193 Ky. 708 | Ky. Ct. App. | 1922
.Opinion op the Court by
Reversing the judgment on the original appeal and affirming it on the cross appeal; and affirming the judgment in the second appeal.
The first appeal above is from a judgment of the Pike circuit court in an action filed therein by appellee, Joel Ratliffe, against his wife, the appellant, Harriett Ratliff, in which plaintiff sought a divorce from her and tlie restoration of certain described property to which she held title and which it was alleged in the petition that she had obtained from plaintiff “during the marriage in consideration thereof, ’ ’ which restoring relief is provided by section 2120 of the statutes and section 425 of the Civil Code of Practice. The latter section also contains this provision, “And any property so obtained, without valuable consideration, shall be deemed to have been obtained by reason of marriage,” thereby impliedly saying that if the property was obtained for a valuable consideration it would not be deemed to have been obtained by reason of marriage and would not be subject to restoration. The ground alleged for the divorce was wrongful
The second appeal above is from a judgment sustaining a demurrer to and dismissing the petition filed by defendant in the first action to obtain a new trial thereof under the provisions of section 518 of the Civil Code. The two appeals have been heard together in this court and will be disposed of in one opinion and they will be determined in the order named.
Without reciting the evidence, we deem it only necessary to say that we do not regard it sufficient to sustain the judgment in granting a divorce to the husband. In the first place it fails to show any abandonment in fact for the requisite time, and what actually occurred was not because defendant left plaintiff but because he took up his abode elsewhere, leaving her in the occupancy of their residence, but which act on his part he claims was brought about by her excessive temper and abuse of him, which we think is unfounded in fact. Since, however, we
The parties were married in February, 1883, and at that time the husband had but little,' if any, personal property, but he owned a one-half undivided interest jointly with his father in a tract of land upon a part of which is now situated the mining town of Hellier. It was remotely situated at the time and cost the owners only $600.00. After the marriage the wife continued to teach school, as she had done before, and taught four schools for which she received $125.00 each, and it clearly appears from the testimony that the total sum of $500.00 was collected and kept by the husband, and with $300.00 of it he purchased from his father the latter’s half interest in the farm, taking the deed to himself. The husband appears to be reasonably industrious, but not to the extent of the wife, who was exceptionally so; she managed the farm as well as the household in which were kept on numerous occasions boarders whom she provided and cared for, while the husband was either actually or ostensibly away working at getting out timber for others, or in other engagements requiring his absence from home. During that time the wife cultivated and looked after the garden and performed other duties more appropriately belonging to the husband, including that of running and operating a grist mill located on the place which was run with water power. The testimony shows that defendant was rather strong minded and perhaps to some extent stubborn, but this produced no more than occasional family jars, termed by some of the witnesses “family fracases,” and as said by some of them “it was tit for tat” between the two upon such occasions, but nothing is proven against the appellant measuring up to any of the statutory grounds for a divorce.
Plaintiff contends that after the death of their only child, Ralph Ratliff, defendant developed a more quarrelsome disposition towards him and finally became unbearable, forcing him, in the exercise of what.he claims to be his legal rights, to abandon their home, and in this way he insists that his actual abandonment was in law attributable to his wife and produced through her fault alone. The testimony furnishes no ground for any such
Eventually a railroad was built across the land, and $1,625.00 was paid for the right of way. Considerable sums were obtained for timber sold therefrom and portions of it were sold to other parties and in these various ways quite a sum of money was realized. It appears from'the evidence that the husband, from the time he bought the half interest of his father in the land and paid for it with his wife’s money, acknowledged the latter’s equity and regarded her as a half owner thereof. Carrying out this idea he gave her from time to time portions of the money received as hereinbefore stated, and he had deposited in a bank to his credit something more than $6,500.00, and on February 2, 1914, he gave to his wife .a check for $3,000.00, which she deposited to her credit.
At the time of the filing of this suit there was left of the original tract of land, known in this record as the “home place,” only twenty-five acres, upon which were located the residence and some twenty or more small shacks and some larger frame bnildingsj one of which was used as a moving picture show and another one as a billiard hall, and others for different business purposes, the total rental from which was about $100.00 per month; all of it was worth, according to some of the testimony, and the finding of the court, about $30,000.00.
On March 23, 1917, the husband, in consideration of “one dollar and other valuable considerations,” conveyed to the wife a one-half undivided interest in the remaining twenty-five acres of the “home place.” A number of other transactions, which are disclosed by more or less obscure statements of the witnesses, appear to have been made by the parties jointly and separately in which they each realized additional sum's, to those hereinbefore mentioned, but the evidence is not clear as to them, nor is there filed any papers or documents evidencing their true nature; one of them is, that during the time the wife acquired stock in a bank of the par value' of $1,000.00, but which is now, according to the proof, worth $2,500.00. The wife claims that she sold a piece of land to which she had title to one Gribs on and obtained the money with which she bought that stock, while the husband denies her statements. Their testimony upon such matters was not objected to as incompetent and for that reason we may, as the court did below, consider it.
