 148; Bigelow on Estoppel, 47; 18 Ohio, 279; 5 Ohio St. 33.
    As to whether the giving of the note raised an implication that Ann Avery intended to chai-ge her separate estate, see Levi v. Earl, 30 Ohio St. 147; 46 Mo. 532; 39 Barb. 555; White & Tudor’s L. C. in Eq. 743.
    
      Griffin 8) Williamson, for defendant in error:
    1. The action was appealable. S. & S. 589 ; 27 Ohio St. 47; 28 Ohio St. 68. The only remedy was in a court of equity. 20 Ohio St. 372; 30 Ohio St. 171.
    2. George Vansickle was not estopped by former proceedings. 2 Ohio, 389; 17 Ohio, 523; 17 Ohio St. 19; 11 Ohio St. 66 ; 112 Mass. 271; 10 Ohio, 304; 2 Wash, on R. P. 226, 227; 37 N.Y. 35; 42 N. Y. 613.
    3. The note was not a joint note. 8 Kansas, 585.
    4. As to the intention of Ann Avery to charge her separate estate, see 30 Ohio St. 147.
   Boynton, J.

The first error assigned upon the record is that the action below was one in which the parties were entitled to a trial by jury, and, consequently, that the same was not appealable to the district court. This question was, in effect, settled by Jenz v. Gugel, 26 Ohio St. 527, and. Allison v. Porter, 29 Ohio St. 136. In the latter case, it. was held that section 28 of the code, as amended March 30, 1874, did not create a new cause of action in favor of, or against, a married woman, where none existed before,, but that the section, as amended, was intended to prescribe-the eases in which she may sue or be sued alone, authorizing, in such suits, like proceedings and judgment, and its enforcement in all respects as if she were sole.

Assuming the action to he gover-ned by this section, as-amended in 1874, these cases are decisive of the question that no new cause of action was created, and that the character of the action was in no wise changed. That the section, in some of its features, is much involved, and the purpose of the legislature quite obscure, can not be doubted. Eor instance, how proceedings, in an action between husband and; wife, for divorce and alimony, or for alimony alone, can be conducted, and a judgment rendered and enforced, in all respects as if the wife were an unmarried woman, is not easy to comprehend. If a literal effect be given to the-words of the statute, the court would be required to dismiss the action in all snch cases.

It is, however, plain that it was not intended to remove the incapacity of a married woman to enter into contracts, binding at law, nor to authorize a recovery on less proof,, or proof of a different nature, than was required before the section was amended.

Before a judgment can be taken against her, on her-promissory note, it must appear that she had a separate estate to charge with its payment, and that she intended to-so charge it at the time she executed the note. These questions are clearly for the court.

The claim that a prayer for a personal judgment against a married woman ascertains the tribunal to try the facts, is wholly untenable. The statute expressly gives the right to-:such judgment in actions wherein she may be sued alone, and a prayer for such judgment in such actions, is, therefore, quite proper. If it followed from this that the cause was, of right, triable to a jury, actions for divorce would fall within the same right, as they are found in the same category with other actions wherein a personal judgment against a married woman is authorized. ¥e need not, however, pursue the argument, as it is well settled that the character of an action, as respects its being legal or equitable, is not determined by the nature of the relief demanded. Corry v. Gaynor, 21 Ohio St. 277; Jenks v. Langdon, id. 362.

It is next urged that the judgment in the action to foreclose the mortgage is a bar to the present action. There is no doubt that a former judgment upon the merits of the case is a bar to any subsequent action between the same parties or their privies upon the same cause of action, and conclusive not only as respects questions actually decided, but as to all others involved in the issue as made. Rut the ■judgment concludes inquiry into no question or subject-matter not within the issue to be tried, and as there is nothing in the record of the former action that would have authorized .an inquiry into the facts put in issue by the pleadings in the present case, the judgment therein constitutes no bar to the present action.

Nor do we think that the judgment against the husband of the plaintiff in the former action, merged or extinguished the right to proceed in equity to subject her separate estate to the payment of the note. It is true that the note, in form, is joint, and a judgment upon it, were the plaintiff discovert, and consequently liable thereon at law, would, within the authorities, constitute a complete bar to a subsequent action thereon. A joint obligation, where the obligors are all bound at law, creates but one debt, and where a judgment is entered upon it, whether against all or only a part of the obligors, all further remedy is merged in the higher security. Sloo v. Lea, 18 Ohio, 279; Clinton Bank of Columbus v. Hart, 5 Ohio St. 33; Reynolds v. P., C. & St. L. Ry. Co., 29 Ohio St. 602.

But in the present case the makers of the note were not, .in a legal sense, jointly liable thereon. No obligation was created against the wife which could be enforced at law, .and hence a joint remedy could not have been anticipated when the note was executed. Where a note or obligation is several as well ass joint, a judgment against one of the makers or obligors, in a separate action, is no bar to an .action on the same instrument against another, for the reason that an implied undertaking to submit to a separate action is involved in the several promise entered into.

The same implication arises in the case at bar, for, either the husband was alone liable on the note, or he was liable jointly with the wife’s separate estate, against which the remedy was wholly in equity, while his liability was strictly legal. A judgment against one of two or more joint makers of a written instrument constitutes a bar to a sub'sequent action on the same instrument, only where the makers are liable thereon at law.

It is finally objected that no charge was created against Mrs. Avery’s separate estate for the payment of the note or debt; and in support of this objection, it is first claimed, that there is no evidence showing her intention to create such charge; secondly, that the mortgage of the property purchased negatives the intent to charge any other estate; and lastly, that her testimony is decisive that no purpose to bind other property was by her entertained.

The facts are very simple. Mrs. Avery having a separate estate, added thereto a parcel of land purchased of the defendant on credit. She executed her note for the price with her husband as surety, and gave a mortgage on the property purchased to secure its payment. The proceeds Arising from the sale of the mortgaged property were exhausted in paying off prior liens. Her husband was insolvent. That she intended to pay for the property thus purchased, and of which she became sole owner, is but a just inference from the circumstances surrounding the purchase. She had but one way of paying, and that was out of her separate estate, to enhance the value of which the

property was bought. Where a married woman acquires the title to property by purchase, which becomes by force of the statute her separate estate, and executes her promissory note therefor, an implication arises, in the absence of proof showing a different understanding, that she thereby intended to charge her separate estate with its payment. And this implication is not at all affected by the execution of a mortgage as collateral security to the note. This was the precise question in Rogers v. Ward, 8 Allen, 387, where it was held that the execution by the wife of a mortgage to secure a bond given upon the purchase of property which became a part of her separate estate, did not in any degree affect or impair the equity of the obligee to enforce payment against such estate. See also Ballin v. Dillaye, 37 N. Y. 35. In such case the wife’s estate is the primary debtor, and the execution of a mortgage on the parcel constituting the subject of the sale and purchase, creates for the mortgagee a specific lien on the land described in the mortgage, leaving his right in equity against the remaining separate estate entirely unaffected. The statement of Mrs. Avery as a witness, that she had no intention to charge her separate estate, was incompetent. Her engagement was in writing, and could not, either in its terms or its inferences, be contradicted or varied by parol. Her intention must be gathered from the instrument executed, aided hy the circumstances under which it was made. The remark in Phillips v. Graves, 20 Ohio St. 387, that if a writing is not necessary to evidence the intention to charge, it may be shown by parol, was not intended as an intimation that in this class of cases, parol evidence is competent to vary the terms or legal effect of a written instrument. But where the engagement is neither in writing, nor required to be, parol evidence is admissible to show what the intention actually was.

Judgment affirmed.  