This is an action in assumpsit upon a promissory note executed by a married woman and secured by mortgage upon her real estate.
For want of proof of consideration, bringing right of recovery under the provisions of the married women's act (3 Comp. Laws 1929, § 13057 [Stat. Ann. § 26.161]), the court entered judgment for defendant.
The mortgage is not here involved. Appeal is by plaintiff and right to have recovery without proof of such consideration is claimed under the following provision of the negotiable instruments law (2 Comp. Laws 1929, § 9273 [Stat. Ann. § 19.66]):
"Every negotiable instrument is deemed prima facie to have been issued for valuable consideration; *Page 579 and every person whose signature appears thereon to have become a party thereto for value."
That provision, enacted in 1905 (Act No. 265, § 26, Pub. Acts 1905), as a codification of the law, brought no change in the fundamental principle which has always prevailed in this jurisdiction that a negotiable note imports consideration.Stewart v. Shaw, 55 Mich. 613; Manistee National Bank v.Seymour, 64 Mich. 59; Cawthorpe v. Clark, 173 Mich. 267;McQuillan v. Eckerson, 178 Mich. 281.
But this rule falls far short of constituting consideration evidence in the particulars required to constitute a married woman personally liable.
The negotiable instruments law does not enable one suing upon a married woman's promissory note to have recovery without showing that the married woman had capacity to execute the obligation and to assume personal liability.
As said in Monroe State Savings Bank v. Orloff, 232 Mich. 486,492:
"The rule is well established in this State that when it is sought to hold a female on an obligation signed by her, and it appears that she is a married woman, the burden is on the plaintiff to show that a consideration passed to her; in other words, that her promise to pay had reference to her separate property. Judd v. Judd, 187 Mich. 612, in which the earlier cases are reviewed and discussed."
But it is said that defendant did not plead coverture.
It was not necessary for her to plead coverture for her denial of the following allegation in plaintiff's declaration framed such issue:
"That the said note and/or mortgage related to the sole and separate property of the said defendant Margaret Manning, and the money loaned to the said *Page 580 defendant in connection with the said note and/or mortgage benefited the said defendant with respect to her sole and separate property and/or estate."
Plaintiff failed to show that the note "benefited the said defendant with respect to her sole and separate property and/or estate" and, without such showing of defendant's competency to incur the personal obligation in suit, the circuit judge was clearly right in entering judgment for defendant.
The judgment should be affirmed, with costs to defendant.
POTTER and NORTH, JJ., concurred with WIEST, J.