91 Ky. 294 | Ky. Ct. App. | 1891
delivered the opinion op the court.
The appellants, Carter Bros. & Co., obtained a judgment in the Warren Circuit Court against C. S. Martin for the sum of five hundred and sixty-one dollars and eighty cents, with interest from the first of January, 1887, and the costs. An execution was issued on the judgment, and a return of nulla, bona made by the sheriff. This action was then instituted to subject to the paymeut of this debt a store-house and lot in the possession of C. S. Martin and his wife, A. A. Martin, and the claim to relief existed on the ground that the property in controversy belonged to the wife and not to the husband, and, if not the property of the wife, that she held the benefit of a mortgage lien upon it superior to that asserted by the plaintiffs.
The wife, A. A. Martin, was made a feme sple by a judgment of the Warren Circuit Court, at its February term, in the year 1871, her husband being a party to the action,' and that judgment now in full force.
At the time that judgment was rendered, the wife had no estate whatever, and the husband owned the store-house and lot, and the dwelling-house, with a mortgage upon it, or the store-house and lot, for one thousand dollars, to one Gossom. They had a family of children, and from the testimony before
As soon as that judgment was rendered, C. S. Martin (the husband) purchased a'stock of goods valued at four or five hundred dollars, and began merchandizing in the name of his wife, having also made the purchase in her name. He also ran a saloon in her name, from which he realized a profit of about one hundred and fifty dollars per month, and continued to run it until the local option law went into effect, and when that was does not appear.
They have accumulated a farm containing about sixty acres, paid off the mortgage debt to Grossom, and now have a stock of goods valued at seven hundred dollars. In the meantime they have raised a family of children, some of whom were large enough to aid in conducting the store.
The wife confined herself to the conduct of her household affairs, and took no part in the management of the saloon and the store-house, but the whole of it was operated, managed and used by the husband in the name of the wife, and the accumulations invested and expended in the same way. The mode of transacting the business was notorious, and known to the neighborhood, and nothing concealed as to the rights of the parties, and still the husband, whose
The statute under which the wife is made a feme sole, or rather the proceedings under it, are ecc parte, and while this action is not an attack upon that judgment, it does not stand in the way of subjecting the property of the husband, although in the wife’s name, to the payment of his debts. There was an object in view in enacting that statute. It was to enable married women with property,- having thriftless and improvident husbands, to manage and control it and the proceeds for their own use, and the fact that the husband may have had an agency in improving or increasing the wife’s estate by rendering personal service in its control, would not authorize the chancellor to appropriate it to pay his debts; or where the husband, by reason of his habits, is unable to make a living for his family, the wife, the facts showing that she is better suited to be at the head of the household, may be made a feme sole; or where the wife has an estate, and the husband becomes insolvent, the estate and its proceeds may be controlled by the wife for her own use. In all such cases the claim of the wife to control • her estate appeals directly to the chancellor, and she may avail herself of this statute for the better security of her property.
It is not a question as to how far the husband may go in rendering personal service to the wife in the control, of her estate, but- the inquiry is, can the wife, without any capital whatever, claim the accumulations of property arising by reason of the business capacity of the husband, devoted through a long period of years in the sole management and control of the business, to the.exclusion of his creditors? He made a purchase of a few hundred dollars of goods in his wife’s name that grew to a business in a few years of seven or eight thousand dollars; kept a saloon, out of which he made one hundred and fifty dollars a month; was postmaster, from which he derived a like amount per year, and during this whole period the wife gave the business no personal attention, but
The judgment below is, therefore, reversed, and cause remanded with directions to subject the storehouse and lot to the payment,. first, of appellant’s claim, and then the claim of the wife as between the husband and wife. There is no issue affecting her rights.
Judgment reversed, and remanded for proceedings consistent with this opinion. The ten-dollar execution lien has a preference over both claims.