78 Ky. 257 | Ky. Ct. App. | 1880
delivered the opinion of the court.
The deed of trust was made upon the express condition ■that, in the event of Mrs. Owsley’s refusal to permit the custody, care, and possession of the children to remain with her husband, the deed should becqme void. Her promise to allow the children to so remain was not only the condition upon which the deed was to become void, but seems to have been the sole consideration for its execution. It may be true that she could not bind herself by her promise not to disturb
Instead of taking her obligation to allow the children to •remain with him, and making the settlement in consideration of that promise, he chose to make it upon condition that she would allow him to keep the children, and left her free to act as she might see proper; and'she having, as is alleged, violated the condition, we are unable to perceive any legal reason why the husband’s assignee may not recover the money from the trustee, unless there are some equitable grounds of defense which do not now appear in the record.
This is unlike Orr v. Orr (8 Bush, 156). That was an absolute conveyance without condition or restriction, and it was sought to avoid the deed on the ground that it was made in consideration of certain promises which had been violated, and the court held that it could not be avoided on that ground. But there is nothing in that case, or any other known to the court, which intimates that a husband may not lawfully insert in a deed of settlement a condition not unlaw- ■ ful in itself, and insist upon it when the condition has been ■violated.
Although the right of the husband may not have been assignable, the transfer vested the appellant with an equity, .and the husband being a party, there is no reason why the action may not be maintained by the assignee.
Judgment reversed, and cause remanded, with directions «to overrule the demurrer.
