Big Plum Creek Turnpike Co. v. Walker & Co.

145 Ky. 269 | Ky. Ct. App. | 1911

Opinion of the Court by

Chief Justice Hobson

Affirming.

N. L. Walker and Annie E. Walker were married on .December 26, 1900. On March 4, 1903, he conveyed to her all his real estate consisting of a farm of 281 acres in Spencer County, worth $8,000 or $10,000. In February, 1905, he subscribed $420.00 to the building of the Big Plum Creek turnpike. He did not pay the subscription and a suit having been instituted, against him by the Turnpike Company, a judgment was' rendered in its favor, on which execution issued and was returned no property found. Thereupon this suit was brought by the Turnpike Company against him and his wife to subject to its debt the property in the name of his wife. On a final hearing of the case the petition was dismissed. The Turnpike Company appeals.

The facts of the case are about these: N. L. Walker and his wife had no children; he was not on good terms with some of his relations, and made the deed to his wife to secure her in the case of his death. He was about twenty years older than she and his health was not good. So far as appears he owed no debts at the time. The debt to the Turnpike Company was created about two years after the deed to his wife was made, and this is the only debt he owes so far as the record shows. He is a man of good business capacity, and had made by his own exertions and good judgment the property which he conveyed to his wife. He and his wife have lived on the farm from the date of the deed and by their joint management have since accumulated $2,600.00 in bank and have about $1,000.00 lent out, besides some personal property on the farm. There is proof for the Turnpike Company to the effect that the husband has managed the farm since the deed was made pretty much as he did before. On the other hand the proof for the wife is to the effect that the husband’s health has been very bad; that he has been unable to do much labor with his own hands, and that he spends most of his time about the house. The proof on both sides shows that all the business has been done in the name of the wife; all the deposits in bank have been made in her name; all the checks have been drawn by her.

It is insisted for the appellant that under the rule laid down in Gross v. Eddinger, 85 Ky. 168; Edelmuth v. Wybrant, 53 S. W. 528; Blackburn v. Thompson, 66 S. W., 5, and Patton’s Exor. v. Smith, 130 Ky. 819, the court should have subjected the earnings accumulated in the name of the wife upon the ground that they are in fact tbe earnings of tbe husband. But it appears from tbe proof that tbe wife bas made $100 a year from ber turkeys, $200 a year from ber other poultry, and as tbe deed cannot be attacked, she is entitled to a reasonable rent on ber land. When we add to tbe sum’s named a reasonable rent for tbe land for tbe years involved, we have a much greater sum than tbe accumulations in ber bands as shown by tbe evidence. Tbe case is not as strong for tbe creditor as in Guthrie v. Hill, 138 Ky., 181, and under tbe rule followed in that case, tbe circuit court properly dismissed tbe plaintiff’s petition in so far as it sought to subject to tbe plaintiff’s debt tbe money or property now owned by tbe wife.

Tbe husband bad some personal property at tbe time be made tbe deed to bis wife, and this personal property was not conveyed to ber. Tbe proof does not definitely show, however, that any of this property is now in the possession of the wife. Tbe plaintiff did not by allegation or proof show that tbe property was on band or trace its proceeds into any property now on band. Tbe petition seems not to have been framed upon this idea and tbe proof was taken in tbe same way.

Judgment affirmed.