Crocker, J.
delivered the opinion of the Court—Norton, J. concurring—Cope, C. J. dissenting.
This is an action to recover, from the separate estate of a married woman, debts contracted by her, both before and since her marriage. The husband was made a party with the wife, but he was defaulted. The wife appeared and demurred to the complaint, on [563]*563the ground that the same did not state facts sufficient to constitute a cause of action, and for uncertainty. The Court sustained the demurrer, and rendered judgment against the plaintiffs, from which they appeal.
The complaint avers that Mrs. hiewton purchased goods of the plaintiffs and their assignors, at various times from March 28th, 1858, to March 13th, 1861, for the support of her family and for the benefit and advantage of her separate estate, forming a running account during that period. That on the ninth day of January, 1859, she intermarried with her present husband, but they lived together only a few days when they separated, and he soon left the country; that these purchases were made with the special promise and agreement on her part that she would pay for the same out of her separate estate, and that they relied upon these promises and upon the credit of her separate estate in selling the goods; that at the time of and after her marriage she requested them to keep her accounts the same as they had been kept before, without change of name or responsibility, and promised to pay them therefor out of her separate estate, which is described in the complaint. The complaint prays for a judgment for the amount due, and that the separate property of the wife may be applied to the payment of the demands sued for, and that for that purpose a receiver might be appointed to take charge and dispose of the separate estate.
At common law, the effect of a marriage was to deprive the wife of all separate legal existence, her husband and herself being deemed at law but one person. One result of this principle was, that at law she was incapable of binding herself by a contract. But the hardship of the rule was found so great that exceptions were made to it even at.law. Thus, if the husband became civilitur mortuus, or even transported for a term of years, or had been abroad and unheard of for seven years, or even had left the State without the intention of returning, it was held that she could contract in her own name and was liable to be sued alone thereon. (1 Chitty’s PI. 28, 57, and notes.) Still, with aH the modifications of the rule, the Common Law Courts continued to maintain it to a most rigorous extent.
But Courts of Equity have laid down rules upon this question [564]*564more in accordance with the spirit of modern civilization and the principles of justice. In doing so, they have followed, to a great extent, the more liberal doctrines of the civil law. In determining the question raised in this case, we must look to the rules laid down by Courts of Equity as our guide. They, for many purposes, treat . the husband and wife as distinct persons, even capable of contracting with and suing each other, and of having separate estates, debts, and liabilities. The wife is held capable of taking, holding, and disposing of real and personal property to her own separate and exclusive use. Although her property is often, by the instruments conveying it, vested in trustees to manage for her use, yet this is not essential, and Courts of Equity will always protect her interest in property against the marital rights and claims of the husband, even though there be no trustee. And, if necessary, the husband will be held to be her trustee, and her rights enforced against him as though he were a stranger. And it can make no difference how her separate estate was derived, whether before or after marriage. (2 Story’s Eq. Secs. 1368, 1378, 1380.) To a very great extent, equity considers a married woman, so far as relates to her separate property, the* same as though she was not married. (2 Story’s Eq. Sec. 1397.)
In accordance with these principles, her separate estate will, in equity, be held liable for ah the debts, charges, incumbrances, and other engagements which she expressly or by implication charges ■ thereon. Her agreement to that effect is not considered as an obligatory contract, but rather as an apportionment out of her separate estate. (2 Story’s Eq. Sec. 1399.) Her direct expression of an intention to charge her separate estate with the debt is deemed sufficient to create such a charge; and the mere fact that the debt has been contracted by her during the coverture, for herself or even for her husband, or for the joint benefit of both, will generally be held as prima facie evidence sufficient to charge her separate estate, without any proof of a positive agreement so to do. The simple point to ascertain is, whether it was her intention to make her separate estate liable for the debt; and that intention may be ascertained either from her direct agreement to that effect, or from the circumstances of the case, by which it may be fairly inferred [565]*565that such was her .intention. (2 Story’s Eq. Sec. 1400; Peacock v. Monk, 2 Ves. Sr. 190; Huline v. Tenant, 1 Brown, 17; Owen v. Dickenson, 1 Craig & Phillips, 48 ; Murray v. Barlee, 3 Mylne & Kune, 208, 223; Jaques v. Methodist Episcopal Church, 17 J. R. 577 ; Gardner v. Gardner, 22 Wend. 526.)
