Third National Bank v. . Blake

Earl, J. Judgment was recovered in this action against both defendants upon a note made by the defendant Clarence A. Blake, and indorsed by his wife, the other defend'ant, in the following form : “I hereby charge my separate and personal estate for the payment of the within note.” It is now claimed, by the wdfe that the judgment should be reversed, upon two grounds, which may be separately considered. First. It is said that the indorsement became a mortgage upon her separate estate, and hence that the .bank could.not *263 take it under the national banking act. (U. S. B. S., §§ 5136, 5137.) It has been decided that a national bank cannot take a mortgage-upon real estate to secure a loan made on the faith thereof. But this indorsement is not a mortgage in any sense. It did not have the effect of conveying any property or of giving any specific or general lien upon any property. The indorser still had the right to deal with her property in all ways just as if she had not made the indorsement. The only practical effect of such an indorsement was to create against her a liability which could be inforced, as if she wore not a married woman, out of any property which would be liable to execution whether she had it when she made the indorsement or subsequently acquired it. It is not necessary, in such a case, to resort to a court of equity to inforce the liability. It is not inforced by a proceeding against property upon the theory of a lien, but by a common-law action in which a personal judgment is rendered. (Corn Exchange Ins. Co. v. Babcock, 42 N. Y., 613.), Hence this indorsement must be treated as personal security within the meaning of the banking act. Second. It is contended that there was an extension of time to the maker which discharged the indorser. The judge at the trial term found that the extension was with the consent, knowledge and acquiescence of the indorser, and this finding was warranted by the evidence. I think it is a fair inference, from all the -evidence, that the three papers marked A, B and C were all parts of the same negotiation, and they must all be construed as if executed at the same time. Paper “A” could have no effect unless Mr. Blake performed as therein stipulated, and there is no evidence that he did so perform or that that paper ever became operative. But even if it did, paper “B,” subsequently executed by Mrs. Blake, took from her any defense which she might otherwise have had on account of an extension of time previously made without her knowledge or consent. In that paper, executed under seal, she recites her liability upon the note in suit, and that the payment thereof was a charge *264 upon her separate estate; that the hank had agreed with her husband to extend the time of payment upon the note, as provided in paper “ C,” and that it was part of the agreement that she was to give a • new note in hen of the note in suit the payment of which was to be extended; and then she says, in consideration of the premises, she consents to the extension of time and waives all defenses which she may have as indorser on account of the extension of time. This was a valid agreement, based upon a sufficient consideration, and was binding upon her. Her indorsement upon the note was, in form, a charge upon her separate estate, and she could, therefore, deal with the obligation as if she were a feme sole. She was not obliged to set up any defense which she had. She could, defore or after the suit, waive any defense. She had the same power to give her indorsement new vitality as she originally had to make it. There was, therefore, no error, and the judgment must be affirmed, with costs. All concur, except Allen and Miller., JJ., absent. Judgment affirmed.