Me. Justice Westcott
delivered the opinion of the court.
The basis of this action is the following promissory note:
“ $700.00. St. Augustine, August 3,1869.
Twelve months after date I - promise to pay to the order of Walter Ginnity seven hundred dollars, with interest, value received. Frances Snow.”
This note is endorsed :
■ “ Jennie P. Speab.
Walter Ginnity.”
This action is brought by Dollner, Potter & Co., the en- • dorsees of Walter Ginnity, against Frances Snow as the maker of said note, and her husband Henry M. Snow, and against Jennie P. Spear, the plaintiffs alleging’ that she “ endorsed the note at the time it was made as security thereon and guaranteed the payment of the same.” Her husband is also a party. The. plaintiffs allege that the consideration for which said note was given was property purchased and held by the two married women as their “ separate estate.” The plaintiffs pray judgment for principal and interest of said note against defendants, Frances Snow and Jennie P. Spear, “ and that the same be levied and collected out of their or either of their separate estates.” To this complaint the defendants, the married women, demur, the ground of the demurrer being “that the complaint does not state facts sufficient to constitute a cause of action.”
This demurrer is'Sustained. There is judgment dismiss[92]*92ing the complaint, and from this judgment this appeal is prosecuted.
The general question, therefore, presented by the pleadings is the sufficiency of the complaint. The decision of the question thus presented involves, to a limited extent, a consideration of the general subject of the rights and powers of married women under our constitution and statutes. This complaint is defective in that it fails to set up the character of the separate estate sought to be bound by the judgment. Both before and since the statute, there could be separate estate of the wife which, beyond question, could not be made subject to the promissory note of the wife. It is true that as to her separate estate the wife is considered in equity, for most purposes, as a feme sole, whether such estate was acquired before or since the statute ; yet the common and necessary doctrine both in England and the United States is, that she is so only so far as the deed creating the estate makes her so. Any act against the terms of the instrument creating the estate by which the wife even consents to a charge, would be ineffectual for want of power to create a charge. Neither the constitution nor the statute-prohibits the wife from acquiring, since their enactment, such a separate estate as was recognized and known before their existence. They did not in this respect restrict her power to become the beneficial subject,- of a settlement or grant made with such restrictions, powers and trusts, conformable to law, as the grantor might deem proper. If under such instrument the property was to .remain in the care and management of her trustee, and she was to have the use of the rents, issues and profits thereof, the statute did not have the effect to transfer this management and the right to the profits to the husband. Now, this separate estate, which we see was authorized before as well as since the statute, was a creature of a court of equity to-protect the wife against the marital rights of the husband.[93]*93It was an equitable estate. The legal title was in a trustee for the benefit of the wife. 4 Penn. State, 429 ; 4 Conn., 10. The law as to such separate estate, so far as it can be applicable to or arises out of this case, and beyond that point we do not go, is that the amount of the wife’s promissory note, given for property purchased to be her separate estate, and for .the direct benefit of such estate, is in equity a charge upon her separate estate, if such. charge is consistent with the restrictions imposed by the donor or grantor as part of the terms of the gift or grant. As to such estates as we are .now treating, this is the rule, whether the estate was created before or since the statute. In suits seeking to subject separate estate of this character, as remarked by Judge Comstock in Yale vs. Dederer et ux., 18 N. Y., 268, the trustee having the title is “ an indispensable party.” The trustee not being before the court, we cannot see how such separate estate can be affected or charged with this debt. 3 Yes., -443; note to 2 Story’s Eq., 11 Edition, §1396.
Again, in order to make out a charge against such separate estate, the complaint must necessarily set forth the deed or instrument creating the trust, or the nature'and incidents of the trust estate, as upon its terms depends the power to create the charge. It is thus clear that this complaint fails to state facts sufficient to make this amount a charge against such separate estate, and that an indispensable party defiendan t is omitted to be made. Again, these plaintiffs fail to allege the present existence of any separate estate, and yet pray a j udgment for a sum to be satisfied out of it. 31 Ala., 443; 26 Ala., 337; Voor. Code, 187, and cases cited.