In the case of Murray y. Barlee, the Chancellor says: “ In all these cases I take the foundation of the doctrine to be this: the wife has a separate estate subject to her own control, and exempt from all other interference or authority. If she cannot affect it no one can, and the very object of the settlement which vests it in her exclusively is to enable her to deal with it as if she were discovert. The power to affect it being unquestionable, the only doubt that can arise is whether or not she has validly incumbered it. At first, the Court seems to have supposed that nothing could touch it but some real charge, as a mortgage or an instrument amounting to an execution of a power, where that view was supported by the nature of the settlement. But afterward her intention was more regarded, and the Court only required to be satisfied that she intended to deal with her separate property. When she appeared to have done so, the Court held her to have charged it, and made the trustees answer the demand thus created against it.” The Chancellor, Lord Brougham, then proceeds to examine the question, whether this intention must be expressed in writing, saying: “ If, in respect to her separate estate, the wife is, in equity, taken as a femme sole, and can charge it by instruments absolutely void at law, can there be any reason for holding that her liability, or more properly, her power of affecting the separate estate, shall only be exercised by a written instrument ? Are we entitled to invent a rule, to add a new chapter to the Statute of Frauds, and to require writing when that act requires none ? Is there any equity reaching written dealings with the property which extends not also to dealings in other ways, as by sale and delivery of goods ? Shall necessary supplies for her maintenance not touch the estate, and yet money furnished to squander away at play be a charge on it, if fortified by a scrap of writing ? No such distinction can be taken upon any conceivar ble principle.”
But it must be borne in mind that while a Court of Equity is [566]
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Crocker, J.
delivered the opinion of the Court—Norton, J. concurring—Cope, C. J. dissenting.
This is an action to recover, from the separate estate of a married woman, debts contracted by her, both before and since her marriage. The husband was made a party with the wife, but he was defaulted. The wife appeared and demurred to the complaint, on [563]*563the ground that the same did not state facts sufficient to constitute a cause of action, and for uncertainty. The Court sustained the demurrer, and rendered judgment against the plaintiffs, from which they appeal.
The complaint avers that Mrs. hiewton purchased goods of the plaintiffs and their assignors, at various times from March 28th, 1858, to March 13th, 1861, for the support of her family and for the benefit and advantage of her separate estate, forming a running account during that period. That on the ninth day of January, 1859, she intermarried with her present husband, but they lived together only a few days when they separated, and he soon left the country; that these purchases were made with the special promise and agreement on her part that she would pay for the same out of her separate estate, and that they relied upon these promises and upon the credit of her separate estate in selling the goods; that at the time of and after her marriage she requested them to keep her accounts the same as they had been kept before, without change of name or responsibility, and promised to pay them therefor out of her separate estate, which is described in the complaint. The complaint prays for a judgment for the amount due, and that the separate property of the wife may be applied to the payment of the demands sued for, and that for that purpose a receiver might be appointed to take charge and dispose of the separate estate.
At common law, the effect of a marriage was to deprive the wife of all separate legal existence, her husband and herself being deemed at law but one person. One result of this principle was, that at law she was incapable of binding herself by a contract. But the hardship of the rule was found so great that exceptions were made to it even at.law. Thus, if the husband became civilitur mortuus, or even transported for a term of years, or had been abroad and unheard of for seven years, or even had left the State without the intention of returning, it was held that she could contract in her own name and was liable to be sued alone thereon. (1 Chitty’s PI. 28, 57, and notes.) Still, with aH the modifications of the rule, the Common Law Courts continued to maintain it to a most rigorous extent.
