By the Court.
The judgment sought to be set aside is not, on its face, in any respect irregular, nor is it claimed to be so. There is nothing in the papers on which the judgment is entered to show that Charlotte A. Smith was a married woman, nor does the fact that she was so at the time of the confession of the judgment distinctly appear by the moving papers.
She now moves to set aside this judgment on two grounds. 1. Upon the ground that, at the time of entering the judgment and making confession thereof, she was a married woman and the wife of her co-defendant Edwin Smith. 2. Upon the ground that the consideration of the judgment was for the benefit of the husband and not of the wife.
1. I do nottliink it inevitably follows that a judgment should be set aside on motion of the female defendant, because she was a married woman at the time of the entry thereof.
(1.) Perhaps this judgment was too broad in being entered as a personal judgment against the wife, and thereby making it not only a lien on all her real estate, but authorizing an execution against her personal property. (Yale a. Dederer, 22 N. Y., 450; Dickerman a. Abrahams, 21 Barb., 551; Owen a. Cawley, 36 Ib., 52; Philips a. Hagadorn, 12 How. Pr., 17; Britten a. Wilder, 6 Hill, 242; Cobine a. St. John, 12 How. Pr., 333; Goodale a. McAdam, 14 Ib., 385; Wotkyns a. Abrahams, Ib., 191; Palen a. Lent, 5 Bosw., 713.) But the judgment is not objected to specially on that ground, and the relief which the defendant seeks is much more radical and comprehensive, te wit, the entire overthrow of the judgment.
(2.) So, also, it may be that the judgment is defective in not being declared to be a special and specific lien upon real property therein particularly described, which is the ordinary mode of declaring and enforcing a lien or charge upon the separate estate of a married woman. (Dickerman a. Abrahams, 21 Barb., 551; Colvin a. Currier, 22 Ib., 371; Simmons a. McElwain, 26 Ib., 419; Owen a. Cawley, 36 Ib., 52; S. C., 13 Abbotts’ Pr., 13; Yale a. Dederer, 21 Barb., 286; 18 N. Y., 265; 31 Barb., 525; 22 N. Y., 450.) But I do not think such a defect is necessarily destructive of the judgment, or subversive [244]*244of the lien thereby created, if intended, in fact and in good faith, to be a charge upon such property as she then owned or was interested in. The general lien of this judgment would then, in its practical effect, be equivalent to the specific lien created by a detailed description of the property itself, accompanied with such allegations upon the face of the judgment as created a charge upon her separate estate. And if, in truth, the facts existed at the time of entering the judgment, which would enable the plaintiff to assert and obtain a specific lien coextensive with the general lien created by a general judgment, I do not think equity requires that we should destroy the lien now existing, to enable a party to defeat a lien which at the time she intended to create, and without which she would never have procured the money which was the consideration of the judgment, Eor it is by no means impossible, that, as between the parties (no rights of third persons intervening), the judgment could be so amended as to effectuate the real intentions of the parties, and declare such specific lien, as the parties really designed to create an order to secure the lender of the money, or the indorser of the paper, for the advances or indorsement he made upon the faith of such a lien.
(3.) I am, therefore, of opinion that we are not imperatively required, under every possible state of facts, to set aside a general judgment against a married woman upon her mere motion for such purpose. We must, therefore, address ourselves to the facts of this case, and see if equity requires our interference in her. behalf. And this brings us to the consideration of the second point above stated.
’ 2. How then, and under what circumstances, was this judgment entered ? who had the benefit of the loan, or paper for which the judgment was intended as a security? and was there, or not, an intent to charge the separate estate of the wife.
(1.) The wife insists that the proceeds of the paper indorsed by the plaintiff were intended for the benefit of the husband, and that he actually had the benefit thereof; while the plaintiff insists that they were intended for the benefit of the wife, and that she actually had the benefit thereof; that they went into her business, a mercantile business, carried on by her in her name, for her benefit, for a series of years, and the fruits of which she enjoyed. On this point I am free to say that the clear pre[245]*245ponderarme of evidence is in favor of the plaintiff; and that, so far as the defendant’s motion is founded upon the theory that the consideration of the judgment was for the benefit of the husband, it must fail as being unfounded in fact.