Under this state of the proof the court allowed each party to retain what personal property they had, and adjudged the wife to be the owner of only one-third of the “home place” instead of one-half, as she contends; and that she was the owner of only one-half of the Vanover place instead of three-fourths, as she contends. Her counsel also insist that the judgment is erroneous in not allowing her alimony out of .the portion adjudged to the husband. Prom the condition of the record, as above outlined, we are clearly of the opinion that the court was in error in not adjudging to defendant a one-half interest in the “home place” and in not adjudging t'o her a three-fourths interest in the Vanover place. According to the sections of the statute and Code, supra, there can be no restora
We have seen that one-half of the “home place” was paid for with money earned by the wife in teaching’ school, which fact we think is clearly established by the testimony. A't that time, which was before the enactment of the statute in 1894, known as the Weisinger act (now sections 2127 and 2128 of the statutes), the husband was entitled to collect and appropriate to his own use the rents from his wife’s real estate, and to reduce to possession her entire personal property (if not held by her as her separate property), which, if done, converted the title thereto in himself, and it is, therefore, argued that when the plaintiff in this case collected and appropriated his wife’s salary for teaching school it became absolutely his and all subsequent income and profits which issued out of and were obtained from the tract of land in which it was invested likewdse'belong’ed absolutely to him, and that all of the sums that he subsequently gave to his wife, as well as the deed which he made to her for half of it, were each “in consideration or by reason” of the marriage, and should, therefore, be restored to him upon the granting of the divorce. Tim same argument is made with reference to the obtention of the title by the wife to the Lincoln county farm, three-fifths of which was paid for by the wife, but which (as contended) was with money furnished to her by the husband “in consideration or by reason ’ ’ of the marriage; and that the exchange of that farm for 'the Vanover place did not change the status of the title so as to deprive the husband of his right of restoration upon the obtention of his divorce. It is, therefore,' insisted that all of either of the two places which the wife was entitled to hold was an undivided one-fourth interest in the Vanover farm which she inherited from her deceased son, subject to the dower right of his wife.
Whether the position of plaintiff’s counsel would be true if the facts established an unconditional and absolute appropriation by the husband of the personal property of the wife with which one-half of their original
“Answering the first objection to the allowance of the claim now under consideration it may be stated that the law as stated by counsel with reference to the existence of the right of the husband, before the passage of the Weisinger act, to collect and appropriate the rents of the wife’s land, and that this right continued after the passage of that act as to land acquired by her before then is correct. - It does not follow, however, that the claim should be disallowed for that purpose because if was held in the cases of Bohannon v. Bohannon, 29 Ky. L. R. 143; Owsley v. Owsley, 25 Ky. L. R. 1194, and Gilliam v. Gilliam, 146 Ky. 15, that a husband might waive his marital rights in and to the property of his wife, and also waive his interest in the rents and proceeds thereof, and to thereby convert himself into a trustee for her and hold such property, which would otherwise (under his marital rights) be his, for the use and benefit of his wife, Those cases furthermore say that if the evidence is sufficient to 'show such waiver on the part of the husband, his estate, after his death, may be made to account to the wife for the money or property so held by the husband as her trustee.”
The cases referred to in the excerpt fully support the rule as do many others which might be cited. It is also thoroughly settled that even creditors of the husband who became such after the conveyance may not attack a transfer of his property to his wife if it was made in set-„ tlement of her equitable right growing out of the appropriation of her property by her husband, although he had the right without acknowledging such equity to absolutely appropriate it.
We are, therefore, constrained to hold that there was a valuable consideration for the wife’s title to the two
It is also urged by counsel for appellant that she was entitled to judgment against the husband for alimony in addition to the adjustments of the property rights as above indicated, but in as much as the judgment, with the-modifications herein ordered, gives to the wife- practically half of the combined property owned by both parties, we are inclined to hold that equity has been administered, which is all that is required or can be demanded in this character of case. Besides, it is not alto- - gether clear whether the wife is entitled to the bank stock mentioned under the principles hereinbefore discussed, and if not its retention by her would be sufficient alimony were we to place her right to its retention solely upon that ground. There is no hard and fast rule governing the amount of alimony to be adjudged the wife in cases where she is entitled to it, and where, as under the circumstances in this case, the demands of equity appear to • be satisfied, we do not feel that we should, go further- and ■take an additional sum from the portion of the property allotted to the husband and bestow it upon her.
Complaint is also made on the original appeal that the court required plaintiff to pay only one-half of the fee allowed to his wife’s attorney, which complaint we think is well founded. Section 900 of the statutes says: “In
On the cross appeal counsel for appellee insists that the court erred in giving to the appellant a greater interest in the property than she was entitled to. What we have said, however, disposes of this contention and we deem it unnecessary to reiterate our reasons for disagreeing therewith.
The petition in the second appeal sought a new trial in the original case because of alleged fraud of the husband in secreting some property which it is claimed was not considered by the court in disposing of the original case. The larger portion of that alleged discovered property was an interest in a restaurant in Hellier, but it appeared in the original case that appellant knew all about that, and no fact is alleged in her petition showing any effort on the part of the husband to secrete any of his property. Besides, if that property was brought into the' case we doubt if it would be sufficient to alter the original .judgment any more than we have above indicated. That petition referred to and made the proceedings in the original case a part of it, and considering' the allegations of the petition in connection with the record referred to, we are clearly of the opinion that there was a failure to
Wherefore the judgment on the original appeal is reversed with directions to modify it as herein indicated, but on the cross appeal it is affirmed; and the judgment in the second appeal is affirmed.