29 Ky.L.Rptr. 1248, 123 Ky. 703, 7 L.R.A.N.S. 1053
Court of Appeals of Kentucky.
GILBERT ET AL. v. BROWN.
Nov. 8, 1906.
ACTION: Reversed for further proceedings.


Appeal from Circuit Court, Clay County.
"To be officially reported."
Action by Lydia Brown against John H. Gilbert and others.
From a judgment in favor of plaintiff, defendants appeal.

LASSING, J.
In December, 1891, W. H. Brown and Nancy Brown, his wife, executed a note to F. M. Brown for $200. In December, 1895, this note was renewed for $264; this being the amount due on said note. After the execution of this second note, W. H. Brown died, and Nancy Brown executed and delivered to F. M. Brown her note for $285.12 in satisfaction of the note which he held against her and her deceased husband; thereafter, she paid through Lee Brown, her son, $50 on this note. F. M. Brown assigned and transferred this note to Lydia D. Brown, his wife. No further payments were made upon this note by Nancy Brown or any one else for her. After her death, Lydia D. Brown, the holder of said note, brought suit against her heirs at law to enforce its collection, and to subject certain real estate which had been given them by their mother just prior to her death to its payment. The plea of no consideration was interposed in the trial court, proof taken, and judgment entered in favor of plaintiff, and from that judgment defendants appeal.

The only question in this case necessary for determination is, was there any consideration for the execution of this note from Nancy Brown to F. M. Brown upon which suit was brought? This question of necessity relates back to the execution of the original note in 1891. When the original note was executed a wife could not bind her estate, except for necessaries, and she was wholly incapable of making any contract for any purpose, except for the purpose described by the statute; that is, for necessaries. And, where one is seeking to hold her upon a contract, it must be shown affirmatively that the claim comes within the statutory exception. The proof in this case shows: That at the time of the execution of the original note W. H. Brown sought the loan. That he was indebted for taxes due upon his wife's land for perhaps as much as two years; for grocers' bills, and others' bills. That he applied to his son, F. M. Brown, for the money, and, after some delay the loan was negotiated. The note was forwarded by W. H. Brown and Nancy Brown to F. M. Brown, who sent his check to them for $200, payable to W. H. Brown. W. H. Brown owned no estate, but his wife Nancy Brown owned a farm. There is not the slightest proof in the record as to the amount of taxes due or the amount of the grocers' bills or that credit therefor had been extended to Nancy Brown; but, on the contrary, the fact that the loan was sought by W. H. Brown, and the check made payable to him, goes to show that the debt was the debt of W. H. Brown, and not the debt of his wife, Nancy Brown. In the absence of any proof that the note was executed for necessaries contracted for by the wife, Nancy Brown, the presumption is that it was the debt of her husband, and that she attempted to sign the note as security for him. The renewal of the note in 1895, and the execution of her own note in lieu thereof after the death of her husband, were without consideration, and this court has held that, where the original obligation is void, a promise to pay after she became discovert does not make it binding on her. The contract of a married woman being void, cannot be ratified. The original note in this case not being for necessaries furnished the wife was void as to her. And, following the rule laid down in the above-cited cases, the execution of the renewal note in 1895, and her individual note executed in lieu thereof after the death of her husband, was void, and of no binding force and effect whatever. In the case before us there is no evidence that any property subject to execution was received by Nancy Brown from the estate of her deceased husband, W. H. Brown. And there was therefore no consideration for the execution by her of the note to take up the note of her deceased husband.

We do not deem it necessary to pass upon the other question raised on this appeal. But for the reasons given, the judgment is reversed for further proceedings consistent with this opinion.

Ky.App. 1906.
GILBERT ET AL. v. BROWN.
97 S.W. 40, 29 Ky.L.Rptr. 1248, 123 Ky. 703, 7 L.R.A.N.S. 1053


     

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