What has been said is upon the hypothesis that the estate here sought to be bound is what is strictly known as the equitable, separate estate of the wife. Now the property which the wife may acquire is necessarily limited to two kinds, viz.: that in which she has an equitable title, and that in which she has the legal title and of which she is the [94]*94owner. What is before said covers and embraces all that property in which she may have an equitable title only, and that strictly and properly is her “ separate estate,” the estate which the plaintiffs here seek to charge. We. might here cease the treatment of this question and dispose of the case upon the grounds before stated, but it is not deemed improper to briefly allude to the constitutional provisions as well as the statute upon this subject. The property which the wife acquires under the constitution (other than separate estate as before described,) and to which she has the legal title and of which she is owner, is called by the constitution her “ separate property.” The constitution did not propose, however, to divest the wife of a right to acquire a strictly separate estate, nor did tire statute before the constitution render it impossible for the wife to acquire a separate estate, except upon the condition that it was to remain in the care of the husband, he to have the right to the hire and issues thereof. The purpose of the whole law is to give to the wife additional rights, not to destroy those before existing. She could take just such equitable interests as the deed gave, no more, no less. The statute regulated and controlled property in which title was in the wife at the time of marriage. It provided that her title should continue, separate, independent and beyond the control of her husband, not to be taken in execution for his debts notwithstanding her coverture, but the property was to remain in the care of her husband, and the wife was not permitted to sue him for the rents, hires or issues of property to which she had separate and independent title under the act. t This must be restricted in its application to such property only as would, by virtue of the marital rights of the husband, have otherwise passed to him, or to his care and management—that is such property as to which the husband, by virtue of marriage, became entitled to ownership or control. The statute further provided, “ that married women may hereafter be[95]
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Me. Justice Westcott
delivered the opinion of the court.
The basis of this action is the following promissory note:
“ $700.00. St. Augustine, August 3,1869.
Twelve months after date I - promise to pay to the order of Walter Ginnity seven hundred dollars, with interest, value received. Frances Snow.”
This note is endorsed :
■ “ Jennie P. Speab.
Walter Ginnity.”
This action is brought by Dollner, Potter & Co., the en- • dorsees of Walter Ginnity, against Frances Snow as the maker of said note, and her husband Henry M. Snow, and against Jennie P. Spear, the plaintiffs alleging’ that she “ endorsed the note at the time it was made as security thereon and guaranteed the payment of the same.” Her husband is also a party. The. plaintiffs allege that the consideration for which said note was given was property purchased and held by the two married women as their “ separate estate.” The plaintiffs pray judgment for principal and interest of said note against defendants, Frances Snow and Jennie P. Spear, “ and that the same be levied and collected out of their or either of their separate estates.” To this complaint the defendants, the married women, demur, the ground of the demurrer being “that the complaint does not state facts sufficient to constitute a cause of action.”
This demurrer is'Sustained. There is judgment dismiss[92]*92ing the complaint, and from this judgment this appeal is prosecuted.
The general question, therefore, presented by the pleadings is the sufficiency of the complaint. The decision of the question thus presented involves, to a limited extent, a consideration of the general subject of the rights and powers of married women under our constitution and statutes. This complaint is defective in that it fails to set up the character of the separate estate sought to be bound by the judgment. Both before and since the statute, there could be separate estate of the wife which, beyond question, could not be made subject to the promissory note of the wife. It is true that as to her separate estate the wife is considered in equity, for most purposes, as a feme sole, whether such estate was acquired before or since the statute ; yet the common and necessary doctrine both in England and the United States is, that she is so only so far as the deed creating the estate makes her so. Any act against the terms of the instrument creating the estate by which the wife even consents to a charge, would be ineffectual for want of power to create a charge. Neither the constitution nor the statute-prohibits the wife from acquiring, since their enactment, such a separate estate as was recognized and known before their existence. They did not in this respect restrict her power to become the beneficial subject,- of a settlement or grant made with such restrictions, powers and trusts, conformable to law, as the grantor might deem proper. If under such instrument the property was to .remain in the care and management of her trustee, and she was to have the use of the rents, issues and profits thereof, the statute did not have the effect to transfer this management and the right to the profits to the husband. Now, this separate estate, which we see was authorized before as well as since the statute, was a creature of a court of equity to-protect the wife against the marital rights of the husband.[93]*93It was an equitable estate. The legal title was in a trustee for the benefit of the wife. 4 Penn. State, 429 ; 4 Conn., 10. The law as to such separate estate, so far as it can be applicable to or arises out of this case, and beyond that point we do not go, is that the amount of the wife’s promissory note, given for property purchased to be her separate estate, and for .the direct benefit of such estate, is in equity a charge upon her separate estate, if such. charge is consistent with the restrictions imposed by the donor or grantor as part of the terms of the gift or grant. As to such estates as we are .now treating, this is the rule, whether the estate was created before or since the statute. In suits seeking to subject separate estate of this character, as remarked by Judge Comstock in Yale vs. Dederer et ux., 18 N. Y., 268, the trustee having the title is “ an indispensable party.” The trustee not being before the court, we cannot see how such separate estate can be affected or charged with this debt. 3 Yes., -443; note to 2 Story’s Eq., 11 Edition, §1396.
