196 Ky. 701 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
Seme thirty years ago appellant, W. A. Lewis, and appellee, Sarah J. Lewis, were married iu the state of
It is the contention of counsel for appellee, Sarah J. Lewis, that inasmuch as the title to the tract of 365 acres was put in issue, evidence taken and heard, the judgment in favor of Sarah J. Lewis was a final determination- in her favor, and this action is res judicata on the question determined in the first action. Counsel overlooks the fact that in the first action only a limited
Said section of the statutes provides: “Upon final judgment of divorce from the bonds of matrimony the parties shall be restored such property, not disposed of at the commencement of the action, as either obtained from or through the other before or during the marriage and in consideration thereof.” Construing these sections we have held that where a divorce from bed and board only is 'granted no order for the restoration of property obtained by reason of the marriage relation can rightfully be ox-dered. In discussing this question in the case of Hoffman v. Hoffman, 190 Ky. 17, we said: “As part of the decree the chancellor adjudged that the parties restore to each other all the property which either may have obtained, -directly or indirectly, from the other during the marriage and in consideration or by reason thereof. This was error for the reason that the divorce was merely from bed and board and it is only in case of absolute divorce that such an order or restoration is authorized 'by the .statutes and Code.” Ratliff v. Ratliff, 193 Ky. 708; Lewis v. Lewis, 194 Ky. 821.
It therefore appears that the chancellor who tried ' the case in 1915 and granted a limited divorce, did not have jurisdiction to enter an order for the restoration of property between the litigants. While the court had jurisdiction of the parties and of the subject matter it would not in a case where a limited divor'ce was.granted order one spouse to restore to the other property obtained by reason of or in consequence of the marriage relation, for this power is statutory only. It follows, therefore, that the question of who owned the tract of 365 acres -claimed by Mrs. Sarah J. Lewis was not before the court in such a way as to give the count
At a later date and after five years from the commencement of the limited divorce action by the wife, the husband brought ;a .s-uit -against her for absolute divorce on the ground of fiv-e years ’ separation. The wife made no defense whatever to the cause and he was granted an absolute divorce from the wife. After the rendition of this judgment the husband instituted this action against the wife for the recovery of the tract of 365 acres of land which he says he purchased with his own means and caused to be conveyed to her by reason of and in consideration of their marriage relation and for no other consideration. In the new action the wife answered and said she bought and paid for the tract of land in question, and issue being joined and proof taken, both the wife and husband testified. The wife was asked:
“Q. Who did you buy it from (the land) ? A. A. M. Harvey. Q. Is he a relative of yours A. Yes, sir, he is an uncle of mine. Q. Who paid the purchase money on it? A. It was paid out of -both of our work; I stayed in the store and he went -out part of the time. Q. II-ow many years ago did you and Mr. Lewis buy that land? A. It has been about eleven or twelve years ago. Q. Who was the deed made to ? A. Made to me. . . .
Cross-examined: “Q. Did you have any property when you married Mr. Lewis? A. Yes, sir; I didn’t have much, but I had some property. Q. What? A. Some little things my father gave me. I had -a cow, chickens, beds and quilts. That is all the property I had at-the time I married. I had some feather beds, pillows and quilts. . . . Q. Did you ever work for wages or get anything, for your work at any time? A. I worked in the store but did not get any wages. I suppose my work was worth something, when I was attending to two little children and stayed, in the store, too; it looks like it ought to be worth something. Q. Did you work as one of the family and help Mr. Lewis
The wife further says she had no interest in the store whatever except as the wife of her husband and that he did not contract or agree to pay her for her services in the store.
On the other hand, the husband very emphatically says he bought the land and paid for it with his .own money and that the wife had no interest whatever in the land. The title bond which was executed when the trade was first made shows the husband as the sole grantee of the land and that he had paid at that time, March 22, 1905, $800.00 cash in hand, leaving a balance between $800.00 and $1,150.00 the ‘total price, yet unpaid. The title bond further shows that $200.00 was to be paid on the first day of the next July, and $150.00 to be paid ou the first day of May, 1906, and a lien retained upon the land to secure the purchase money. It further recites that W. A. Lewis, the husband, “has this day executed and delivered to the said Harvey his two promissory notes as above mentioned, and to secure 'the prompt payment of said notes when due the said Lewis has s-old and mortgaged all timber on said land except the poplar, and when the last note is paid the said Harvey agrees to make to the said Lewis a general warranty deed.” This bond is signed by E. W. Harvey, the vendor. It therefore plainly appears that the wife had'no interest whatever in the land except as the spouse of her hus
At common law the husband and wife are under obligation to .each other to perform certain duties. The husband, to bring home the bacon, so to speak, and to furnish a home, while on the wife devolved the duty to keep said home in a habitable condition. Following this it has been held that an -agreement by the husband to pay his wife for performing the ordinary household duties was not only without consideration but against public policy. The rule was somewhat different with regard to service of a different nature, not domestic. It was not the duty of the wife, unless .she desired to do so, to perform labor for the husband outside of her regular household duties, but if -she did so she was not -entitled to recover their value -of her husband. There is no implied obligation on the part of the husband to pay the wife for such services as she renders outside of the ordinary household duties. 13 R. C. L., pp. 1089-90; 21 Cyc., pp. 1276-77.
Although Mrs. Lewis may have performed great services in the store of her husband, without a contract for remuneration she was not entitled to recover of him any part of the profits or other compensation, for the store belonged to the husband and her assistance in the store was as a member of the family without pay or expectation of reward save to aid the husband in making a living for the family, including their eleven children.
For the reasons indicated the judgment must be and is reversed for proceedings consistent with this opinion.
Judgment reversed.