22 N.Y. 450, Yale v. Dederer

Citation:22 N.Y. 450
Case Date:December 01, 1860
Court:New York Court of Appeals

Page 450

22 N.Y. 450




New York Court of Appeal

December 1, 1860

Page 451


Henry M. Hyde, for the appellant.

Henry R. Mygatt, for the respondent.


The judge before whom this cause was last tried has found that the defendant, in giving the note upon which the action was founded, intended to charge her separate estate with its payment. In this respect only does the case, as now presented, differ from the same case when previously here (18 N.Y. 265). For, although the judge has also found, in his specification of facts, that she did charge her estate, yet this is a mere statement of the legal effect of the defendant's acts, and would have found a more appropriate place among the conclusions of law, drawn by the judge from the facts proved.

It does not expressly appear from the statement of facts, whether the title of the defendant to her separate estate was acquired before or after the acts of 1848 and 1849, nor consequently whether that title was legal or equitable. It is, perhaps, to be inferred from the form of expression used by the judge in describing the defendant's estate, viz.: "A separate estate consisting of three farms, " that it was a legal estate acquired subsequently to the passing of these acts. This, however, is immaterial, it having been settled, when this case was formerly here, that the statutes of 1848 and 1849 did not remove the general disability of married women to bind themselves by their contracts; but that the power conferred by those statutes, to hold to their separate use, and to convey and devise all their real and personal estate as if unmarried, carried with it the power to charge such estate substantially in the manner and to the extent previously authorized by the rules of equity in respect to separate estates.

To dispose of this case, therefore, we have only to ascertain whether a married woman having, prior to the statutes of 1848 and 1849, a separate equitable estate, could create a charge

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upon that estate, by giving a promissory note for the debt of her husband, intending thereby to charge her estate, but without indicating this intention in any manner by the contents of the note. It was settled, when the case was here before, that the bare giving of such a note did not bind the estate. It becomes necessary now to inquire whether the additional fact, that the wife, at the time of making the note, intended to charge her separate estate, changes the rule.

Much has been said, in the course of the decisions on this subject, in regard to the intention of the wife at the time of making the contract; and in order properly to appreciate the force of these remarks, a brief retrospect of the law of separate estates is required. I shall not attempt a review of the cases, confused and contradictory as some of them are, but desire to call attention to one or two features of the controversy carried on in the English courts for nearly a century, and which can hardly even now be considered as ended, in regard to the effect of the contracts of married women upon their separate estates. If the instrument by which the estate was created, conferred upon the wife either a general or qualified power of disposition, no one ever questioned her rights to execute this power; the doubts which arose, related to her right to dispose of or charge the property, independently of any such special authority; and this right was established soon after the introduction of such estates, upon the ground that the right of disposal was a necessary incident of the right of property.

That this universal jus disponendi was the sole and only foundation of the right in question is clear. Lord THURLOW, in the case of Fettiplace v. Gorges (3 Bro. C. C., 8), places the right upon this ground, and no other basis has ever been suggested for it. Assuming this then to be the foundation of the right, it is plain that the wife, to avail herself of it, must make some disposition of the specific property itself. It is clearly impossible to deduce, from the jus disponendi, which accompanies all rights of property, power to make any contracts, except such as related directly to the property to which the right of disposition is attached; and yet the Master of the Rolls, in Norton

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v. Turvill (2 Pr. W., 144), and in Standford v. Marshall (2 Atk., 69), held the separate estate of a married woman liable for the payment of her bond, although the bond in no manner referred to such separate estate; and in the latter case was given for money lent to the husband.

The reasoning upon which these cases are said to have proceeded, and upon which they were followed by Lord THURLOW, was this: That it being the rule in equity, that a wife who had a separate estate might deal with such estate in the same manner as if she were sole: it followed that such estate was liable for her engagements, in the same manner as it would be if she were a feme sole. The equitable rule, which being founded entirely in the right of the wife to dispose of her property, could go no further than to allow her to make contracts specifically appropriating or charging her separate estate, was thus expanded, so as to enable her to contract generally without in any manner referring to such estate. The doctrine was justly...

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