Azbill v. Azbill

| Ky. Ct. App. | Oct 22, 1891

JUDGE LEWIS

DELIVERED THE OPINION OP THE COURT.

Appellee, wife of appellant, brought this action, he being made defendant, for judgment empowering her to use, enjoy, sell and convey, for her own benefit, any property she may own or acquire free from the claim or debts •of her husband; and to make contracts, sue and be sued as a single woman, and to trade in her own name, and dispose of her property by will or deed, as provided in section 6, article 2, chapter 52, General Statutes, all which powers were granted by the judgment appealed from.

The cause set up in the petition for the action is that she is owner of a tract of land devised to her and some personal estate always controlled by her and kept separate from the property of her husband, and that they are, and have for two years been, living separate and apart. She states she owes no debts of any kind, and the judgment is not sought with intent to cheat, hinder or defraud creditors of her husband, and they will not be injured thereby.

The notice required by statute in such cases was duly ■published, and her petition is supported by an affidavit in substance, the parties have been married eighteen or twenty years, have no children, and not only been living apart, but she has brought suit for divorce, which was, however, not granted. It is further shown the plaintiff now-lives on her own land and is competent to manage her own affairs.

The fact the wife is authorized by the statute to alone-file such petition and obtain the relief, - her husband being made a party thereto, shows that the Legislatura • had in contemplation a state of case where discord and separation would exist, the husband would oppose such relief being granted, and where his property interests might thereby be affected. But where it is made to appear the wife has estate of her own and is competent to manage her own business, it is not the policy of the law to deny the full enjoyment of the first, nor right to do the other, if it appear necessary for her proper support, or if for any cause the husband fails or refuses to support and protect her. It is not distinctly alleged or proved in this case that the husband has abandoned the wife without making sufficient provision for her maintenance, but the fact of their being apart for the last two years, after living togeth er for such great length of time, and of her being now of her own means and by her owh exertions supporting herself, makes a state of affairs that, according to the reason of the statute, authorizes the relief sought, notwithstanding objection by the husband.

However, the statute requires the court in such case. to be satisfied before rendering the judgment that-the application is not made by either husband or wife with intent to cheat, hinder or delay creditors of the husband, and that his creditors will not be injured. And as a precaution against any possible injury or prejudice being done to them, the court is denied jurisdiction to grant any such relief until notice of the filing of the petition and object thereof shall be published at least ten days in a newspaper designated by the court or clerk in vacation. It is not stated by the husband in this case, nor - does it otherwise appear, that his creditors will be at all prejudiced by the judgment, or that he has any creditors. And as no one of his creditors appeared to object to rendition of the judgment, although the notice required was duly published, it is not the province of this court to say there was 'not sufficient before the lower court to satisfy it the husband’s creditors were not intended to be and will not be injured.

In the case of Moran v. Moran, 12 Bush, 801, the application of the wife was denied upon the principal ground it did not appear she had any estate of her own, or any trade or vocation in the pursuit of which she could engage, but such application was based upon- the insolvency of her husband alone. But when, as held in Franklin ex parte, 79 Ky., 497" court="Ky. Ct. App." date_filed="1881-10-08" href="https://app.midpage.ai/document/ex-parte-franklin-7131216?utm_source=webapp" opinion_id="7131216">79 Ky., 497, the wife shows her ownership of property and capacity to manage it for her support, and there is no evidence of her application having been made to cheat, hinder and delay the creditors, the relief should be adjudged if the other conditions of the statute exist.

"When the probable effect of granting such privilege to the wife will be to make her the holder of property or money acquired by the skill or exertions of her insolvent husband, and thereby cheat and defraud his creditors, as might be in such case as Moran v. Moran, it would be contrary to the meaning and reason of the statute to-grant it. But it does not appear in this case the husband is insolvent, nor that the probable effect of the judgment would be to defraud or any way affect his condition, or that such result is intended by her.

We think this-case gives jurisdiction and authority to •the court to render the judgment, and it is affirmed.