But Courts of Equity have laid down rules upon this question [564]*564more in accordance with the spirit of modern civilization and the principles of justice. In doing so, they have followed, to a great extent, the more liberal doctrines of the civil law. In determining the question raised in this case, we must look to the rules laid down by Courts of Equity as our guide. They, for many purposes, treat . the husband and wife as distinct persons, even capable of contracting with and suing each other, and of having separate estates, debts, and liabilities. The wife is held capable of taking, holding, and disposing of real and personal property to her own separate and exclusive use. Although her property is often, by the instruments conveying it, vested in trustees to manage for her use, yet this is not essential, and Courts of Equity will always protect her interest in property against the marital rights and claims of the husband, even though there be no trustee. And, if necessary, the husband will be held to be her trustee, and her rights enforced against him as though he were a stranger. And it can make no difference how her separate estate was derived, whether before or after marriage. (2 Story’s Eq. Secs. 1368, 1378, 1380.) To a very great extent, equity considers a married woman, so far as relates to her separate property, the* same as though she was not married. (2 Story’s Eq. Sec. 1397.)
In accordance with these principles, her separate estate will, in equity, be held liable for ah the debts, charges, incumbrances, and other engagements which she expressly or by implication charges ■ thereon. Her agreement to that effect is not considered as an obligatory contract, but rather as an apportionment out of her separate estate. (2 Story’s Eq. Sec. 1399.) Her direct expression of an intention to charge her separate estate with the debt is deemed sufficient to create such a charge; and the mere fact that the debt has been contracted by her during the coverture, for herself or even for her husband, or for the joint benefit of both, will generally be held as prima facie evidence sufficient to charge her separate estate, without any proof of a positive agreement so to do. The simple point to ascertain is, whether it was her intention to make her separate estate liable for the debt; and that intention may be ascertained either from her direct agreement to that effect, or from the circumstances of the case, by which it may be fairly inferred [565]*565that such was her .intention. (2 Story’s Eq. Sec. 1400; Peacock v. Monk, 2 Ves. Sr. 190; Huline v. Tenant, 1 Brown, 17; Owen v. Dickenson, 1 Craig & Phillips, 48 ; Murray v. Barlee, 3 Mylne & Kune, 208, 223; Jaques v. Methodist Episcopal Church, 17 J. R. 577 ; Gardner v. Gardner, 22 Wend. 526.)
In the case of Murray y. Barlee, the Chancellor says: “ In all these cases I take the foundation of the doctrine to be this: the wife has a separate estate subject to her own control, and exempt from all other interference or authority. If she cannot affect it no one can, and the very object of the settlement which vests it in her exclusively is to enable her to deal with it as if she were discovert. The power to affect it being unquestionable, the only doubt that can arise is whether or not she has validly incumbered it. At first, the Court seems to have supposed that nothing could touch it but some real charge, as a mortgage or an instrument amounting to an execution of a power, where that view was supported by the nature of the settlement. But afterward her intention was more regarded, and the Court only required to be satisfied that she intended to deal with her separate property. When she appeared to have done so, the Court held her to have charged it, and made the trustees answer the demand thus created against it.” The Chancellor, Lord Brougham, then proceeds to examine the question, whether this intention must be expressed in writing, saying: “ If, in respect to her separate estate, the wife is, in equity, taken as a femme sole, and can charge it by instruments absolutely void at law, can there be any reason for holding that her liability, or more properly, her power of affecting the separate estate, shall only be exercised by a written instrument ? Are we entitled to invent a rule, to add a new chapter to the Statute of Frauds, and to require writing when that act requires none ? Is there any equity reaching written dealings with the property which extends not also to dealings in other ways, as by sale and delivery of goods ? Shall necessary supplies for her maintenance not touch the estate, and yet money furnished to squander away at play be a charge on it, if fortified by a scrap of writing ? No such distinction can be taken upon any conceivar ble principle.”
But it must be borne in mind that while a Court of Equity is [566]*566thus liberal in sustaining the power of a married woman over her separate estate, yet they are equally careful in guarding her against imposition, and therefore all dealings with her affecting her separate estate must be free from fraud, reasonable in their terms, and it must appear that no unfair advantage has been taken of her. (Jaques v. M. E. Church, 17 Johns. 579; Evans v. Llewellyn, 2 Brown’s C. C. 150.)
Applying these principles to the present case, we find that the complaint avers that she purchased the goods for the support of herself and family, and for 'the benefit and advantage of her separate estate, and that she directly and expressly agreed that she would pay for the same out of her separate estate, and that the amount should be a charge on her separate estate. These facts bring the case clearly within the established rules of equity upon this subject, and her separate estate is liable in equity for the payment of the plaintiff’s demand.
