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on the plaintiff to show for what purpose she contracted, and to prove it clearly.

The case stands upon no different footing, in the absence of such proof, than if West had never possessed or asserted any right or claim against any estate in which she was interested. She cannot be held to a knowledge of the facts which induced her husband to procure her signature for an extension of his own debt, upon which she could not in any event be any more than a surety. There was no contract made with her whatever as an inducement to her agreement, and if West had undertaken to prosecute his claim against the estate, whatever other defense she might have interposed against that proceeding, there is no agreement between herself and West that appears in this case which would make a specific defense as an agreement.

The argument was therefore chiefly rested on the other proposition, which is the only one of substantial importance in the case. That proposition rests on the claim that any married woman who joins in a promissory note with her husband for the absolute payment of money, does by that act in all cases create a charge upon such separate property as she may own; and that the charge thus created may be enforced by a legal action, and collected by execution. upon the judgment, as it could formerly be enforced by decree in equity.

By the common law the disability of married women to make agreements personally binding was the same as in equity.

No court could enforce contracts so as to render personal judgment. But where property was held to the separate use of a married woman, the whole separate interest, being entirely of equitable creation, was held subject to such rules of control as equity chose to establish. But property not held to her separate use was subject to the rules of law, and could only be charged or disposed of in a legal manner. The law has never allowed a married woman to make a charge upon or disposal of her legal

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interests by any less formalities than such as other persons are required to use; and generally the rules have been much more strict than those applicable to other persons.

When equity permitted married women to deal with their separate estates, and yet did not allow them to make contracts binding in personam, it enforced their acts as directions to their trustees, or as sales or charges upon their equitable interests; and, inasmuch as the interests which they could thus control were always chattel interests, and not freeholds or estates in land, there was no great anomaly in recognizing almost any distinct act which would otherwise be meaningless, to operate as a charge on such interests. And it seems to have become a settled doctrine in England, and has been held in some of our states, that a note or undertaking for money of any kind, signed by a wife jointly with her husband, although binding no one but the husband as a contract, is a charge by way of security, on her separate estate for the debt.

The doctrine of Hulme v. Tenant, 1 Bro. C. C., 16, to this effect, though often criticised, has usually been followed in England; and the cases have not even required her undertakings to be in writing where the interests were of such a nature as to be bound without. But it was said in that case, and such seems to be the settled doctrine, that no interest in lands beyond the rents and profits could ever be reached in that way. See cases collected in notes to Hulme v. Tenant, 1 Lead. Cas. in Eq., 324, et seq. It seems further to be understood that the charge can only be established from some act clearly indicating an intent to make the debt so operate, and is not enforced as in an implied assumpsit; and where, instead of merely incurring a debt, and so implying a charge to secure it, a wife sold an annuity and failed to transfer it in proper form, it was held her estate was not liable for the consideration money, because she had undertaken to do a specific act which was invalid, and she could not be made liable on the bargain.-Duke of Bolton v. Williams, 2 Ves. Jr., 138. While the doctrines are

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peculiar, and the decisions very much confused, they all agree that there can be no enforcement of any of her contracts in personam, and that nothing can be reached except the equitable interest, and that no remedy is applicable except a bill in equity to reach the parties holding the property to her use.-See Hovenden's Sup. to Ves., Jr., Vol. 2, p. 66-note to Sperling v. Rochfort, 8 Ves., 164.

The whole doctrine (which has been somewhat narrowed and qualified in many American cases,-see American notes to Hulme v. Tenant, ubi sup.) depends on the double assumption that she can make no contract of any kind which will bind her in personam, and that she cannot transfer or charge a legal estate by her sole act or agreement. And the act or agreement of a married woman who at the time had no separate equitable estate, was not of the least validity, so as to reach any subsequently acquired interests, or to bind her at law, should she become a widow.

