Dickerman v. Abrahams

Harris, J. By the act of 1848, for the more effectual protection of the property of married women, (Sess. Laws 1848, p. 307,) it was declared, that the real and personal property of a married woman should thereafter be her sole and separate property, as if she were a single female. Though Mrs. Abrahams was married before the act took effect, so that her husband would have a vested interest in such property as she had previously acquired, yet it appears, from the evidence in the case, that the lot upon which the building was erected for which the plaintiff furnished the materials in question, was purchased in November, 1848. It having been conveyed to her in her own right, it became, by operation of the statute, “ her sole and separate property as if she were a single female.” The act was an enabling' statute, authorizing the wife to take and hold property to her sole and separate use. Being capable of holding prop^ erty, she was also capable of conveying it. (1 R. S. 719, § 10. Albany Fire Ins. Co. v. Bay, 4 Comst. 9.) We have, then, the case of a married woman holding separate property, and the question presented is, whether the plaintiff has shown such a state of facts as entitles him to have his debt charged upon it. It is well settled that, at law, a married woman cannot make a contract which will bind either her person or her property. It is equally well settled that, in equity, she cannot by contract bind her person or her property generally. But equity makes a distinction between her separate property and her property generally. In respect to the one, she is regarded as a single female—in regard to the other, she is under the legal disabilities of a married woman. It is not enough that the wife has contracted the debt. It must also appear that she intended to charge her separate estate with its payment. When this is made to appear, it is within the jurisdiction of a court of equity to enforce such payment out of her separate estate, as a charge thereon. Having the power to dispose of her own sep [553] arate property, she has, of course, the power to charge it with the payment of her debts. A creditor, therefore, before he can. succeed in charging the separate estate of a married woman with the payment of his debt, must show, not only that she contracted the debt, but that it was contracted, either for the benefit of her separate estate, or for her own benefit upon the credit of such estate. (North American Coal Co. v. Dyett, 7 Paige, 9. S. C. on appeal, 20 Wend. 570. Curtis v. Engel, 2 Sand. Ch. 287. 2 Story’s Eq. Jur. §§ 1897 to 1401.) In such a case the debt is enforced as a charge, and not as a personal liability. The judgment is in rem, and not in personam. The application of these well settled and familiar principles to the case in hand, is easy. Mrs. Abrahams was the owner of real estate. She held it to her own exclusive use. It was as free from the control or disposition of her husband, as though she had been unmarried. She had the right to dispose of it, and, of course, to incumber it, as she pleased. Under these circumstances she undertook to improve it. She obtained materials from the plaintiff for that purpose, and agreed to pay him out of her separate estate. The debt was thus created not only upon the credit of her separate estate, but for its benefit. The husband ought not to be, and I suppose could not be, made liable for it. The estate of the wife ought to be, and clearly is, chargeable with its payment. It is the province of a court of equity to declare and enforce that charge. The judgment at the circuit, therefore, so far as it goes, is right. It declares that the plaintiff is entitled to the payment of his debt out of the separate estate of Mrs. Abrahams. The effect of the judgment is to make the debt an incumbrance upon her estate. It is, undoubtedly, imperfect, in that it does not provide for enforcing the charge thus declared. It is not a case for issuing an execution. That mode of enforcing a judgment is only authorized when the judgment requires the party to pay money or deliver specific real or personal property. It is inappropriate where, as in this case, the judgment merely declares the plaintiff’s right to have his debt paid- out of a particular estate. (See Code, §§. 285, 286.) But this omission, while it renders a further ap [554] plication to the court necessary before the plaintiff can take the effect of the judgment he has obtained, does not invalidate the judgment itself. I am of opinion, therefore, that it should be affirmed, with costs to be taxed. In the case of Arthur Mooney against the same defendants, (tried before Justice Wright,) the action was brought by another mechanic for work and materials furnished, under similar circumstances, for the same building-. The facts in that case are substantially the same as in this. In that case the judge, at the circuit, nonsuited the plaintiff. If I am right in the view I have taken of the questions which these cases present, it follows that the nonsuit should be set aside, and a new trial granted, with costs to abide the event. Watson, J., concurred.