dissent. JUDGE PAYNTER delivered the eoixowing dissenting opinion.
This action is based on the following note: “?1,000. Eight months after date, we, or any of us, promise to pay Turnelly & Gill one thousand dollars. Mrs. L. A. Turner signs this note as a feme sole, and binds her estate for its payment. This note is not transferable. This March 12, 189á. L. A. Turner, L. A. Bradford.” As part of the transaction of the execution of the foregoing note, Turnelly & Gill executed a writing which is-as follows, to wit: “U. A. Bradford & Q. M. Turner and wife have this day executed to us a note for one thousand dollars, due in eight months, and nontransferable. This note is made to secure Turnelly & Gill against possible loss growing out of advances they made during this year to Bradford & Turner for the purchase of loose tobacco, and, if no such losses are made, then this said notéis to be surrendered to the parties making it; and, if such losses should be less than one thousand dollars, then only the loss will be collected by us on the *420note. This March 12, 1894. Turnelly S¿ Gill.” The last writing was pleaded by the defendants.
• Until the act which authorized courts of equity, on the petition of husband and wife, or on her petition, the husband being made a defendant, to empower a married woman to contract and obligate herself as a feme sole she could not enter into any contract by which she could bind herself personally, — even when she had a separate estate she could not do so; neither under the statute which allowed her to execute obligations for necessaries for herself, could she bind herself personally.
This court said she could not appear in an action and release errors, and that there was no case on record where a personal judgment had been rendered against a married woman on a contract which she had made. Breckinridge v. Coleman, 7 B. Mon., 334. Then, unless a married woman was empowered to do business as a feme sole, as authorized by the statute, no personal judgment on her contracts could be rendered against her. Agnew v. Williams, 1 Bush, 4; Sweeney v. Smith, 15 B. Mon., 328. This court, in Parsons v. Spencer, 83 Ky., 305, and Spencer v. Parsons, 89 Ky., 577, [25 Am. St. R., 555; 13 S. W., 72], recognized the correctness of the doctrine as stated, and expressly held that in an action to enforce such a personal judgment, though- it did not so appear in the record of the case in which it was rendered, it could be shown, to defeat its enforcement, that it had been rendered on an obligation executed by a married woman during coverture which did not create a personal liability.
In an action of A. against B. & O. on a note executed under the old law, if it is averred that O. was the wife of B. when the note was executed, a demurrer should be sustained to the petition, because instead of stating a cause of ae*421tion against C., it would show that no cause of action existed against her on .the note. If there was no demurrer filed, then the court would, upon an inspection of the petition, refuse to render a personal judgment against her. It would be folly to say that if she chose to file an answer, and did not plead a defense which was stated in the petition, she waived it. It was unnecessary for her to rely upon a defense, by answer, which the plaintiff had pleaded for her. For this reason, if a party seeks to recover on an obligation, but, in attempting to state a cause of action, avers a state of facts which show his right to recover is barred, a demurrer should be sustained. The penalty for failing to file a demurrer — even by one not under disability — is to pay the costs occasioned by such failure.
The court is inaccurate in saying, “The pleadings do not show that she [meaning Mrs. L. A. Turner] was a married woman when the note was given.” In the amended petition, after stating that Q. M. Turner was interested with L. A. Bradford as a partner in the business that was being carried on in Bradford’s name, and that they demanded that Bradford & Turner secure them in the payment of the sums advanced, it is averred “that both Bradford and Turner at that time gave plaintiffs the pledge of their individual crops of tobacco, and that defendant Mrs. L. A. Turner, in order to make the pledge of her husband binding, joined in said pledge to the plaintiffs. And as this was not sufficient to satisfy the plaintiffs, or to secure them in their debt, the defendants Bradford and L. A. Turner made, executed, and delivered the promissory note sued on, for the purpose of securing plaintiffs’ debt, or any debt that might be due them for advances made Bradford & Turner.” The lan-' guage shows that she was the wife of Q. M. Turner when she executed the note, as she then signed a paper to make *422the pledge of her husband binding. Besides this, there is a stipulation in the note in suit which shows she was a married woman when she signed the note, and it is as follows: “Mrs. L. A. Turner signs this note as a feme sole, and binds her estate for its payment.” Whilst this stipulation is not set out in the petition, accompanied with a statement of facts showing she had been empowered to do business as a feme sole by judgment of a court of equity, so as to show she was bound on the note, still the fact is made to appear that she was then a married woman. However, independently of the stipulation in the note, the petition as amended, shows the plaintiff was not entitled to a judgment against her. Unless Mrs. L. A. Turner alleged some fact which made plaintiff’s petition good, it matters not how many defenses she may have interposed; she did not lose her right to insist in the court below, or here, that the plaintiff had not stated a cause of action against her. This court in many cases has held, although no defense was made in the court below, if plaintiff failed to state a cause of action, the judgment must be reversed. Section 380, Civ. Code Prac., referred to by the majority, is applicable to this case, because it provides that judgment shall be given for the jmrty whom the pleadings entitle thereto, though there may have been a verdict against him. Without going into a discussion of the question at length, for the purpose of and the effect of the act of March 15, 1894, on the rights of married women, it can be said, and this court has so held, it is not retroactive. If a contract made by a married woman before it became a law did not bind her personally, no personal judgment could be rendered against her. Neither does the act attempt to provide a remedy for the enforcement of antecedent contracts. The remedy for enforcing contracts re*423mained as it existed before the enactment of the law. The law does not free a woman from the disabilities of coverture. It simply gives her the right to contract (with specified qualifications), and to sue and be sued as to her property, only in so far as she is capable of contracting and being contracted with. If the statute denies her the right to enter into certain contracts, she is as powerless as she would have been under the former law to make such contracts binding, and the courts are as powerless to enforce them now as they were under the old law. If the law denies her the right to make a certain contract now, it follows that she can not be sued as a feme sole; and, as to that particular contract, she has the same protection before the law, and in the courts, as she previously had. Her emancipation from the disability of coverture is not general, but qualified.
• The note in suit was executed by Mrs. L. A. Turner to guarantee the payment of a debt of her husband. Even if it had appeared that the note had been executed since the act of March 15, 189^, became a law, there could not be a recovery against her (section 2127, Ky. Stat.), unless her estate had been set apart, by deed or mortgage, or other conveyance, for that purpose. The present statute does not affect the question of Mrs. L. A. Turner’s liability on the note, or make valid the judgment rendered on it; nor would the note be enforceable if it had been executed under the same condition under the present statute. Therefore it is certainly erroneous to conclude that she is not entitled to relief because the disability of coverture is removed as to some matters, though not as to a contract like the one under consideration. Under the statute in force at the time the note was executed, the courts would have refused to enforce a judgment on it, although the *424record failed to show Mrs. L. A. Turner was a married woman when she signed it, and under the present law the note is not enforceable. Still the court has taken the indefensible position that, because the statute removed her disabilities of coverture as to some matters, therefore she is not entitled to be relieved of the judgment because she did not plead and prove a fact which the plaintiff pleaded and proved for her. Even if the pleadings had not shown she was a married woman when the note was executed, but the fact appeared in the evidence, the court should have refused to render the judgment against her, which, under many adjudications of this court, is void. At common law it was not necessary for a feme covert sued upon a contract made during coverture to plead it, as she could rely upon it in evidence under the general issue. At common law, in an action when the plea was non assumpsit or non est facttmn coverture could be shown by evidence, without plea, to defeat a recovery. This practice in England was somewhat changed by rules which certain judges were authorized to and did make by virtue of an act of Parliament.