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To charge the separate property of a married woman for
the payment of her debts.
SUPREME COURT-COUNTY OF CHENANGO.
agt. Eliza Ann Dederer' and Nicholas A.
The complaint of the abovenamed plaintiff respectfully shows to this court, that the defendants, Eliza Ann Dederer, and Nicholas A. Dederer, her husband, at Greene, in the said county of Chenango, made their promissory note or agreement, with and to the plaintiff, of which the following is a copy :
On the first day of May next, we, or either of us, promise to pay Ransom Yale, or bearer, nine hundred and ninety-eight dollars, with interest, for value received.
N. A DEDERER,
ELIZA ANN DEDERER. Greene, Dec. 26th, 1853.
That the consideration of the said note or agreement was for two promissory notes made by the defendant Eliza and said Nicholas A. Dederer to the plaintiff, and which notes were surrendered on the execution of the aforesaid note or agreement, the consideration of which said two promissory
A married woman, either suing alone, as to her separate property, or joined with her husband as plaintiff or defendant, may sue or be sued without next friend. (Code, $ 114, amended by act of 1857, vol. 2, 552.) notes, so surrendered, was for cows sold in the spring of 1852 and of 1853, by plaintiff, to stock the farm of the makers of the said note,' and that the said defendant Eliza, at the time of making the first two, as well as the time of making the last of said notes, had, and still has, an estate separate from her husband, consisting of farms of land in said county of Chenango, and of personal estate, and that a large number of said cows were purchased for the use and benefit of the farm of the defendant, said Eliza, and were used for the benefit of the defendant on her said farm; and that said separate estate of said Eliza consists of a farm of about 200 acres, in German, called the Gould farm, and of a farm of about 215 acres, in Smithville, called the Warner farm, and also of a lot of land in Greene and Smithville, containing about 90 acres of land, called the McIntosh lot, and of personal property. That all of the aforesaid notes were made during the coverture of the defendant, said Eliza, with the said Nicholas A. Dederer.
And plaintiff avers that the said defendant Eliza, by the execution of the note of which the above is a copy, as well as by the making of the notes aforesaid, intended to charge and did charge her separate estate with the payment of the notes aforesaid, and that by the surrender of the former notes by plaintiff, and the making the said note of which the above is a copy, the defendant, said Eliza, did
1 In an action against husband and wife, to charge the separate estate of the wife, upon a note or bond, signed by the husband and wife, the legal inference is, that it was the debt of the husband. The legal conclusion is, that it could not be the debt of the wife, she being incompetent to contract it. In order to charge the separate estate of the wife, there must be something to show that it was given for her benefit; that is, for the use of her separate estate. (Goodall 0. McAdam and wife, 14 How., 385; and see cases therein cited, and precedent of complaint.)
charge her separate estate with the payment of the note of which the above is a copy. And the plaintiff further says, that although the said note became due and payable before the commencement of this action, yet the defendant, said Eliza, and the said Nicholas, or either of them, have not paid the same, and that the said plaintiff is now the lawful owner and holder of the said note, and there is justly due to him thereon the sum of $998, together with interest thereon from the 26th day of December, in the year 1853. That the defendant, said Eliza, refuses to pay the amount aforesaid to the said plaintiff, or to secure the same by mortgage, or otherwise, on her separate estate.
The plaintiff therefore demands judgment that the separate estate of the said defendant Eliza be charged with the payment of the amount last aforesaid to the said plaintiffs, and that the payment of the amount last aforesaid be enforced as a lien upon the said separate estate, and that the personal estate of the said defendant Eliza, and the rents and profits of the real estate, be applied, by the order of this court, to the payment of the amount last aforesaid, together with the costs of this action, or that such direction as to the said court may seem just be made as to the application of the defendant's, said Eliza's, separate estate, in satisfaction of the amount due the plaintiff as aforesaid.
HENRY R. MYGATT,
Attorney for Plaintiff.
This appears to be the only mode of reaching the separate property of a married woman, and the foregoing is the proper form of complaint in such cases. (See Cobine v. St. John, 12 How., Coon v. Brook, 21 Barb., 547.)
In the foregoing case the plaintiff obtained judgment at special term, which was affirmed by the General Term on appeal. The opinion of the General Term will be found in the report of the case, Yale o. Dederer (21 Barb., 286).
( No. 67.)
To enforce a claim against husband, and obtain satisfaction
out of securities held by wife, arising from a sale of her real estate on which the husband had expended labor and money.
SUPREME COURT-DUTCHESS COUNTY.
agt. Albro A. Sabine and Mary Jane Sabine his
The plaintiff complains of the defendants, and alleges :
That, on the 11th day of July, 1856, the plaintiff recovered a judgment in the Supreme Court of the State of New-York, against the defendant, Albro A. Sabine, for the sum of $460.27, which judgment was on said day duly docketed in the office of the clerk of the county of Columbia, which said judgment still remains unpaid and unsatisfied.
That afterwards, and before the commencement of this action, the said judgment was duly docketed in the office of the clerk of the county of Dutchess, and an execution was duly issued to the sheriff of said county of Dutchess, which said execution was, before the bringing of this action, returned by said sheriff to the clerk of the county of Columbia, wholly unsatisfied.
That nothing has ever been paid or collected upon said judgment, and the whole amount remains due and unpaid.
That the said defendant, Albro A. Sabine, hath not any property, or interest in property, not exempt from levy and sale on execution, out of which said judgment can be satisfied, except what is hereinafter alleged to belong to him.
That the defendant, Mary Jane Sabine, is the wife of said defendant, Albro A., and was in the month of April, 1855, and said defendants ever since that time lived together as husband and wife.
That, on or about the 2d of April, 1855, the defendant, Mary Jane, became vested with title, by purchase from Homer Winchell, to certain real estate, situate in the town of North East, in the county of Dutchess, in the State of New-York, bounded and described as follows : [ Describe ing the premises ], upon which premises there was, at the time of the said purchase and grant, certain improvements.
That, subsequent to said purchase and grant, the said defendant, Albro A., with the knowledge and consent of defendant, Mary Jane, expended large sums of money of his own, and applied a large amount of labor, by himself and his servants, and used and added a large amount of material upon said improvement. That such improvements consisted, in part, of an addition to said house, which addition was of the dimensions of twenty by twenty-four feet, and also other improvements in fences, and by the planting of trees and shrubbery, and by fertilizing the soil and other improvements, amounting in value to the sum of $800, by which the said property was increased in value to that sum.
That subsequently, and on or about the 1st day of April, 1856, the said defendant, Mary Jane, sold and conveyed the said premises with all of said improvements to one Leonard A. Chase, and received therefor, in good securities, from said Chase, the sum of $1,400. That the said Mary Jane paid for said property only the sum of $800, and that the increased price received by her for said