135 Ky. 824 | Ky. Ct. App. | 1909
Lead Opinion
Opinion of the Court bt
Reversing.
Appellant, Maggie N. Jones, brought this suit against the Louisville Tobacco Warehouse Company to recover the proceeds of certain tobacco which she alleged she had shipped to it in March, 1900,- and it had sold as her agent. The warehouse company claimed the right to hold the money as the property of John W. Jones, the husband of Maggie N. Jones, on account of a debt which he owed to it contracted about the year 189'6. The circuit court sustained a de
■ The facts admitted by the demurrer are these: Maggie N. Jones and her mother, Minerva Noel, owned a farm in Franklin county, and on March 1, 1905, they entered into the following written contract by1 which they rented the farm to J. W. Jones: “For and in consideration of the sum of nine hundred dollars ($900.00) to be paid on or before the first day of March, 1906, we, Mrs. Minerva Noel and Maggie N. Jones of the first part have this day rented to J. W. Jones of the 2nd part of our farm known as the S. M. Noel farm, for the term of one year. Parties of the first part reserve for their own use the tenement house at front gate, the two tenement houses at the mouth of branch, the pump house and right of way to said tenement house and pump house right of way over and for repairing of pipe line by the distillery company and also the slop privilege at the new cattle sheds. First parties also reserve a lien on all crops grown on said farm until moneys for rent are paid. First parties reserve all right for seeding purposes in the fall of. the year. First parties are not to repair any fencing on said farm. Possession of farm to be given 1st of March, 1905, given up March 1st, 1906. . Second party is- allowed to work lands on farm any way he wants to, or to sublet any lands that he wants to, or to plow any lands, and is to do all the repairing on barns, fencing, etc., at second parties own expense. Minerva Noel, Maggie N. Jones, J. W. Jones.” On March 1, 1906, Jones owed $550 of the rent, and Maggie-N. Jones then paid to Mrs.-Noel her part of the rent, and thus became entitled to all the rent as between her and her husband. He had
In Eberhardt v. Wahl, 124 Ky. 223, 98 S. W. 994, 30 Ky. Law Rep. 412, Mrs. Eberhardt and her husband, Jacob, executed two notes to a bank for $250 for money borrowed by him. To secure the first note he pledged 10 shares of stock which he owned and to secure the second note she pledged 10 shares of stock which she owned. She paid to the bank $250 of her own money, intending to pay the note which was secured by the pledge of her own stock. DBut the bank applied it to the payment of the first note which was secured by the pledge of her husband’s stock. She applied to the bank to correct the mistake, and was told by the bank' officers that all that was necessary was that her husband should deliver to her the 10 shares of stock which had been released to secure her in the $250 which she had paid, and protect her against liability on the second note. This was accordingly done, but the agreement was not recorded. In this condition of things another creditor attached the husband’s 10 shares of stock. It was held by this court that the arrangement between the husband and wife was void, and that the wife acquired no lien on the husband’s 10 shares of
Under the statute, a gift, transfer, or assignment of personal property between husband and wife is invalid as to third persons unless in writing, acknowledged and recorded as chattel mortgages are required to be acknowledged and recorded. The surrender of the tobacco by Jones to his wife was a transfer of personal property, and, not being reduced to writing or recorded, was invalid. After that arrangement was made, the parties stood where they were before it was made. It took from the wife no right she then had and it added nothing to her rights. Before that surrender was made, she had a lien on the tobacco for her rent under the statute, and this superior lien she continued to have after the arrangement was made. The rent was not due until March 1, 19U6. The tobacco was sold during that month. When the tobacco was sold, her demand against the warehouse eompany accrued, and, it then refusing to pay her the
The written lease provided that the owner of the land should have a lien on the crop for the rent, but, as this was not recorded, the special contract was invalid so far as - it stipulated for a lien on the crop in favor of the wife. It was valid, however, as to Mrs. Noel. She had a lien by virtue of the contract on the crop of tobacco as against the warehouse company whose debt was created in the year 1896. It is alleged in the petition that Mrs. J ones when she paid Mrs. Noel her part of the rent became subrogated to her rights. But no facts are alleged showing a right of subrogation. One who pays a debt for another voluntarily is not ordinarily subrogated to the rights of the creditor. Subrogation -is only allowed where there is some equitable reason for it. The allegation that the plaintiff
We therefore conclude that the court erred in sustaining the defendant’s demurrer to the plaintiff’s reply. On the return of the case the parties will be allowed to amend their pleadings if they desire to do so.
Judgment reversed, and cause remanded for further proceedings consistent herewith.
Rehearing
Extended Opinion and Response to Petition for Rehearing.
It appears that Mrs. Jones shipped the tobacco to appellee as her factor. Section 4768, Ky. St. (Russell’s St. § 2530); J. S. Phelps & Co. v. Barkley, 40 S. W. 384. Appellee, as factor, could not deny the title of its principal. When it accepted her consignment of tobacco as her property, it became estopped thereafter to deny to appellant’s prejudice that the title to the tobacco was hers.
. Appellee argues that the lien is given by statute upon the property — not its proceeds. But the statute de'als alone with the status, independent; of a contract enlarging or restricting it. It is still competent for the parties to contract with respect to property of the tenant or leased premises. While, as between husband and wife, such contracts must be in writing, to affect “third persons,” by the expression it is meant that others may deal with the former owner on the faith of his ostensible ownership, unaffected by se
The transaction between the husband and wife was not meretricious. The transaction itself was valid. The only thing lacking was the publicity necessary to protect “third persons” who might deal with it. The possession of the wife was of itself notice that she had some sort of claim upon the property. If her possession was obtained in fact by reason of the transfer of the tobacco in'satisfaction of her lien, it preserved her lien, independent of the statute, as against all the husband’s creditors who had notice of the facts; and her possession was of itself notice of the facts. The relation of landlord and tenant between the husband and wife gave her, under the statute, a lien,1 regardless of the contract between them, which is attacked by the appellee because not recorded. She never relinquished that lien. Her consignment of the tobacco to appellee for sale was in line to preserve her dominant equity; and, when appellee accepted the consignment on her account, it undertook as her agent to sell the tobacco on her account alone, and to remit to her the proceeds of the sale, less its commissions and expense in the matter. The
Petition overruled.