Page:North Dakota Reports (vol. 3).pdf/306

 Statutes which have been enacted have been intended for the benefit of married women. Her incapacity to contract is a protection. Yale v. Dederer, 18 N. Y. 272. Brandt on Suretyship 5. A married woman can never be held without her contract is within the power conferred upon her by statute, and it is not the primary object of the statute to extend her liabilities, but to protect her property interests. Her general engagements having no reference at the time to her separate property, cannot be enforced against Her separate estate. Wells. Sep. Prop. of Married Women, §§ 319 to 323.

J. We have to determine on this appeal a single question of law. The essential facts are few and simple. The defendant Ellen A. Stevens executed, as surety with her husband, a promissory note to the plaintiff. To secure the note, they both executed a mortgage upon the homestead of the husband. In neither the note nor the mortgage did the wife charge her separate estate with the payment of the amount of the note; nor did she in any other manner charge such estate with its payment. At the time the note was signed she owned no separate estate whatever. The action is brought against her upon the note. The only defense is that she is not liable thereon, because she was a married woman at the time the note was given. This defense was successful below. From the judgment dismissing the action the appeal to this court has been taken, and whether we affirm or reverse this judgment depends upon the question whether a married woman is liable on her contract under the circumstances existing in this case. The rule which renders her liable must be found in the statute, or it does not exist. At common law, and even under equitable rules, this contract would be void. It is unnecessary to restate the reasons which have been given for the doctrine which exempts married women from liability on their contracts. Neither is a citation of authorities to support this rule necessary. The reasons which gave birth to this rule, and the rule itself are familiar to bench and bar.

Whenever it is claimed that a married woman is liable upon