Magill, &C., v. Mercantile Trust Co., &C.

• Decision Date: 01 May 1883
• Citation: 81 Ky. 129
• Parties: Magill, &c., v. Mercantile Trust Co., &c.
• Court: Kentucky Court of Appeals

81 Ky. 129

Magill, &c., v. Mercantile Trust Co., &c.

Court of Appeals of Kentucky.

May 1, 1883.

APPEAL FROM LOUISVILLE CHANCERY COURT.

WALTER EVANS FOR APPELLANT.

RODMAN & BROWN FOR APPELLEES.

JUDGE HINES DELIVERED THE OPINION OF THE COURT.

Appellant, T. W. Magill, borrowed of appellees three thousand five hundred dollars, for the security of which he and his wife executed a mortgage on the undivided half interest of the wife in certain real estate. Subsequently, the amount of the loan was extended to five thousand dollars, the old mortgage canceled, and a new one executed by Magill and wife on the entire property, the wife having acquired title to the other half. The terms of the bond, executed to the Trust Company, were to the effect that a default in paying interest authorized the company to treat the principal of the debt as due, and to proceed to its collection. There was an alleged failure to pay interest, and a suit by the company to recover the debt. On issue formed, and proof heard, the court entered a judgment dismissing the petition "without prejudice." In the last action, the court, on the maturity of the debt, subjected the property to its payment, allowing certain deductions on account of usury.

The first question made is, did Mrs. Magill acquire a separate estate under the conveyance to her of the last undivided half of the property referred to?

The materiality of this consists in the fact that it is claimed by appellant that the debt for which the mortgage was executed was the debt of the husband, and the property being the separate estate of the wife, could not be bound in this way. The deed is to Magill and wife by name, with this provision in the body of the deed: We hereby "convey to Mrs. Hattie E. Magill, one of the parties of the second part, for her sole use and benefit, and her heirs and assigns forever," the land described. In order to create a separate estate at common law, or under the statute, the language of the deed must clearly manifest an intention to place the property beyond the use and control of the husband. No specific words are necessary to the creation of the estate. We are of the opinion that the intention to create such an estate is manifest from the language used in this deed, and therefore Mrs. Magill holds this property as separate estate.

As held in Hirschman v. Brashear, &c., 79 Ky., 258, the wife cannot, under the statute, bind her separate estate by mortgage for the debt of her husband, but her...