113 Ky. 507 | Ky. Ct. App. | 1902
Lead Opinion
Opinion op tiie court ry
Reversing.
Iii March, 1874, the appellant, Mary G. Morrison, purchased from M. M. Mays a tract containing about 80 acres of land, near Owensboro, in consideration of $8,400, of which $4,000 was paid in cash, and for the balance two notes were executed for $1,200 each by Mary G. Morrison and her husband, payable in one and two years, respectively, from date. Tin* .land was conveyed to Mary G. Morrison as separate estate. The notes were not paid*at maturity, and in 1.877 aggregated $3,000. In order to pay them, the appellant and her husband borrowed $3,000 from the Owensboro Savings Bank, securing the loan by a mortgage on i lie land. The loan was carried by the bank until May, 1888, when they demanded payment. To meet this demand, appellant applied to the Mutual1 Life Insurance Company of, Kentucky for a loan of the same amount. The company refused- to make the loan unless Mrs. Morrison would transfer the title to the property to her husband;
Counsel for appellant contends that the transfer of the title of the land in controversy in response to the demand of the insurance company in 1888 was without consideration except to the extent of the $3,000 borrowed to pay off the existing lien for purchase money against the land, as she was a married woman, and held the propertj7 as her separate estate; and that the creditors of her husband are not entitled to subject the property to the payment of their debts for which‘she was not legally bound; whilst appellee contends that the money originally paid for the land was' Airs. Alorrison’s general estate, and that, as she herself converted it into separate estate, the provision of the general statute securing to her the same interest in the proceeds as in the estate conveyed does not apply. This content ion is based upon the case of Chrismas v. Hahn (10 R., 377); 9 P. W., 279, and that, having voluntarily transferred the title of the property to her husband, it is subject to the demands of his creditors created after the conveyance to him. It is impossible for us to determine from the record whether the $1,000 originally paid by Airs. Alorrison was
The deed of Mrs. P. A. Miller, however, stands upon a different footing. The act of March 15, 1894, which is article 3, c. 66 of the Kentucky Statutes, abolished the distinction which previously existed" between the separate and general estate of married women, and in effect made all of her property separate; estate, and gave her the right to pledge the same for the debt, default, or misdoing of another, including her husband, if such estate shall have been set apart for that purpose by deed of mortgage or other conveyance. See section 2.127 of the» Kentucky Statutes. This provision of the statutes was considered by this court'in Miller a7. Sanders, 98 Ky., 538 (17 R., 1114) (33 S. W., 621), and it was there held that the Avife could hind her real estate by mortgage made to secure the debt of her husband; and this case has been subsequently followed in Lane v. Bank (14 R., 873) (21 S. W., 756, Tipton v. Bank (17 R., 960) 33 S. W., 205, and in New Farmers’ Bank’s Trustee v. Blythe, 21 Ky., Law Rep., 1033. It follows that the mortgage made to Mrs. P. A. Miller is an enforceable'obligation, and the real estate in controversy is properly subjected to her claim.
But, for reasons indicated, in so far as the judgment subjected it to the payment of the claim of the general creditors of her husband it is reversed, and cause remanded for proceedings consistent herewith.
Rehearing
Response by Judge Hobson to petition for rehearing:
It is earnestly maintained in the petition for rehearing that the act of 1894, not being retrospective, does not
Petition overruled.