Concurring Opinion.
Marr, J.I concur in the opinion and decree pronounced by the Chief Justice, as far as it goes ; but I do not think it goes far enough.
The proof is plain that the plaintiff was a married woman at the time she executed, the notes in question ; and I think the notes are void for want of the authorization of her husband.
This does not involve the nullity of the adjudication to her of the property which belonged to the community of which she was a member. She acquired a perfect title by the adjudication; and she is bound to-pay according to the terms of the sale. Between the date of the adjudication and the giving of the note she married; and she was not legally capable of binding herself by note or mortgage, although she was bound by the adjudication.
The record shows that she was cited to answer, and that a judgment by default was entered and confirmed against her. In the petition brought in the name of herself and her husband it is stated that they ■were both cited ; but this fact is not shown otherwise ; and as the-record does show the citation addressed to and served upon her alone, the presumption is that if there had been a citation addressed to and served upon the husband that fact would have been shown by the exhibition of the citation.
I consider the petition as the work of the attorney who drew it. No allegation of service had been made by Móriarty, and his rights were-not changed by that statement. I do not think, under the decisions in Patterson’s case, 5 An., Fasnacht’s case, and Baines vs. Burbridge, 15 An., that this unnecessary statement, which, so far as the record shows, is not true, is to be taken as a judicial admission ; which, in my opinion, means what is alleged by the one party, and admitted to be true by the other, or what is alleged by one as a basis of the right which he asserts,, and which estops him.
I think the judgment by default was a nullity; and the entire judgment should be perpetually enjoined.
1. Because of the nullity of the notes and mortgage for want of the proper authorization, and the consequent want of capacity of the wife to contract.
2. Because of the nullity of the default taken against the wife with*123out proof of the authorization of her husband, or service of citation or him.
The right should, be reserved to Moriarty to sue for and receive whatever may be due him for money lent and advanced, and to Mrs. Twohy, or to Moriarty, if he-is her transferee, to recover her net half of the community, as heir of her deceased father, according to the terms of the adjudication.