(2.) The plaintiff further insists that there was an intent and agreement between the parties to create a lien upon her estate; that it was known that she had property and the husband had none; that the express object of taking the judgment was to obtain a lien upon the property of the wife, ap.d thereby secure the plaintiff against the liability he incurred by his indorsement of the defendant’s paper. On this point, also, I think the decided preponderance of the evidence is in favor of the plaintiff.
(3.) It thus appears that the defendant’s motion is without any equity to support it; that she subscribed the note in connection with her husband, procured its indorsement by the plaintiff, on the faith of such indorsement obtained its discount, received the proceeds thereof, used them in her own business, and appropriated them to her own use; confessed a judgment to the plaintiff to secure him, regular upon its face, and not declaring the fact that she was a married woman; did so for the express purpose of protecting him from liability, and giving him a lien upon her property; that he subsequently was obliged to pay, and did pay, the note himself; that if his present lien is destroyed, he is without any security whatever; and that she has waited for more than four years since the security was taken without any attempt to invalidate the judgment; and now seeks to set aside the same upon allegations of an equity, which, independent of the single fact that she was at the time a married woman, turn out to be without foundation in fact. There is nothing in all this which commends itself to the equity of the court, and nothing which should induce the court to interfere in her behalf, unless required to do so by some unbending rule of law.
3. The question remains what disposition should be made of the case.
(1.) I think the order of the special term, denying the motion to set aside the judgment, should be affirmed, with $10 costs.
(2.) As the question of fact is the subject of conflicting evidence, and the defendant may desire to test it in a more formal way, and, as the plaintiff may also think it expedient to attempt [246]
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By the Court.
The judgment sought to be set aside is not, on its face, in any respect irregular, nor is it claimed to be so. There is nothing in the papers on which the judgment is entered to show that Charlotte A. Smith was a married woman, nor does the fact that she was so at the time of the confession of the judgment distinctly appear by the moving papers.
She now moves to set aside this judgment on two grounds. 1. Upon the ground that, at the time of entering the judgment and making confession thereof, she was a married woman and the wife of her co-defendant Edwin Smith. 2. Upon the ground that the consideration of the judgment was for the benefit of the husband and not of the wife.
1. I do nottliink it inevitably follows that a judgment should be set aside on motion of the female defendant, because she was a married woman at the time of the entry thereof.
(1.) Perhaps this judgment was too broad in being entered as a personal judgment against the wife, and thereby making it not only a lien on all her real estate, but authorizing an execution against her personal property. (Yale a. Dederer, 22 N. Y., 450; Dickerman a. Abrahams, 21 Barb., 551; Owen a. Cawley, 36 Ib., 52; Philips a. Hagadorn, 12 How. Pr., 17; Britten a. Wilder, 6 Hill, 242; Cobine a. St. John, 12 How. Pr., 333; Goodale a. McAdam, 14 Ib., 385; Wotkyns a. Abrahams, Ib., 191; Palen a. Lent, 5 Bosw., 713.) But the judgment is not objected to specially on that ground, and the relief which the defendant seeks is much more radical and comprehensive, te wit, the entire overthrow of the judgment.
