Peake v. LaBaw

The separate estate of Mrs. Labaw was the legal title to land hold by her by virtue of the married women’s act. She had the legal title, and there was no trust in any one. And the only question in the case is, whether a simple endorsement of a note by a married woman is such charge upon her separate legal estate as will be enforced in equity.

*282Before the married women’s act, legal estates in fee could be held and were held by married women. The making or endorsement of a note, or executing a bond or mortgage, could not bind it either at law or in equity, without the separate acknowledgment directed by statute. The married women’s act did not, in terms, change this; it was not intended to change it. No change was required to give effect to any provision of that act. The proposition that the owner of property must have, as an incident to the ownership, the right to charge and encumber it, applied to legal estates held by married women before that act, but did not have the effect contended for.

Since the passage of that act here, and similar acts in other states, the courts have held certain contracts of married women, to create charges on their separate estates, which will be enforced in equity. This was in analogy to the doctrine of equity, by which certain contracts made by married women having estates held in trust for them, were enforced in equity as against their trust estates. Debts contracted by them were paid only out of the income of these estates for the life of the woman.

The courts of this country have declared the estates of married women held-under these acts, to be liable for debts contracted by them for the benefit of these separate estates, or for their own benefit on the credit of these estates. But they go no farther than this. The Court of Appeals in New York, in the final decision in Yale v. Dederer, 22 N. Y. 450, holds this to be the limit of the power of a married woman to charge her estate, unless done by an instrument properly executed for that purpose. The same doctrine is held by the Supreme Court of Massachusetts in Willard v. Eastham, 15 Gray 328. Chancellor Green, in Johnson v. Cummins, 1 C. E. Green 104, says: “ It must be assumed that the wife had a separate estate, which she might lawfully charge with debts created for the benefit of the estate, or for her own support and benefit;” and again, “In order to bind the estate, it must appear that the engagement was *283made in reference to and on the faith and credit of the estate.”

In the case of Armstrong v. Ross, 5 C. E. Green 109, this court took the same view of the subject, and although it was not declared that the estate could not be made liable in any other way, tho means of making her estate liable are stated in such manner as imply that they are the limit of the power.

I am of opinion that the separate estate held under the married women’s act, cannot be made liable to be charged in equity by an accommodation note, or an accommodation endorsement made by her. The courts have gone far enough in construing these acts as removing disability of coverture, and I am not willing to take another step in that direction. All the protection given by the law to a married woman on account of her disability or being under marital influence, will be taken away, if it is held that becoming security for the act of another, or signing accommodation paper, will bind and take away her separate estate.

The bill must be dismissed.