Again, in order to make out a charge against such separate estate, the complaint must necessarily set forth the deed or instrument creating the trust, or the nature'and incidents of the trust estate, as upon its terms depends the power to create the charge. It is thus clear that this complaint fails to state facts sufficient to make this amount a charge against such separate estate, and that an indispensable party defiendan t is omitted to be made. Again, these plaintiffs fail to allege the present existence of any separate estate, and yet pray a j udgment for a sum to be satisfied out of it. 31 Ala., 443; 26 Ala., 337; Voor. Code, 187, and cases cited.
What has been said is upon the hypothesis that the estate here sought to be bound is what is strictly known as the equitable, separate estate of the wife. Now the property which the wife may acquire is necessarily limited to two kinds, viz.: that in which she has an equitable title, and that in which she has the legal title and of which she is the [94]*94owner. What is before said covers and embraces all that property in which she may have an equitable title only, and that strictly and properly is her “ separate estate,” the estate which the plaintiffs here seek to charge. We. might here cease the treatment of this question and dispose of the case upon the grounds before stated, but it is not deemed improper to briefly allude to the constitutional provisions as well as the statute upon this subject. The property which the wife acquires under the constitution (other than separate estate as before described,) and to which she has the legal title and of which she is owner, is called by the constitution her “ separate property.” The constitution did not propose, however, to divest the wife of a right to acquire a strictly separate estate, nor did tire statute before the constitution render it impossible for the wife to acquire a separate estate, except upon the condition that it was to remain in the care of the husband, he to have the right to the hire and issues thereof. The purpose of the whole law is to give to the wife additional rights, not to destroy those before existing. She could take just such equitable interests as the deed gave, no more, no less. The statute regulated and controlled property in which title was in the wife at the time of marriage. It provided that her title should continue, separate, independent and beyond the control of her husband, not to be taken in execution for his debts notwithstanding her coverture, but the property was to remain in the care of her husband, and the wife was not permitted to sue him for the rents, hires or issues of property to which she had separate and independent title under the act. t This must be restricted in its application to such property only as would, by virtue of the marital rights of the husband, have otherwise passed to him, or to his care and management—that is such property as to which the husband, by virtue of marriage, became entitled to ownership or control. The statute further provided, “ that married women may hereafter be[95]*95come seized and possessed of real and personal property during coverture by bequest, demise, gift, purchase or distribution,” not to be subject to the debts of the husband, but to remain in his care and management without liability to account. It also provided that the husband and wife should join in all sales, transfers or conveyances of the property of the wife, and that the real estate of the wife should only be conveyed by the joint deed of the husband and wife, according to the laws of Florida regulating conveyances of real property. The question whether the property of the wife, of which she was the owner at the time of her marriage, or acquired subsequently under the constitution and law, and which she owned and still owns, is subject in equity to be charged for her promissory, note has not been presented by counsel. An interesting^ question in connection with this subject is, what effect the restriction as to the transfer of the property of the wife, its management, and tire right to the rents and profits thereof in the husband, has upon the general equitable doctrine applicable strictly to her equitable separate estate, in its application to her statutory separate property. Another interesting question is, whether the constitution repeals any part of the statute, and if so, the -extent of the repeal and its effect upon the power of the wife to charge her “ statutory separate property.” The position taken by counsel in this case, if we understand them, is, that the wife having been given power to acquire property by purchase, carries with it a corresponding liability on her part for the purchase money ; and that her contract (in this instance her promise to pay)-is binding upon her. The constitution and statute do not enable the wife to bind her person, either at law or in equity, by contract, or subject her to be sued at law. 18 New York, 265; 37 N. Y., 35; 11 Casey, 385 ; 12 Harris, 80 ; 16 Ohio, 480 ; 39 Barb., 194; 46 Mo., 532; 23 Ala., 639 ; 22 Barb., 371; 9 Kan., 80 ; 8 C. E. Green, 526; 31 Ind., 233 ; 35 Ind., 353; [96]*9626 Texas, 685 ; 1 Green, 97-105; 6 ibid., 269-282; 13 Wis., 125 ; 15 Wis., 365-380. • The power given to the wife in most of these States, the decisions of whose Courts are ■cited, is beyond that conferred in this State. The statute of Maine, like that of Florida, gives the wife power to acquire real estate by purchase, and we cite with approbation the language of its courts upon this particular subject:
