Opinion of the Court. instrument. And the court concludes, after a full consideration of the subject, by observing that the whole doctrine of the liability of a married woman's separate estate to discharge her general engagements rests upon grounds which are artificial and which depend upon implications too subtle and refined; and that "the true limitations upon the authority of a court of equity in relation to the subject are stated with great clearness and precision in the elaborate and well-reasoned opinions of the Court of Appeals of New York in the case of Yale v. Dederer," which we have cited and says: "Our conclusion is that when by the contract the debt is made expressly a charge upon the separate estate, or is expressly contracted upon its credit or when the consideration goes to the benefit of such estate or to enhance its value, then equity will decree that it shall be paid from such estate or its income, to the extent to which the power of disposal by the married woman may go. But where she is a mere surety or makes the contract for the accommodation of another, without consideration received by her, the contract being void at law, equity will not enforce it against her estate, unless an express instrument makes the debt a charge upon it." We concur in these views as to the limitation on the authority of a court of equity in relation to the subject. In this case the amended bill avers that the defendant, Mrs. Hannon, executed the notes in question with the intention of charging her afteracquired property; but inasmuch as her contract is in writing, the averment can be regarded only as the pleader's conclusion, which must be determined by the application of the law to the undertaking itself. There is nothing in the written agreement which makes any reference to an after-acquired estate. In Pike v. Fitzgibbon, 17 Ch. D. 454, 460, the question as to the power of a married woman to bind her subsequentlyacquired estate was considered. In that case Lord Justice James said: "Another point also has been raised, of which we must dispose, and which has arisen, as it seems to me, from a misapprehension of some of the cases. It is said that a married woman having separate estate has not merely a power of contracting a debt to be paid out of that separate estate, but, Opinion of the Court. having a separate estate, has acquired a sort of equitable status of capacity to contract debts, not in respect only of that separate estate, but in respect of any separate estate which she may thereafter in any way acquire. It is contended that because equity enables her, having estate settled to her separate use, to charge that estate and to contract debts payable out of it, therefore she is released altogether in the contemplation of equity from the disability of coverture, and is enabled in a court of equity to contract debts to be paid and satisfied out of any es ate settled to her separate use which she may afterwards a aire, or, to carry the argument to its logical consequences, out of any property which may afterwards come to her. In my opinion there is no authority for that contention, which appears to arise entirely from a misapprehension of the case of Picard. v. Hine, L. R. 5 Ch. 274, and one or two other cases which follow it, in which this point was never suggested.. I desire to have it distinctly understood as my opinion and the opinion of my colleagues, and, therefore, as the decision of this court, that in any future case the proper inquiry to be inserted is what was the separate estate which the married woman had at the time of contracting the debt or engagement, and whether that separate estate or any part of it still remains capable of being reached by the judgment and execution of the court. That is all that the court can apply in payment of the debt." Lord Justice Brett in his concurring opinion said: "The decisions appear to me to come to this: that certain promises (I use the word 'promises' in order to show that in my opinion they are not contracts) made by a married woman, and acted upon by the persons to whom they are made, on the faith of the fact known to them of her being possessed at the time of a separate estate, will be enforced against such separate estate as she was possessed of at that time, or so much of it as remains at the time of judgment recovered, whether such judgment be recovered during or after the cessation of the coverture. That proposition so stated does not apply to separate estate coming into existence after the promise which it is sought to enforce." p. 462. It is true that in that case, (Pike v. Fitzgibbon,) as stated Opinion of the Court. by Lord Justice James, it did not appear that the appellant had, since the date of her engagement, acquired any property settled to her separate use, and had not asked by the appeal to vary the judgment as regards subsequently acquired property. "It is therefore sufficient," said the Lord Justice, "to state, as a warning in any future case, that the only separate property which can be reached is the separate property, or the residue of the separate property, that a married woman had at the time of contracting the engagements which it is sought to enforce." But in King v. Lucas, 23 Ch. D. 712, 724, in the Court of Appeal, the question, whether the engagements of a married woman could be charged upon her subsequently acquired estate, was actually involved, and the decision in Pike v. Fitzgibbon was held conclusive. Said Cotton, L. J.: "With respect to her separate estate she is treated as