Opinion by
Judge Holt;The personal judgment rendered in this case against the appellant, Sophia Hughes, was improper, first because it was not asked and no defense made to the suit, and secondly she, was a married woman when she executed the note upon which it is based, and the fact that she became dis-covert by divorce before the date of the judgment did not authorize it.
Both she and her then husband signed the note. The petition alleges that the land described in it was then her separate estate; that she intended to charge it with the debt; that it was so understood; that such was the agreement when made and therefore the plaintiff seeks to subject it.
Manifestly these allegations are insufficient for that purpose, because there is no statement that she created the debt, or that it was *342made for her use, or that she received the benefit of it. Baird et al. v. Bruning, 84 Ky. 645. It remains then to be seen whether the defect was cured by any amendment. It is proper to notice first however, the claim of her counsel, that the petition does not show that the land named in it is her separate estate; and that the state-men in it “is her separate estate” is but a conclusion of law, and that no exhibit of,vtitle being filed, that it was necessary to allege the facts showing it to be such estate. We, however, regard it as sufficient in this respect; it is like a plea that a note contains a certain amount of usury or an untraversed allegation of title in the party, or that a defendant by his wilful neglect shot and killed the decedent. It is not necessary to set out the facts constituting the wilful neglect. In Eastin v. Fulwiler Ms., Feb. 1857, it was held that a denial by a married woman that she signed a note with the intention of binding her separate estate was insufficient to cast upon the plaintiff the burden of so proving as the law then so presumed prima facie thereby holding inferentially that the allegations that she intended to bind her separate estate was sufficient. The words are a statement of fact “blended with and moulded by the law.” By amendment the plaintiff alleged that the land was conveyed to “the defendants”; that the money for the loan of which the note sued on was given, was advanced and loaned to the appellant “to protect her against her loss of the property and to enable her to live.”
The pleader also alleged, that the loan was made to buy necessaries for the appellee and her family, her husband included, as if the appellee was seeking to render the property liable as her general estate, but yet he does not state that it, or her interest in it is not her separate estate and while loosely drawn, yet the additional statements in the amendment should be taken in aid of the petition, and when this is done we have a statement by the plaintiff that the property described is the separate estate of the appellant; that the loan was made to her and for her benefit; and that she then intended to charge the property with it, and that it was then so understood and agreed, which in our opinion is sufficient to support the judgment in rem.
It is true that she was a married woman when the petition was filed but its allegations in the absence of a denial were nevertheless to be taken as true.
Under Civil Code, § 126, she had the right especially by reason of *343the filing of the amendment to file her answer at any time before the submission of the cause, and when it was submitted and the time arrived for the court to act and determine whether the allegations were to be taken as true, she had been divorced and was sui juris.
The judgment is reversed but only to the extent of the personal judgment against the appellant.
Judgment reversed.