The mere fact that this agreement is not in writing, can make no difference, as there is no statute or rule of law which requires that an agreement of this character, which is enforceable only in a Court of Equity, should be in writing.
The respondent refers to the cases of Selover v. The American Russian Com. Co. (17 Cal. 266), Barrett v. Tewksbury (9 Id. 13), and other decisions of this Court, founded upon the statute relating to conveyances of property by a married woman. Those cases relate to the power of a married woman to execute instruments conveying or incumbering her separate property, and the mode in which such conveyance or incumbrance must be executed and acknowledged to be binding upon her, and they therefore differ entirely from the case now before us, in which no such question is directly involved. The statutes upon this subject, and upon which those decisions were founded, do not in any way abrogate or impair the powers of a Court of Equity, over the rights and property of married women, or the long-established rules of those Courts upon this subject, upon which this case depends. While these statutes confer upon married women a power to dispose of their property, which they did not before possess, yet there is no expression of any legislative intention to thereby divest Courts of Equity of their long [567]*567established powers and jurisdiction. To effect such an object would require a clear expression of legislative will.
These statutes are a substitute for the ancient common law proceeding by fine and recovery, which was the only mode by which, at common law, a married woman could convey her real estate. (2 Kent’s Com. 139.) Those proceedings were tedious and expensive, and the statutory mode is simple and equally effectual. The jurisdiction of Courts of Equity over the property of married women existed when a fine and recovery were the only modes of conveying their real property at common law; and they equally exist, notwithstanding this change in the mode of conveyance. In a Court of Equity the separate property of the wife can be disposed of under a judgment of a competent Court, for the payment of her just debts; and under the proceedings her rights and interests will be fully and carefully guarded and protected better than by the ancient common law mode, or that prescribed by the statute. By the statute, the husband is constituted her protector, by requiring him to join with her in executing the conveyance. Under the rules of equity, the Court acts as the guardian of her rights. The statute was designed to enable her to deal directly with her property, without being compelled to resort to a Court, either of common law or equity; and it cannot be held, by any reasonable implication, to have deprived Courts of Equity of their jurisdiction over cases where the statute might be ineffectual, or where they had long exercised authority.
The present case is an example of the necessity of maintaining the powers of the Court over this subject intact. The husband of the defendant, it seems, left the State or deserted her soon after their marriage; and thus she is powerless, even if willing, to execute a conveyance of or incumbrance upon her property in the mode required by the statute. With abundance of properly, she cannot directly dispose of it, even to purchase the necessaries of life; and unless a Court of Equity has the power to afford relief, she may suffer from want in the midst of abundance. The cause of action in this case, is founded in part upon supplies and necessaries furnished her before her marriage, and the rest since. For those ■ furnished before marriage, her separate property is clearly liable, [568]*568under Sec. 13 of the statute defining the rights of husband and wife, which is as follows: “ The separate property of the husband shall not be liable for the debts of the wife contracted before the marriage, but the separate property of the wife shall be and continue liable for all such debts.” This liability of the separate property can only be enforced in a^suit in equity, where all interested can be made parties, the separate property ascertained, and a decree rendered directly against the property for the payment of the debt. The right of action in this case, so far as relates to that portion of the demand which accrued before the marriage, against the separate property of the wife, is clear and undoubted under the statute.
As to that part of the demand which accrued since the marriage, we have examined the rules of equity which relate to such liabilities, and it is the duty of the Court, and it has the power, to adjudicate the matter in accordance with those principles; and if the claim of the plaintiff is found to be of such a character as to entitle him to a remedy for relief against the separate property of the wife, such relief should be granted him. The fact that the wife now, after having obtained the necessaries and supplies, and appropriated them to her own use, under a promise that her separate property should be held liable therefor, refused to aid in making that property liable, can make no difference. Fraud on the part of a married woman is as odious as when perpetrated by any other person. If the plaintiff and Ms assignors acted M good faith, relying on her promise in furnishing the goods, they are entitled to relief against her property, although they are not entitled to a personal judgment against her. It follows that the Court erred in sustaining the demurrer to the complaint.
The judgment is reversed, and the defendant is directed to answer the complaint within ten days after service of notice of the filing of the rmAttitm in the Court below.