, 1866-07-20
sUPREmE COURT oPINioN.
JA'O' pS'AoH, Plaintiff in Error,

. note and mortgage Of even date, executed b,
defendants In error, to plaintiff in error, an,
upon the hearing the defendants demurred, Of
the ground that the Judge had no Jurisdiction Il
tnea ana mere try and determine the matter il
ISSUE and Esther N. Lawrence. one of the de
PENDANTS and the wife Of A. !. La1rencs 10
separate demurrer, alleged that the cause Of &C
Hon was founded on promissory pots executed
oy married woman, and that the mortRaR,
was executed upon her separate property anS
given 70 secure the payment Of prommissorl
note made by the defendents, and that she wa
not therefore liable on said note, and that sale
mortgage was void, and pro formd judgmen
sustaining said demurrer was rendered in The
court below. The FIRST ground of demurrer ha,
not been urged in this court and is therefor,
here dismissed, and it remains to be considered
oy the court whether the mortgaged premise,
may be sold and whether a personal judgment
may be rendered against Esther n. Lawrence
Tor any balance that may be unsatsfed after the
mortgaged premises are sold.
We are all of the opinion that a married wo.
man may, lnder our laws, by joining 10 the
conveyance with her husband charge her owu
separate estate by mortgage with the payment
OF oeot' Sec 3, page 430, Statutes Of 1863,
pIoYldes that married woman shall be bound
by deed affecting her own real estate if she ioin
her husbard in the Conveyance and aekpowI.
euge the iame IN the manner prescribed. A
mortgage IS deed affecting real estate" and
10 THIS case the mortgage was duly executed
True, Sec 2Ss, page l44 Statutes 1863. provides
that all real and personal estate belopeips to
any marrisd woman in her own right, shall NOT
oe liable 70 attachment or upon execution upon
any liability or judgment against her husband.
aud yet ltls true, too, that Sec. 29O of the same
aSt PtoVld,s that a married woman may waive
the benefit of this exemption in the manner
there stated. These sections, in Connection
with Sec. :, page 45O, would seem to render
TINS question entirely clear. The note and
mortgageTere executed simultaneously and are
70 De SO Considered, and the fact that suit was
instituted on the note aud for the foreclosure
oil the mortgage will not at all effect the liability
Of the morgaged premises, 10 whatever light
the liability OF Esther NJ. Lawrence, as a party
TO the notS may be considered. Pfeifer vs.
Rhcine, II. Cal. page 649, DeLeon rs Higue.
ra, 18th Cal. page 496.
Is the aiu;if entitled to a personal Judgment
against Either NJ. Lawrence on the note for auy
balance that may remain due efter the sale of
the mortgiged premises.
sThe law may be considered as somewbst
aHoat as to how far a feHs covert NAV be holden
on note executed by bef either with or win
out her husband and bow far herseparate estate
may be liable for her debts and obligations con-
-racted during coVerture, and the decisions on
'hese questions are somewhat contradictory,
is Gfher Bhty are e noe Der powers and the lin
or definitely defined. As at pEesent advised the
court is not prepared to hold that marrid wo-
nan may execute her note and make contracts,
md incur liabilities generally unless for neces-
Iaries and perhaps in other limited cases, and |
hat her separate estate shall he held liable for
my such general debts contracted by het. Sec |
ion 6, p 50 has been cited as giving this power,
md creating this liability. This section pro-
tides that a married woman may sue and be |
ued without joining her husband or having her |
husband joined with her, aud it is insisted that
his provision carries with il by implication the |
,ower to make debts and the consequent labil- /
ty of the Jeme eoUertS estate for their satisfac-
ion. This provision declares that in certain |
,ases and for certain purposes a fsme eoUert may
ue and be sued without joining her husband,
md that is all it does declare and no satisfacto-
y reasons are believed to exist for giving by
any other or different power.
1t has been held by the courts of England and |
nay be regarded perhaps rs the settled law
here, that where a woman has separate estate
md joins in a note or bond with her husband,
Ter bond will bind her separate property and |
hat whether there is any intention expressed on
be instrument to. that effect, the estate being |
cached by implication. different principle |
however has been established generally in the |
courts of this country, and the better law is be-
ieved to be as stated by Chancellor Kent in the !
ase of the Methodist Episcopal Church VS..
aques 3f John. Cha. R., p 7S (lsl7), which |
ase was su iected to an able and profound dis
ussion both in tfe court of Chancery and the |
ourt of Errors Of New York. The Chancellor
here held that married womaR's ,'incapacity
5 general and the exception is to be taken |
tricty and to be shown in every case because
t is against the general policy and immemorial
r A. - Tr 81 -
o the court of Errors was reversed but the doc
rine enuuclated by Kent has been generally fol-
owed in this country and may be regarded the
REVEALING rule See lead. cases in equity, Vol.
, D 405 Where the oases both in England and
his country are colated and the questions in
olved FUZZY examined. '
Now as under the general policy and imme-
norial doctrine of the law" a married woman's
egaI existence and capacity was merged in her
husbands and supended during coverture and
IS this incapacity was general, it follows that
be can make such Contracts only as may be ex-
'ressly provided fol by law aud as our statute,
lowhere gives her the power to make notes and
contract debts, except for the purposes and in
he cases herein before stated, it is hence be-
ie7ed to be law, that she cannot contract debts
generally that will bind either her husbands
state or her own separate property by convey
nee as provided by law.
In the institution of marriage the highest
lream of earthly happiness sleeps and its inti-
nate and important relations largely affect not
,nly indiyidpal happiness but the progress of
latfohs, and the general civilization Of the race
md there is hence no subject that should re-
,eiVe from the law maker more careful and con-
derate deliberation whetheEsin the questions
elatiye 10 property or tie terms OF union be-
ween the parties. The old anuihilGtion'of wo-
ransnd the oneness of marriage will probably |
oon exist only in tradition and in musty books.
70 the wife Of to-day is given the "amPhibious
character Of a fsme eorert and fsme sole.
Doubtless on the whole the relaxation Of this |
,lden rigor is wise and the remedial and protect
ng changes of later years is founded in prinei-
Dles of social justice aud humanity and yet prob
IDLY in some Of these reformatory directions the
limits Of prudence may have been reached.
.r ga WYoHB, J.