122 Ky. 13 | Ky. Ct. App. | 1906
OPINION by
— Reversing.
Appellant, G. J. Johnson, and Mary Ml. Johnson were married in 1897. They lived together as man and wife until 1899, when Mrs. Johnson went to the State of Kansas, where she remained for a year, when she instituted a suit against appellant in a court of Kansas for divorce from the bonds of matrimony. An order seems to have been entered granting the divorce. The parties continued to live apart. There was some question as to the validity of the divorce granted by the Kansas court, and appellant instituted an action the Jessamine Circuit Court against appel-lee for a divorce from the bonds of matrimony on the ground of abandonment. A judgment of divorce was entered. In the judgment a recitation wa.s made as follows.: “Both plaintiff and defendant arc hereby restored to all property rights possessed by each of them before their marriage.” Subsequently this suit was instituted by appellee, Mary M. Johnson, against
Appellant testifies that the note was given to him by her for the money expended and labor performed, as stated. The wife denies this transaction (the testimony of each was incompetent—Buckel v. Smith’s Adm’r, 82 S. W., 235; 26 Ky. Law Rep., 494), and introduced some considerable testimony tending to show that appellant did not perform the labor nor expend the money on her property in Jessamine county, as claimed by him. We are of the opinion that he fails
The court sustained a demurrer to that paragraph of defendant’s answer in which he pleaded that she gave him the note to induce him not to interpose a defense to the action in Kansas. We are of the opinion that the court did not err in sustaining the demurrer. The facts, as detailed, did not constitute a good consideration. Such an agreement was against public policy. From the averments in the pleading the gift was not, as a matter of fact, an adjustment of property rights, but simply an inducement to forbear to interpose a defense to the action for divorce, which, he states, would have prevented her from obtaining it.
It is urged by counsel for appellant that, if the transaction is against public policy, then the law will leave the parties where they were found; that equity will not relieve either party from such a transaction. The facts averred do not make a case for the application of that principle of equity. It was simply a void contract. If, at the time the contract was made, the appellee was entitled to recover the note or the amount of it, her cause of action was not destroyed by reason of that agreement. It being void, it left the parties with rights as fixed by law.
As we have said, it is insisted that, under the judgment of divorce in the Jessamine Circuit Court, it simply restored to the parties the property rights possessed by each of them before their marriage, and that the plaintiff is not entitled to recover the note or the amount of it. The language of the judgment does not conform to the requirements of section 425, Civil Code Prac. That section reads as follows: “Every
Section 2127, Ky Stat, 1903, reads as follows: “Marriage shall give to the husband, during the life of the wife, no estate or interest in the wife’s property, real or personal, owned at the time or acquired after the marriage. During the existence of the marriage relation the wife shall hold and own all.her estate to her separate and exclusive use, and free from the debts, liabilities, or control of her husband. No part of a married woman’s estate shall be subjected to the payment or satisfaction of any liability,
Judgment affirmed.