Burchard v. Dunbar

• Decision Date: 30 September 1876
• Citation: 25 Am.Rep. 334,1876 WL 10230,82 Ill. 450
• Parties: CELESTIA L. BURCHARDv.AARON DUNBAR.
• Court: Illinois Supreme Court

82 Ill. 450

1876 WL 10230 (Ill.)

25 Am.Rep. 334

CELESTIA L. BURCHARD

v.AARON DUNBAR.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kankakee county; the Hon. NATHANIEL J. PILLSBURY, Judge, presiding.

This was assumpsit, by appellee, against appellant and her husband, Patrick H. Burchard, on an instrument in writing, of which the following is a copy:

+-------------------------------------+
                ¦“$403.44¦HAMILTON, January   1, 1866.¦
                +-------------------------------------+
                

For value received, we, jointly and severally, promise to pay A. D. Dunbar, or bearer, $403.44, in three equal annual payments, the first payment to become due January 1, 1867, with annual interest on all sums remaining unpaid, and the whole to become due January 1, 1869.

The undersigned, Celestia L. Burchard, wife of the undersigned P. H. Burchard, for value received, further promises and agrees that her separate estate, both real and personal, shall be charged with the payment of the said sum of $403.44 and interest; and that the said moneys hereby agreed to be paid shall be a lien and charge upon her separate estate, and she hereby declares it to be her intention to charge, and hereby does charge, her separate estate with the payment of said sum of $403.44 and interest.

CELESTIA L. BURCHARD.

P. H. BURCHARD.”

Appellant filed a separate plea, in which she avers that “the said plaintiff ought not to have or maintain his action, etc., because the several causes of action in the declaration are one and the same, viz: the note set out in first count, and not other or different; that she, before and at the time of making said supposed promises, was the wife of her co-defendant, Patrick H. Burchard, and hath so ever since been, and still is; that the sole consideration for said note was the sole and individual indebtedness of the said Patrick H. Burchard to the said plaintiff, for money due upon an account stated between them, and that she signed the said note only, in fact, as security for the said Patrick H. Burchard, her husband, and for no other cause of consideration whatever, and denies that, by the laws of the State of New York, she thereby charged her separate estate, and wherefore she prays judgment, etc.”

The following stipulation between the parties was read in evidence, on the trial, without objection:

“It is hereby stipulated between the parties that, upon the trial of said cause, the parties may offer in evidence, under the pleadings upon file, any matter, or thing, or defense, or reply any matter or thing, as if any other pleas, pleadings, defenses or replications were filed therein; and it is further stipulated that the said Celestia L. Burchard was the wife of P. H. Burchard at the time said instrument in first count of plaintiff's declaration was made, and that the same was made in the State of New York; and that the printed Statutes of New York and decisions of the Court of Appeals, or Commission of Appeals, may be introduced upon argument, by either party, to show what the law of New York was and is on said note and matters in dispute in said cause; and that the allegations in the plea filed herein as to said note in suit being given solely for the individual indebtedness of the said defendant Patrick H. Burchard, and signed by said Celestia L. Burchard as security for him, and for no other consideration, as in said plea alleged, is true, and if it shall become material to them that Celestia L. Burchard, at the time of the execution of said note, or at any time since then, had property, at any time before final judgment, proof thereof may be introduced as controverting the same, and either party may introduce such proof before the final determination of said cause, or next term of this court; that nothing in this stipulation shall bind either party in any other suit, trial or litigation between said parties, or either of them.

Dated September 27, 1875.

BONFIELD & PADDOCK,

Attorneys for plaintiff.

G. S. ELDRIDGE,

Attorney for defendants.” Certain statutes and decisions of courts of New York were read on the argument, but such of them as are deemed material to the questions arising in the case are referred to in the opinion, and therefore need no mention here.

Judgment was given for the plaintiff, against both defendants, for $465.20 and costs, and Celestia L. Burchard, after moving for a new trial, which was refused, appeals to this court.

Mr. G. S. ELDRIDGE, for the appellant.

Messrs. BONFIELD & PADDOCK, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The instrument on which suit is brought having been executed in the State of New York, we must resort to the law of that State to determine the nature of the obligation it imposes on the appellant. Prior to the enactment of recent statutes, and decisions thereunder, it is quite clear there was no substantial difference in the law, in this respect, in the State of New York and this State. Thus, it was held in Yale v. Dederer, 18 N. Y. 265, and 22 Id. 454, that the signing of a promissory note by a married woman, as surety for her husband, merely, did not, even in equity, bind her separate estate, notwithstanding she, in fact, intended it to have that effect; and this ruling is referred to with approval and followed in Carpenter v. Mitchell, 50 Ill. 470; Williams v. Hugunin, 69 Id. 214; Bressler et al. v. Kent, 61 Id. 426. But in Yale v. Dederer, supra, the court went further, and held that, in order to create a charge upon the separate estate of a married woman, the intention to do so must be declared in the very contract which is the foundation of the charge, or the consideration must be obtained for the direct benefit of the estate itself; thus, by implication, holding that a charge upon the separate estate of a married woman might be created where the intention to do so is declared in the contract which is the foundation of the charge, or the consideration is for the direct benefit of the estate itself. And in The Corn Exchange Insurance Co. v. Babcock, 42 N. Y. (Appx.) 613, the Commission of Appeals so expressly ruled, and, also, that it was unnecessary that the contract should contain a description of the property to be charged. This point has never arisen for adjudication in this court, nor is it now necessary to indicate what our conclusion would be were...