Complainant sold to defendant S. E. Hyder, a married woman, wife of defendant S. W. Hyder, on July 17, 1892, a lot in the town of Johnson City, for which she agreed to pay $400.
The husband and wife answered the bill -and admitted the purchase, the price, the payments, and the balance due, but relied upon the coverture of the wife in bar of any recovery. ■ They filed their answer as a cross bill and set up in it that the contract of purchase was made by the wife, but that the husband’s money was used in making the payments and the deed taken to the wife without the knowledge or consent of the husband, and that the vendor actively instigated the wife to keep the entire matter a secret from the husband. The prayer of the cross bill was that complainant be required to refund to the husband the amount paid him by the wife, and that a lien be declared on the lot and that it be sold to satisfy and repay said amount.
This cross bill was answered by complainant, admitting that he knew the purchaser to be a married woman, but denying the other allegations. Proof was taken, and, on the hearing, the Chancellor re
The cause has been heard by the Court of Chancery Appeals, and that Court reversed the decree of the Chancellor and gave complainant the relief asked for by him in his original bill, and denied defendants any relief under their cross bill, and they have appealed to this Court.
In the Court of Chancery Appeals the cause was made to turn upon the question whether the wife, S. E. Ilyder, had a separate estate when she bought the lot in controversy, and that Court was of opinion that she did have such separate estate. It reports the facts bearing on this question to be, that the wife accumulated the money which she paid on the lot from things which she sold about the house and farm, such as pigs, eggs, chickens, fruit, etc. The husband states that he knew his wife had money which she received from that source, but did not know what she did with it; that she did not account to him for such money, but used it herself; that she bought cattle, hogs, and horses sometimes, with his consent, and paid her money, and had done so for several years; and that she had some money of her own all the time. He further stated, in answer to a question, that the property sold by her belonged to him and her jointly as husband and
The Court of Chancery Appeals thought these facts brought the case clearly within the findings and rule laid down in Carpenter v. Franklin, 5 Pickle, 143, and that the husband had, by his course of dealing with his wife, allowed her to accumulate this fund as a separate estate, and, hence, he would not be entitled to recover back the purchase money which had been paid, and that, the contract having-been executed so far as the payments had been made, and by delivery of the deed to the wife, the complainant had a right to recover the balance due, and have the lot sold to pay it, as well as the interest and cost and an attorney’s fee of ten percent. provided for in the face of the note.
The opinion of the Court of Chancery Appeals directs ‘‘ that the decree of the Chancellor be reversed, and a decree entered for the amount due on said purchase money note, with interest and attorneys’ fees and costs, to be enforced by a sale of the lot, but there will be no personal decree against the husband and wife, except a decree against the husband and his
The decree drawn on this opinion, among other things, directs that complainant recover the amount of his note sued on, principal, interest, and ten per cent, attorneys’ fees, to wit: the sum of $172.55, and the costs of the cause incident to this decree in this Court and the Court below, and that, unless defendant, S. E. Ilyder, pay this decree in a certain time, the lot shall be sold, etc.
So far as complainant’s right to collect the balance of purchase money, and to sell the lot therefor, is involved under the original bill, it is immaterial whether the money paid complainant was the separate estate of the wife or not, or, indeed, whether she had any separate estate, as she did not, in the contract with complainant, bind any separate estate, or undertake to do. so, and any separate estate outside of the lot itself could only be bound by an express agreement to that effect (Federlicht v. Glass, 13 Lea, 481; Jordan v. Keeble, 1 Pick., 412; Theus v. Dugger, 9 Pick., 41); and the lot could be sold for the unpaid purchase money, whether that already paid was separate or general estate, if it was money that belonged to the wife. Jackson v. Rutledge, 3 Lea, 626; Cheatham v. Thornton, 11 Lea, 295; Browning v. Browning, Ib., 110; Federlicht v. Glass, 13 Lea, 481.
If, however, this money paid by complainant actually belonged to the husband, and not to the wife,
From the intimate and confidential relations existing between husband and wife, and because of their daily intercourse and transactions with each other, it is difficult, in many cases, to determine whether property under their control is the separate estate of the wife or her general estate, which, if personalty, would belong to the husband, or the husband’s property left in her custody for convenience or for prudential reasons.
In the case of Carpenter v. Franklin, 5 Pic e, 144, the husband was. a railroad engineer, and necessarily absent from home much of his time. He turned over to his wife, each month, one-half of his wages, to be tised by her for her hoxisehold and personal expenses, with an agreement that whatever she was enabled, by economy, to save from this allowance, after paying such expenses, she should be permitted to retain and' claim as her own. She also kept boarders and did sewing, and was allowed to retain the money thus earned as her own. She loaned out what she thus accumulated in her own name. There was in that case an express agreement between the husband and wife, clearly shown, that the money saved by the wife out of that handed to
In the case at bar there is no evidence of any direct agreement between the husband and -wife that the money and property in her hands, derived from the sale of domestic products, should be her own as separate and distinct from her husband’s ownership, and if such character is impressed upon it, it can only be done by implication from the facts as found by the Court of Chancery Appeals. The direct question as to whether it was intended to be, and was, treated as a separate estate or the wife’s own property, was not put to either, husband or wife by
The cross bill proceeds upon the idea that the money paid belonged to the husband, and was paid out by the wife on this lot without his consent, and that the fact of its payment was kept a secret from him by the collusive arrangement between his wife and complainant, and that he disaffirmed the agreement so soon as it came to his knowledge. To sustain this contention, it must appear that the money paid was that of the husband, and not of the wife.
The Court of Chancery Appeals is of opinion that, from the facts found by them, a separate estate in the wife was created by implication, inasmuch as the husband had permitted his wife to accumulate this fund and to use it in buying and sell