Green v. Page

80 Ky. 368, 1882 Ky. LEXIS 70

• Court: Court of Appeals of Kentucky
• Decided: September 19, 1882
• Status: Published

Opinions

JUDGE HINES

delivered the opinion of the court.

This is an action by the assignees of certain notes against, the assignors, in which it is sought to hold the assignors liable on the implied contract of assignment. The defense is that the assignees did not, with proper diligence, prosecute their legal and equitable remedies against the makers of the notes. The notes were executed by husband and wife for one half interest in a hotel building. In the suits upon the notes, no personal judgment was taken against the wife, and it is insisted that the failure to take such judgment is fatal to the claim of the assignees, appellees here. This is not correct. Under the Revised Statutes, which were in force at the time of the execution of these notes, a femecovert could not bind her separate estate at all, and could bind her general estate only for necessaries by writing signed by herself and husband: the general rule being that all contracts attempted to be made by a feme covert were void, with the exception indicated. This record shows the consideration of the notes, and we know, as a matter of law,, that it is not “necessaries” within the meaning of the statute. Under such circumstances, the court could not have entered a judgment against the wife which could have been enforced, or that would have given to appellees any legal or equitable remedy, so the failure to ask for or obtain such judgment is no evidence of a failure to prosecute with, reasonable diligence all legal and equitable remedies. This, is not like such a case arising prior to the adoption of the. statute forbidding a feme covert to bind her separate estate, for' then such estate might be bound when the cqntract was, made, and the credit extended with that view. U nder that statute, any contract made by a feme covert, unless within the 'exception, was absolutely void, and therefore any judgment entered upon it would be a nullity. This view is not necessarily in conflict with Hughes v. Brown, 3 "Bush, 660, because the expression in that case of the opinion that the note was void was not essential to the conclusion reached. by the court.

Appellants make many other questions as to diligence,, but the pleadings do not authorize an inquiry into them,, because 'the petition states in detail the steps taken to' enforce the démands against the makers of the notes, and these allegations are not specifically denied so as to raise an issue as to their truth, and as the allegations of the petition .show legal diligence, appellees’ right of recovery is complete.

The pleadings also settle the question as to the assignment of the note to Page & Co. It is alleged in the petition, and not denied, that the note was “assigned in blank” to Page & Co. This is conclusive of the right of Page & Co. to proceed as assignors.

Judgment affirmed.