123 Ky. 291 | Ky. Ct. App. | 1906
Opinion by
Affirming.
The only question in this ease is whether or not the land owned by appellants, and situated on the south side of Garland avenue, between Eighteenth and Twenty-Sixth streets, in the city of Louisville, can be subjected to the payment of the costs of improving the avenue between the streets named. The real estate sought to be subjected is a part of a tract of land conveyed to the mother of appellants in 1847 who married W. H. Dulaney about 1854, and died in 1901. It appears from the record that in 1868 the territory including the land in question was annexed to the city of Louisville, and about 1871 the street now called Garland avenue was opened. The center line of this street was the division line between the lands of Marguaret Dulaney on the south and Beynroth and others on the north, and when the street was opened W. H. Dulaney donated 40 feet of it, and Beynroth and others 40 feet, making the street 80 feet in width. After this street was opened the
In Louisville Railroad Company v. Stephens, 96 Ky. 401, 16 Ky. L. R., 552; 29 S. W. 14, 49 Am. St. Rep. 303, where the conveyance of the wife was so defective as not to pass title, this court said: “We are aware of no case in which it has been held that a married woman is estopped from asserting’ title to her land except on the ground of fraud. She can be divested of her interest only in the mode pointed out by the statute.” The doctrine of this case and others along the same line is rested upon the ground that as the statute (Ky. St. 1903) provides in sections 505, 506, 2129, that the only way by which a married woman may sell and convey her land is by writing acknowledged by her and her husband, these statutory provisions preclude the wife from divesting herself of title to real estate in any other manner. There is a great deal of force in this position, and it has been frequently held by this court that, when the wife undertakes to divest herself of title by contract or conveyance, the contract or conveyance must be executed in the manner provided by the statute. Kennedy v. Ten Broeck, 11 Bush, 241 But there are other methods by which married women can divest themselves of title as effectually as by contract or conveyance. To illustrate: In Heck v. Fisher, 78 Ky. 643, it is said that, “while the rights of married women are jealously watched over, by the courts, they will not permit coverture to be used as a cloak for fraud, even when the feme covert is quiescent, and not an active participant in its perpetration.” In Connolly v. Branstler, 3 Bush, 702, 96 Am. Dec. 278, the court held that a married woman was estopped from asserting dower in real estate of her husband
In this State, in 1894 and prior to the time these improvements were made, the Legislature enacted a law removing, with few exceptions, all disability of married women, giving them the right to contract and be contracted with, sue and be sued, and divesting the husband of all control over the property of the wife. In Elliott on Roads and Streets, p. 102, it is said: “The weight of authority sustains the doctrine that a married woman may be estopped in pais, although it is perhaps true that stronger circumstances are required to be shown than in the case of one fully competent to contract. If it be true that a feme covert may be estopped by matters in pais, then it follows that a dedication may be presumed, for it rests upon the same principle.” In Riley v. Buchanan, 116 Ky., 625; 76 S. W. 527, 25 Ky. Law Rep. 863, 63 L. R. A. 642, this court said: “If the real owner ' suffers the public generally to so use his land as a passway, under a notorious claim of right for a great length of time, whereby others may have been induced to buy property in that, vicinity, relying upon the apparent right of the public to use this passway, and by which the purchase price of their lands may have been affected, it is unfair that the owner should be permitted to gainsay the truth of it. The law operates upon his conscience, and makes effectual that which he has suffered for so long to appear to be so, by raising the conclusive presumption that he has actually done what he had allowed the public to believe he had done — dedicated the passway to the
Mrs. Dulaney having seen this street occupied by the public for more than 25 years, during a large portion of which time the land occupied as a street was exempt from taxation because of that fact, we conclude that, if living, she would be estopped to deny her liability for improvements made by the city on this street that increase 'the value of her property, because to do so would permit her to reap the benefits of the improvements without contributing anything thereto, and would be a fraud upon the rights of the persons who made them upon the faith of her dedication of the street and its use by the public during this long period of time. A married woman may be estopped under circumstances such as áre shown in this record from denying the dedication to public purposes of a public way, and may be divested by her conduct of so much of the right, title, and interest in the street as is necessary for the use of the public.
As the children of Mrs. Dulaney cannot occupy a better position than she does, the judgment of the lower court is affirmed,