204 Ky. 76 | Ky. Ct. App. | 1924
Opinion op the Court by
Affirming.
Appellant, Esther Belle Brown, of Mercer county, in 1922 was the owner of a large tract of valuable farming land which she contracted to sell to appellee, W. E. Allen, at the price of $80.00 per acre,'the purchaser to assume a lien indebtedness of $13,969.09 with interest, then held by the Fayette National Bank, the balance to be paid to appellant in fixed amounts at designated times. The contract was reduced to writing and signed by both Esther Belle Brown and W. E. Allen on February 21, 1923. At the time of the making of the contract and for some time previous thereto and thereafter William E. Brown was the husband of Esther Belle Brown, but they were not living together. .He was asked to sign the contract for the sale of his wife’s land but declined to do^ so. Thereupon the parties entered into another written contract for the sale and purchase of the same land, in which contract the original contract was referred to, it being recited that “ whereas, for reasons known to all parties hereto, the said first parties were unable to convey said property upon said date (February 21, 1923),
Soon after the last contract was made appellant Esther Belle Brown sued her husband for divorce in order to enable herself to convey the property and to avoid the effect of sections 506 and 2128, Kentucky Statutes, which renders the contract of a married woman to sell her lands void unless her husband joins with her, or first conveys the property. The husband contested the right of the wife to divorce and the prayer of her petition was denied. She appealed to this court, but being unable to secure an advancement of her cause for early hearing she abandoned the appeal and induced her husband to file a counterclaim in the divorce suit pending in the circuit court. This he did for the alleged consideration of $5,000.00, on January 19, 1924. The wife did not contest his right to divorce, and a divorce was granted him in accordance with the prayer of the counterclaim. Having relieved herself of the disabilities incident to coverture Mrs. Esther Belle Brown tendered a deed to appellee Allen for the land, and when he refused to accept it, she commenced this action in the Mercer circuit court against him for specific performance of the contract whereby she undertook to sell to him and he to purchase her farm, and prayed that he be adjudged to pay the purchase price in accordance with the terms of the contract to which we have referred.
The inability of a married woman by contract to sell or convey her real property without the cooperation of her husband is fixed by section 2128, Kentucky Statutes, which says “she may make contracts, sue and be sued as a single woman, except that she may not make any ex-ecutory contract to sell or convey or mortgage her real property, unless her husband joins in such contract.” This section of the statutes has been construed many times by this court, holding that the executory contract of a married woman to sell and convey her real property was absolutely void where her husband did not join in the writing. Coleman v. Coleman, 142 Ky. 36; Miller v. McLin, 147 Ky. 248; Niles v. Niles, 143 Ky. 94; Hoffman v. Colgan, 74 S. W. 724; Farmers’ Bank v. Richardson, 171 Ky. 340.
It is also provided in section 506, Kentucky Statutes, “that the conveyance of a married woman maybe by a joint deed of herself and husband,” or “by separate instrument; but in the latter case the husband must first convey or have theretofore conveyed.” Construing this section we have held that the conveyance of a wife of her general estate must be made in the manner pointed out therein, and a deed executed by the wife alone is invalid. Bohannon v. Travis, 94 Ky. 59; Newby v. Cox, 81 Ky. 58. In Weber v. Taner, 23 R. 1107, we held that a deed of a married woman in which the husband does not join is void and passes no title. See also Beverly v. Waller, 115 Ky. 596; Mays v. Pelly, 125 S. W. 713; Mounts v. Mounts, 155 Ky. 363; Potter v. Stanley, 187 Ky. 292.
While the contract was in this condition and before appellant obtained a divorce from her husband, appellee Allen in December, 1923, notified appellant in writing that he would not take the land under his written option but would treat the contract as one of rental only. He thus manifested his good faith by informing appellant of his intention to withdraw from the arrangement and to allow her to sell or convey her property to another. At any rate she was not at that time nor for some weeks thereafter qualified to sell and convey her real estate, her divorce not having been granted until the following January.
Appellee Allen, who owned something more than $13,000.00 worth of purchase money notes against the land of appellant, and which notes were due at the time he filed his answer and counterclaim, included the said notes in his counterclaim and sought to have his lien on the land enforce/! for the payment-of the notes. The trial court so adjudged and directed a sale of the land for the satisfaction of the lien obligation. As the notes were past due we see no reason why appellee was not entitled to this relief.
Appellee, Esther Belle Brown, was not entitled to specific performance of the contract, which because of her disabilities, was unenforceable against her.
Judgment affirmed.