(2.) So, also, it may be that the judgment is defective in not being declared to be a special and specific lien upon real property therein particularly described, which is the ordinary mode of declaring and enforcing a lien or charge upon the separate estate of a married woman. (Dickerman a. Abrahams, 21 Barb., 551; Colvin a. Currier, 22 Ib., 371; Simmons a. McElwain, 26 Ib., 419; Owen a. Cawley, 36 Ib., 52; S. C., 13 Abbotts’ Pr., 13; Yale a. Dederer, 21 Barb., 286; 18 N. Y., 265; 31 Barb., 525; 22 N. Y., 450.) But I do not think such a defect is necessarily destructive of the judgment, or subversive [244]*244of the lien thereby created, if intended, in fact and in good faith, to be a charge upon such property as she then owned or was interested in. The general lien of this judgment would then, in its practical effect, be equivalent to the specific lien created by a detailed description of the property itself, accompanied with such allegations upon the face of the judgment as created a charge upon her separate estate. And if, in truth, the facts existed at the time of entering the judgment, which would enable the plaintiff to assert and obtain a specific lien coextensive with the general lien created by a general judgment, I do not think equity requires that we should destroy the lien now existing, to enable a party to defeat a lien which at the time she intended to create, and without which she would never have procured the money which was the consideration of the judgment, Eor it is by no means impossible, that, as between the parties (no rights of third persons intervening), the judgment could be so amended as to effectuate the real intentions of the parties, and declare such specific lien, as the parties really designed to create an order to secure the lender of the money, or the indorser of the paper, for the advances or indorsement he made upon the faith of such a lien.
(3.) I am, therefore, of opinion that we are not imperatively required, under every possible state of facts, to set aside a general judgment against a married woman upon her mere motion for such purpose. We must, therefore, address ourselves to the facts of this case, and see if equity requires our interference in her. behalf. And this brings us to the consideration of the second point above stated.
’ 2. How then, and under what circumstances, was this judgment entered ? who had the benefit of the loan, or paper for which the judgment was intended as a security? and was there, or not, an intent to charge the separate estate of the wife.
(1.) The wife insists that the proceeds of the paper indorsed by the plaintiff were intended for the benefit of the husband, and that he actually had the benefit thereof; while the plaintiff insists that they were intended for the benefit of the wife, and that she actually had the benefit thereof; that they went into her business, a mercantile business, carried on by her in her name, for her benefit, for a series of years, and the fruits of which she enjoyed. On this point I am free to say that the clear pre[245]*245ponderarme of evidence is in favor of the plaintiff; and that, so far as the defendant’s motion is founded upon the theory that the consideration of the judgment was for the benefit of the husband, it must fail as being unfounded in fact.
(2.) The plaintiff further insists that there was an intent and agreement between the parties to create a lien upon her estate; that it was known that she had property and the husband had none; that the express object of taking the judgment was to obtain a lien upon the property of the wife, ap.d thereby secure the plaintiff against the liability he incurred by his indorsement of the defendant’s paper. On this point, also, I think the decided preponderance of the evidence is in favor of the plaintiff.
(3.) It thus appears that the defendant’s motion is without any equity to support it; that she subscribed the note in connection with her husband, procured its indorsement by the plaintiff, on the faith of such indorsement obtained its discount, received the proceeds thereof, used them in her own business, and appropriated them to her own use; confessed a judgment to the plaintiff to secure him, regular upon its face, and not declaring the fact that she was a married woman; did so for the express purpose of protecting him from liability, and giving him a lien upon her property; that he subsequently was obliged to pay, and did pay, the note himself; that if his present lien is destroyed, he is without any security whatever; and that she has waited for more than four years since the security was taken without any attempt to invalidate the judgment; and now seeks to set aside the same upon allegations of an equity, which, independent of the single fact that she was at the time a married woman, turn out to be without foundation in fact. There is nothing in all this which commends itself to the equity of the court, and nothing which should induce the court to interfere in her behalf, unless required to do so by some unbending rule of law.
3. The question remains what disposition should be made of the case.
(1.) I think the order of the special term, denying the motion to set aside the judgment, should be affirmed, with $10 costs.
(2.) As the question of fact is the subject of conflicting evidence, and the defendant may desire to test it in a more formal way, and, as the plaintiff may also think it expedient to attempt [246]*246the amendment of the judgment and the procurement of a specific lien upon the property of the defendant, I think the order of affirmance should be without prejudice to a suit by the defendant to set aside the judgment, and to a suit by the plaintiff to amend the same, or to declare and obtain a specific charge or lien upon the property of the female defendant, or such other relief as this plaintiff or this defendant, in such suits respectively, may be advised to seek—such suit, on either part, to be brought within six months after written notice of the order.
Present, Hoqbboom, Pbokiiam, and Mimes, JJ.