Dissenting Opinion by
Judge Pryor:In this case an effort is being made by the creditor to subject the real estate of the wife to the payment of the following note: “One day after date, I promise to pay J. Martine one hundred dollars for value received and signed.
A. I. Hughes,
Sophia Hughes."
The legal presumption arising from the face of .the paper is that it was the husband’s debt, and that the wife was the mere security. The intention t'o bind her separate estate, if she had any, might arise if the note was signed by herself alone, or the intention might be inferred on a just note if the wife could bind her separate estate for the debt of the husband as was the case at common law.
But now she can not do so and the exemption of such an obligation as this shows it to be the debt of the husband and not the wife.
The house and two lots are described and as alleged in the pleadings of the appellee, one is an elegant cottage worth $1,000 and the other lot worth $150. Both lots were sold for $169 and appraised at $550 and no redemption being made or offered, a deed was made to the purchaser. The husband and wife are both sued, and the allegation made that the money loaned to the defendant (what defendant is not stated), and it was so understood that said property which is her separate estate should be charged by said loan, as her husband who was then living with her was insolvent and could not have borrowed anything without such an agreement which was made and agreed to by the parties at the time. In accordance with the understanding the said Sophia was frequently permitted to pay. This is the whole of the petition and upon which process was exe*344cuted. It presents no cause of action against the wife, not even a defective cause of action.
After this petition is filed, an amendment is made alleging that the husband and wife have been divorced and the lots can be divided. Then a second amended pleading alleged that the money was loaned defendant to pay back taxes and prevent the property from being sold and to purchase necessaries; that said money was loaned to his aunt to protect her property and to enable her to live. There was no appearance by the wife and no service of process on either amendment but a judgment by default, and the entire property sold for $169.
This court has adjudged in more than one MS. opinion that the charge that the estate of a married woman is liable because of necessaries furnished must be sustained by proof in order that the chancellor may know what equitable claim the plaintiff has. See Riley v. Filmore, 11 Ky. Opin. 745. If necessary to show by proof what constitute necessaries in seeking to subject the general estate of the wife, it would be equally as important in attempting to subject her separate estate. But it is agreed that the disability of coverture had been removed and that the wife was then enabled to make her defense.
How has the chancellor been informed that this disability no longer continues? By an amended petition alleging the disability no longer exists which for the first time by induction, alleges a loan to the wife. The married woman is converted into a feme sole. A cause of action made against her for the first time by the amendment in the absence of an appearance or process served and a judgment by default subjecting her property as if she was a feme sole.
Beside there is no proof whatever in the record showing that she held the property as her separate estate. The deed was not filed and the opinion rendered upon the bare statement made “it was so understood that property which is her separate estate should be charged by said loan.” This is not an averment that it was the separate estate of the wife and certainly should not be construed in the favor of the pleader; that it is separate estate is purely a question of law. Will the chancellor upon the mere allegation of that sort with no exhibit of the wife’s title subject her estate to the payment of a debt which by the obligation itself shows the husband to be pri*345marily liable. If this was a case depending on the record alone conceding that the allegations are sufficient to maintain the action the judgment should be for the wife.
Carroll & Barbour, for appellant. Wm. Thorne, for appellee.The chancellor by his judgment by default, adjudged without proof that the note was executed in part for necessaries. That the land was her separate estate and lastly that she was a feme sole by reason of the divorce. I must dissent from the opinion rendered.