Kidd v. Conway

65 Barb. 158, 1873 N.Y. App. Div. LEXIS 41

• Court: New York Supreme Court
• Decided: January 7, 1873
• Status: Published

Opinion

By the Court, Mtjulin, P. J.

The position of the defendant’ s counsel is, that Mrs. C., being a married woman, is not liable on the bond, it not being alleged that it was given for, or on account of, her separate estate, nor that she had any separate estate, and the bond being a nullity, there was no consideration for the mortgage, and the court will not enforce it.

The bond is of no validity against Mrs. C. She is not liable on any executory contract, unless made in connection with her. separate business, or separate estate. It is not alleged that she carries on any separate business, nor that it was given for, or on account of, her separate estate.

The statement in the mortgage, that the mortgaged premises are occupied by her as a dwelling-house, and that the mortgage was intended tó cover all the lands and buildings in connection therewith, which is contained in the complaint, is a distinct allegation or admission that the premises were her separate estate.

It is true that this is not alleged in a way to require the defendant to answer it; but it cannot be said that the fact that the mortgage is a lien on her separate property is not in the complaint; and in passing on the questions raised by the demurrer we may assume the fact to be as thus stated.

[Fourth Department, General Term, at Syracuse, January 7, 1873.

Mullin, Talcoit and M. D. Smith, Justices.]

However this may be, when a married woman gives a mortgage on real estate, the court must assume that it is her separate property, until the contrary appears; and I think she would be estopped from denying that it was such. Although the bond is void, it does not follow that the mortgage also is void. It recites a consideration, and it is under seal. There is therefore a sufficient consideration to support it. In The Corn Exchange Ins. Co. v. Babcock, (42 N. Y. 613,) the consideration for the charge of Mrs. Babcock’s separate property was recited as “for value received.”

Her undertaking was that of an endorser on the husband’ s note. That undertaking was a nullity; she was not bound by it; and yet the charge contained in the endorsement on the note was sustained.

The cases are, in principié, substantially alike. In each the contract of the woman was void. In each there is an express charge created on her separate estate; in the one case by the writing on the note, in the other by the mortgage. H the charge created by the note was valid, surely that created by the mortgage was equally valid.

In neither case was there an obligation binding upon the woman.

The order of the Special Term should be affirmed. The defendant to have leave to answer within twenty days on payment of the costs of the demurrer and of the appeal.