108 Ky. 602 | Ky. Ct. App. | 1900
Opinion op the court by
Appirming.
Appellee, Nannie Y. Trosper, and J. H. Campbell were married in the year 1878. Four children were born to them, — all girls. In October, 1895, appellee filed suit for divorce from her husband; he having taken up with a woman by the name of Burrilla Trosper, whom he had brought to his house, and by whom he had a bastard child, born shortly before the bringing of the suit. He had driven his wife and children away from home, and was living with Burrilla. He had a tract of land worth about $1,000; four horses worth, perhaps, $300; some stock, farming utensils, and household property. Appellee prayed in her petition in that case for alimony as well as a divorce. Issue was joined, and the case was tried August 13, 1896, when a final judgment was rendered, divorcing appellee from J. H. Campbell, and allowing her $500 as alimony, — $50 payable October 1, 1896, $50 January 1, 1897, and the remainder in four equal installments on the 1st day of October, 1897, 1898, 1899, and 1900; also, $200 for her attorney’s fee, to be taxed as costs, and the custody of the two older children. She had obtained an attachment upon his property, but this was discharged. By a subsequent judgment the cusitody of the two younger children was committed to her. Campbell paid the $50 due October I,1896; also, $43 of the $50 due January 1, 1897. On March
The determination of the case requires a construction of the following provisions of the Kentucky Statutes: “If the wife have not sufficient estate of her own, she may on divorce obtained by her, have such allowance out of that of her husband as shall be deemed equitable, and be restored to the name she bore before marriage if she desires it.” Section 2122. “Pending an application for divorce or on final judgment, the court may make orders for the care, custody and maintenance of the minor children of the parties. . . . But no .such order for maintenance of children or allotment in favor of the wife shall divest either party of the fee simple title to real estate.” Id. section 2123. “Sales and conveyances made to a purchaser with notice ... in fraud or hindrance of the right of the wife or child to maintenance shall be void as against them.” Id. section 2126. When, in a divorce case, a sum o.f money is allowed to the wife as alimony, and ordered to be paid by the husband, he becomes her debtor for the amount; and, on his failure
In this case it appears that J. H. Campbell has continued his illicit relations with the woman Burrilla Trosper, and that another child has been born to them since the divorce from his wife. He and Burrilla continued to occupy the land conveyed by the deed, since it was made, substantially as they did before. A part of it was rented out, but. the rent corn was delivered at Burr-ilia’s house. J. H. Campbell worked on the land, cultivating crops, planting things, and treating the place as his home. Appellant Joel Campbell lived seven miles off, and seems to have exercised no control over the property; and the social relations of appellant G. M. Campbell with the woman Burilla and J. H. Campbell tend strongly to sustain appellee’s contention. The evidence leaves no doubt that both of the appellants knew of the separation of J. H. Campbell from
It appears from the record that when the deed was made there was a mortgage on the land, in favor of J. H. Campbell’s attorneys in the divorce case, and several others, for something like $450, which was then released. Appellants testify that the money they paid Campbell for the land was used to extinguish this mortgage, and it is insisted for them that they should, in any event, have been substituted to the rights of the mortgagees. But this was not pleaded, and it does not seem proper to give such relief without a pleading asking it, or alleging the facts entitling them to it. Under appellee’s prayer for all proper relief, her petition properly setting out all the facts, the Chancellor, on final hearing, correctly adjudged to her such relief as she was entitled to, although part of it was not specifically prayed in the petition; and on the whole case, as the record stood, the judgment of the Chancellor is in accordance with the rights of the parties. Judgment affirmed.