It was expressly held by this court in De Vries v. Conklin, 22 Mich. R., 255, that a married woman could not be held liable on a joint note given for her husband's debt, on which she was only a surety. And that decision practically decides this case. The same suggestions were made there which were made here, that she could bind her equitable estate by such a signature; and the court, without deciding what might have been the case in equity, if such an estate had existed and been contemplated by the contract, held that a wife's property held by legal title was not the same thing as an equitable separate estate, and that an action at law gave a different remedy. Indeed it is plain that if a woman can bind her property by every note which she signs, and if her note can be sued at law, there is no limit to her right of binding herself by contract.

A court of common law enforces its judgments by execution; and when judgment has been rendered against a married woman, it is collected like any other. The execu

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tion will seize any property which she possesses, and will dispose of it absolutely, and not merely bind the usufruct.

The whole purpose of our present system was to remove the wife's disabilities in regard to property, and put her as to that upon the same footing as if she were unmarried. She contracts on that footing when she contracts at all, and she disposes of her property on the same basis. There is no occasion to extend and give a broader application to rules of equity which could never have had sense or reason except because of the very disabilities which are now removed. In all of her contracts and dispositions of property, and in all suits arising out of them, she is to be treated as a feme sole.-Comp. L. of 1871, §§ 4803, 4805, 4806. And the dealings of an unmarried woman are in the same legal position as those of a man.

No one has ever imagined that a man, by signing a note or a bond, created a lien on his property legal or equitable. Even a judgment creates no lien. Unless the property is expressly pledged or mortgaged, it remains free until levied upon by attachment or execution. And a common-law action is of no avail to enforce a lien of any kind. It leads to nothing but a personal judgment, which can only be satisfied out of such property as is legally subject to seizure, without reference to the date of its acquisition. A contract made when a man has no property will authorize a judgment under which after-acquired property can be taken; and a contract made when a person has personalty or realty will not prevent its alienation.

We think that any attempt by courts to engraft the old rules of equity upon the new system can only lead to confusion and mischief. A married woman would have greater powers and greater liabilities than a single woman, if any such medley should be allowed. There is no obstacle to her binding any of her property expressly. And therefore there is no need of implications, which extend to no other persons, although situated alike.

Those who deal with her on her personal responsibility

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must be prepared to show that she has acted within her legal powers. Those who desire to obtain security on her property must obtain it as they would if she were unmarried, that is, by some instrument describing the property and defining their rights in it, or by some pledge or transfer which is equivalent.

As in this action the wife is sued upon contract, and it can only be maintained upon her personal agreement, the whole question, so far as this branch of the inquiry is concerned, is, as already stated, disposed of by the decision in De Vries v. Conklin.

The judgment should be affirmed, with costs. COOLEY, J., and GRAVES, CH. J., concurred. CHRISTIANCY, J., did not sit in this case.

John C. Starkweather v. Herrick E. Martin and others.

Deed: Registry: Seal: Device: Record entry: Statutes. For the purpose of determining how far the absence on the registry of a deed, of any mark or device indicating a seal, or of any statement of the register that the original was sealed, would affect the validity of the record entry as evidence of title, the statute governing the execution and sealing of deeds, and that governing their registry, at the time, are regarded as in pari materia. Registry: Seal: Deed: Inferences: Evidence. Under the laws in force in 1880 upon these subjects, the absence of any trace of the "device by way of seal " which a grantor was authorized to adopt as a sufficient seal, upon the record of a deed, is not sufficient to warrant an inference that the original was unsealed, or to justify the rejection of the record as evidence.

Record entry : Deed: Seal: Presumptions. Where such record entry is made

by the proper officer and in the appropriate place for the registry of deeds, under a law permitting the registry of only sealed instruments, and the instrument is in the form of a warranty deed purporting to be acknowledged and dated at a time when it was the common and lawful course to seal conveyances and contrary to official duty to take the acknowledgment unless the conveyance was sealed, and where the conclusion, attestation clause, and certificate of acknowledgment of the instrument, all speak of it as under seal, it will be presumed that the original was sealed.