“ It is contended that inasmuch as the statute authorizes married women to become seized and possessed of real estate by purchase, it must by necessary implication authorize such women to enter into contracts -of bargain and sale, and must also carry with it all the lights usually exercised by those making such contracts, including the right to make and execute promissory-notes in payment of estate thus purchased. Such a construction would manifestly extend these statutory provisions much beyond the limits contemplated by the Legislature, and would overturn well-established rules ■ of law defining the rights of married women. Purchase, in its most enlarged and technical sense, signifies the lawful . acquisition of real estate by any means whatever, except by descent. There are six ways of acquiring title by purchase: 1, by deed; 2, by devise; 3, by execution ; i, by prescription ; 5, by possession or occupancy; G, by escheat. It therefore by no means follows that because the statute authorizes a married woman to hold real estate by purchase, that she must be authorized to pay the consideration by her promissory notes. The intention of the Legislature appears to have been to annul that rule of the common law by which the husband by marriage became the owner of the personal property of the wife, and entitled to receive the income of her real estate, and to protect her property by declaring it to be exempt from auy liability for the debts and ■ contracts of the husband. There does not appear to have been any language used in the act with a design to remove ■.the disabilities imposed by the common law upon a feme go[97]*97vert, and to enable her, contrary to its rules, to make sales and purchases of property. The notes referred to were, therefore, given by a person having no power to bind herself by such contracts, and are consequently void.” 34 Maine, 572; 5 Wis., 245; 9 ib., 524; 9 Foster, 77; 15 N. Y., 575.
What is here said as to' the purpose of the Legislature in the matter of the income of the real estate of the wife is not, as a matter of course, applicable to our statute, as in this re • spect our Legislature has expressed a different intention. What is said as to the power of a married woman to act as a feme sole in the matter of binding herself at law for her promissory note, is, however, correct beyond question.
The conclusion we reach, upon principle and authority, is that the wife’s promissory note is not effective to bind her person either at law or in equity, and that neither the Constitution nor the statute give her to this extent the power of a feme sole. Whether her “ separate property,” under the Constitution and statute, or what is called by the books her “ separate statutory property,” can be charged with the amobnt of such note when given for a purchase of property to be her separate statutory property, is a question of too much importance to be determined, except after thorough argument, and in a case where the pleadings properly present that question. The allegation that the note was given for property purchased and held as separate estate, do’es not set up the present existence of a separate estate. In this case the existence of a “ separate estate,” or a “ separate statutory property,” is not averred. The complaint fails to make a case where a judgment can be rendered against either, as neither is alleged to exist. It will be seen, by consulting the cases (cited in note d to section 112, New York Code by Voorhees, page 187, and Wait’s Code, 217,) upon the subject of the sufficiency of a complaint in a case of this character in New York, that this view is fully sustained by them. Indeed, they go much further than there is any [98]*98necessity for us to go in disposing of this case. These requisites, as to the sufficiency of the complaint in such a ease, are not obviated by the provisions of the Code regulating the practice as to the manner of entering judgments against fames covert. The same provision is in.the blew York Code. This section of the Code (220) simply provides that where a judgment can properly be entered against a married woman, that as to the costs and damages recovered, the manner of entering the same in the judgment shall be the same as in other cases. It then provides that this judgment so entered shall be levied and collected of her separate estate. This section itself prohibits a general judgment at law against the wife, and restricts its operation to this property. As to the precise manner in which such judgments are satisfied we do not think it proper to state, as this question is not presented by this ease. The judgment herein is ■final, sustaining the demurrer and'dismissing the complaint. -Generally the proper order to be made herein, under the ■circumstances, would be to sustain the judgment without prejudice to the parties filing a bill in equity under the new practice. As, however, there would arise some questions as to the limitation of the action, the proper order, we think, is to affirm the judgment in so far as it sustains the demurrer, and to reverse it in so far as it directs the complaint to be dismissed, and to remand the case, with directions to permit the plaintiffs to amend upon payment of all costs in the Circuit and Supreme Courts, including the cost of such motion.
The judgment is reversed in so far as it directs the complaint to be dismissed, and the case will be remanded with directions to permit such amendments as are proper upon the payment of all costs, and there will be judgment in this court against appellants for all costs by respondents expended in this behalf.