a feme sole, but it has been decided that it must be separate estate which belonged to her at the time of the making of the contract, and is still remaining at the time when the contract is enforced and judgment obtained. In Pike v. Fitzgibbon it was held by a learned judge that all separate property could be charged which belonged to the married woman at the time when the contract was enforced, but that was held to be erroneous by the Court of Appeal, and the rule was laid down that the contract could be enforced only against the separate estate existing at the date of the contract. In the present case, therefore, there is no question as to any principle; the only question is whether certain property was the separate property of the lady when she made the contract." In view of the considerations stated and the decisions mentioned, and numerous others which might be cited, we are of opinion that in Ohio the separate property of a married woman could not be charged in equity by contracts executed previous to its existence, for the obvious reason that in reference to such property the contracts could not be made. The after-acquired estate was not at the time available in a court of equity to meet the contracts, for at their date it had no existence. The English Married Woman's Property Act of 1882 provided that "every contract entered into by a married woman Syllabus. shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary be shown." And in section 1, (sub. sec. 4,) it was declared that "every contract entered into by a married woman with respect to and to bind her separate property, shall bind not only the separate property which she is possessed of or entitled to at the date of contract, but also all separate property which she may thereafter acquire." And yet in Deakin v. Lakin, 30 Ch. D. 169, 171, it was held that this act did not enable a married woman, who had no existing separate property, to bind by a contract separate property afterwards acquired, and Pearson J., said: "In my opinion, according to the true construction of the act, the contract which is to bind separate property must be entered into at a time when the married woman has existing separate property. If she has such property her contract will bind it. If she afterwards commits a breach of the contract, and proceedings are taken against her for the breach of contract, any separate property which she has acquired since the date of the contract and which she has at the time when judgment is recovered against her, will be liable for the breach of .contract. But the act does not enable her, by means of a contract entered into at a time when she has no existing separate property, to bind any possible contingent separate property." It follows that the decree must be affirmed, and it is so ordered. FISHER v. SHROPSHIRE. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF IOWA. - No. 54. Argued November 22, 1892. Decided January 3, 1893. The courts of the United States enforce grantor's and vendor's liens, if in harmony with the jurisprudence of the State in which the action is brought. The doctrine of a vendor's lien, arising by implication, seems to have been generally recognized in the State of Iowa. Statement of the Case. If a suit to enforce a vendor's lien upon land in Iowa is pending at the time when the vendee conveys the land to a third party, no presumption can arise that that lien has been waived, as against the grantee of the vendee, whatever may be the general rule in that State as to the presumtion of the waiver of a vendor's lien, in case of a conveyance of the tract by the vendee. The filing of the petition in this case to assert and enforce a vendor's lien was notice of its assertion and prevented third parties from acquiring an interest in the subject-matter against and superior to the lien. It does not appear to be necessary in Iowa to exhaust the remedy at law before proceeding to enforce a vendor's lien. Under the circumstances of this case, as detailed in the opinion; held, (1) That a vendor's lien existed on the property for the complainants' benefit which could be enforced by them for the balance due them on the purchase money; (2) That George Lyle was not a necessary party to the proceedings to enforce it; (3) That there was an error in the master's computation, which made it necessary to remand the case. IN 1876, Mrs. Loretta Shropshire owned in her own right five hundred and forty acres of land in Iowa, derived from the estate of a former husband, forty acres of which constituted her homestead. May 1, 1877, she borrowed from the German Savings Bank of Davenport, Iowa, $10,000 for three years, with interest at the rate of ten per cent per annum, payable semi-annually, and she and her husband, Alexander C. Shropshire, executed a mortgage on the five hundred and forty acres. Judgments were rendered against her for various sums, and her brother, Alexander Rhinehart, became her surety upon a bond for a stay of execution. The stay having expired, all the real estate of Mrs. Shropshire, except her homestead, was held for sale, subject to the prior mortgage of the bank. The statute of Iowa provides that "in no action where the defendant has stayed execution on the judgment, shall he be entitled to redeem." McClain's Ann. Code, § 4331. In February, 1878, Mrs. Shropshire applied for assistance to John Lyle, and it was arranged between her brothers, Alexander K. and Jehu Rhinehart, and herself, that Jehu Rhinehart should bid in the property at the sheriff's sale, and, if she |