Compare Longendyke v. Longendyke, 44 Barb. 366 (N.Y. 1863) Freethy v. Freethy, 42 Barb. 641 (N.Y. 1865). See, also, 36 Harv. L. Rev. 346; Newton v. Weber, 110 Misc. 240, 196 N.Y.S. 113; Power v. Lester, 23 N.Y. 527; Allen v. Allen, 246 N.Y. 571, 159 N.E. 656; 37 Yale L. Rev. 834; Schubert v. Schubert Wagon Co., supra.

The earlier contract, which is subject to change at will, must yield to the later, which the law makes final and unalterable. Certain cases are relied upon by counsel which hold that contracts made between husband and wife before marriage were not, after the act of 1848, extinguished by their matrimonial union as they had been previously at common law. ( Power v. Lester, 23 N.Y. 527; Dygert v. Remerschnider, 32 N.Y. 629.) It is undoubtedly true that a contract made between a man and a woman before they were married, relating solely to property and not to services springing from the marital relation, would not be extinguished by their marriage after the passage of said act. There is no reason why any ante-marriage agreement, that is not inconsistent with the marriage contract, should not survive the latter when the legislature had declared that the property of any woman marrying after a certain date should continue her sole and separate property as if she were single. As to such a contract the wife might well be regarded as a feme sole in the performance of the agreement as well as in the making of it. Where, however, the contract related solely to personal services to be rendered by the woman for the man for a consideration named, and she subsequently agreed either expressly or impliedly to render those services for nothing, the later agreement necessarily suppla

Similar decisions have been made in other states. Thus in Randall v. Lunt, 51 Me. 246, 252, it was held that a husband, though insolvent, might convey real estate to his wife in payment of a note which he had given her for money loaned, if there was no intent to defraud or delay creditors; and in Bean v. Boothby, 57 Me. 295, 302, it was held that the assignment to the wife of a mortgage given by the husband did not discharge the mortgage, and that the mortgage, and the debt secured by it, were property, which she had the same right to purchase and hold as any other. So also in Power v. Lester, 23 N.Y. 527-536, it was held that the marriage of a female mortgagee with the mortgagor, after the act for the protection of the rights of married women, Laws N.Y. 1848, cap. 200, did not extinguish her right of action upon the mortgage. The complainant has cited, in support of its claim, Chapman v. Kellogg, 102 Mass. 246, 248, and Abbott v. Winchester, 105 Mass. 115. These decisions rest upon the ground that, in Massachusetts, the common law doctrine has not been changed by statute, and that, therefore, there can be no valid contract between husband and wife, but that such a contract is a nullity.

         The marriage vested the husband with no legal or beneficial interest in the wife's separate estate, nor did it affect her right of action for the recovery of the debt, but she could proceed by suit in the same manner as if the marriage had not taken place. (Lewis & Chard v. Johnson, 24 Cal. 98; Wilson v. Wilson, 36 Cal. 447; Power v. Lester, 23 N.Y. 527.) The conveyance from J. C. Hussey to plaintiff was not a voluntary conveyance, but was founded upon a valuable consideration, and is valid as against the creditors of J. C. Hussey. (Babcock v. Eckler, 24 N.Y. 623.)

The fact alone that a wife joins with her husband in the execution of a mortgage upon the husband's real estate does not impair her right to priority as the holder of a prior mortgage. ( Power v. Lester, 23 N.Y. 527; Gillig v. Maass, 28 id. 191; Kingman v. Dunspaugh, 19 App. Div. 549.) Suits, therefore, was not entitled to priority because his mortgage was executed by this plaintiff. As to his claims that she made false representations to him at the time he took his mortgage, and that she was a borrower and interested in the $300, for which such mortgage was given, he has utterly failed to prove either of them. His own evidence shows that the husband alone was the borrower, and that he alone received the money loaned.

The fact alone that a wife joins with her husband in the execution of a mortgage upon the husband's real estate does not impair her right to priority as the holder of a prior mortgage. ( Power v. Lester, 23 N.Y. 527; Gillig v. Maas, 28 id. 191.) In both cases cited, however, the idea is recognized that there may be circumstances which would operate in equity to postpone her lien.

It is "a mere security, an incumbrance upon land." ( Power v. Lester, 23 N.Y. 527, 531; Trimm v. Marsh, 54 id. 599, 604.) The "mortgagee has a mere chose in action, secured by a lien upon the land * * * He would have the same right in case of a pledge."