June Term, 1860.

#### Rogers vs. Weil and others.

In an action to foreclose a mortgage given by a husband and wife to secure the payment of their bond (executed by her during coverture), it is erroneous to render a personal judgment against the wife as well as the husband, for any deficiency which may remain due after the sale of the mortgaged premises, unless it is shown in the complaint that the contract related io her separate property, and was one upon which she might become liable to a personal judgment.

That part of the judgment of the inferior court, which is against the wife personally for such deficiency, may be reversed, and the residue of the judgment be affirmed.

APPEAL from tbe Circuit Court for *Milwaulcee*County.

Tbe case is stated in tbe opinion of tbe court.

Goon, *Buchan &*Cotton, for appellants.

*James 8*Brown, for respondent.

November 19.

*By the*Court,

Cole, J.

This was an action to foreclose a mortgage. Tbe mortgage was executed by *Eliza Adelaide Wiel*and *Baruch 8. Weil,*to secure tbe payment of a certain bond in tbe penal sum of thirty-five thousand dollars, conditioned, &c., given by them to tbe respondent. Tbe complaint represents that *Eliza A.*and *Baruch 8.*were husband and wife at tbe commencement of tbe action. *Mrs. Weil*made default. Judgment of foreclosure and sale was rendered, and also a judgment against *Mrs. Weil*and her bus-band, for any deficiency tbe sheriff might report due after tbe sale óf tbe mortgaged premises. And tbe only question we have to consider is, whether a personal judgment could be taken against *Mrs.*Weil, for any deficiency which might be found due after tbe application of tbe proceeds of tbe sale. *665We suppose it could,not In tbe case of *Wooster vs. Northrup et al.,*5 Wis., 245, tbis court decided tbat tbe act of legislature entitled *“*an act to provide for tbe protection of married women in tbe enjoyment of tbeir own property,” did not rebeve tbe wife during coverture from ber disability at common law to make contracts in such a manner as to become liable to a personal action upon them. Tbis decision bas been very much shaken, if not overruled, by tbe case of *Conway vs. Á. Hyatt Smith et at,*decided at tbe present term,' in wbicb a majority of tbe court beld tbat a married woman may contract in respect to tbe improvement and management of ber own property, and render berself liable to a personal action upon such contracts. I felt constrained to dissent from tbe opinion in tbat case, for reasons not necessary to be stated bere. Still, at best, we all tbink tbat a party ought not to bave a personal action upon a contract made by a married woman during ber coverture, without showing in tbe complaint tbat tbe contract related to ber own separate property, and was one upon wbicb she might become liable to a personal judgment. Tbis not being-done in the complaint in tbis case, it was erroneous,to take a personal judgment against *Mrs. Weil*for any deficiency.

Tbe counsel for tbe respondent contends tbat it nowhere appears in tbe case tbat *Miza Adelaide*and *Baruch S. Weil*were baron and feme at tbe time they executed tbe bond and mortgage. But tbis is a mistake as to what does really appear upon tbe record. f Tbe bond and mortgage both set forth tbat they are made by *“ Eliza Adelaide Weil*and *Baruch S. Weil, her*husband, both of,” &c., showing clearly tbat they were married at tbe time these instruments were executed.

So much of tbe judgment of tbe circuit court as gives a personal judgment againt *Mrs. Weil*for any deficiency, must be reversed, and the judgment of the circuit court, in all other respects, is affirmed.