Addie B. Stewart v. E. Barrow

• Decision Date: 02 November 1870
• Citation: Addie B. Stewart v. E. Barrow, 70 Ky. 368, 7 Bush 368 (Ky. Ct. App. 1870)
• Parties: Addie B. Stewart v. E. Barrow.
• Court: Kentucky Court of Appeals

70 Ky. 368

Addie B. Stewart v. E. Barrow.

Court of Appeals of Kentucky.

November 2, 1870.

APPEAL FROM LOUISVILLE CHANCERY COURT.

SANDERS, For Appellant.

STIRMAN, For Appellee.

JUDGE PETERS DELIVERED THE OPINION OF THE COURT.

This suit in equity was brought by appellee, assignee of Hays, against appellants to enforce the payment of two notes — one for six hundred and fifty dollars, and the other for thirteen hundred dollars — by a foreclosure of two mortgages, in which it is alleged Mrs. Stewart joined her husband to pledge her real estate for the payment of said notes.

The summons having been served on the defendants the requisite time, and both of them having failed to answer, the petition was taken for confessed; but the chancellor, being of opinion that under the will of her mother, through which appellant, Mrs. Stewart, derived her title to the property, and which the plaintiff made an exhibit of, she had no power to sell or incumber it, being restrained by the will from making such disposition of the property for a specified time, adjudged that as the husband had the power under the statute law to lease the wife's real estate for a period of three years, that the mortgages might be regarded as such disposition, and the property under his judgment has been leased for the term of three years for a sum sufficient to pay the demands of appellee. After judgment Mrs. Stewart filed her petition to open the same, and therewith presented her defense to the action in an answer; but by some irregularity in the sitting of the court the defense was not made available, and the case is now brought to this court questioning the correctness of the judgment rendered.

Section 1, article 2, chapter 47, 2 Revised Statutes, 8, provides that marriage shall give to the husband during the life of the wife no estate or interest in her real estate, chattels real, or slaves owned at the time or acquired by her after marriage, except the use thereof, with power to rent the real estate for not more than three years at a time, and hire the slaves in like manner for not more than one year, and receive the rent and hire. And subsection 1 of said section expressly provides that the wife's real estate, slaves, rent, and hire shall not be liable for any debt or responsibility of the husband contracted or incurred before or after marriage; but shall be liable for her debts and responsibilities, contracted or incurred before or after marriage, on account of necessaries for...