
    Jacob T. Burkhead v. E. S. Stuart et ux.
    Husband and Wife — Separate Estate — Proof.'
    A married woman, to escape liability for an incumbrance of her estate by herself and husband, must show by proof, by an exhibition of her title to same, as her separate estate.
    APPEAL PROM JEEEERSON CIRCUIT COURT, CHANCERY DIVISION.
    October 6, 1870.
   Opinion oe the Court by

Judge Hardin :

The incorrect statement in the note of Stuart and wife to Hays' that the consideration was “for necessaries” furnished, seems to have been the result of some purpose to evade the statute exempting the estates of married women from liability under their ordinary simple contracts; but it clearly does not appear that Mrs. Stuart was deceived as to the object of this device, nor that she did not understand and approve of it as a means of raising money by creating a debt which might be enforced. But she had a right to unite with her husband in an ordinary mortgage of her general property even for a debt of her husband, as this court has heretofore expressly decided, and although it is alleged in her answer that the land embraced by the mortgage was her separate estate, she wholly failed to show that fact, by any exhibition of her title, and the absence of such evidence this court must presume that the title to the land was such as the grantor might lawfully convey by mortgage.

The judgment must, therefore, be reversed; but further preparation should be allowed on the return of the case.

I. B. Greene, for appellant.

Sanders, for appellees.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.  