Bennett v. Bennett

• Court: Kentucky Court of Appeals
• Writing for the Court: HAZELRIGG, J.
• Citation: Bennett v. Bennett, 95 Ky. 545, 26 S.W. 392 (Ky. Ct. App. 1894)
• Decision Date: 10 May 1894
• Parties: BENNETT v. BENNETT.

26 S.W. 392

95 Ky. 545

BENNETT v. BENNETT.

Court of Appeals of Kentucky.

May 10, 1894

Appeal from chancery court, Campbell county.

"To be officially reported."

Action by William H. Bennett against Maria L. Bennett to enforce an order made in a judgment for divorce in an action between the same parties, restoring to each the property obtained by them respectively from the other in consideration of the marriage. From a judgment for plaintiff, defendant appeals. Reversed.

John S Ducker, for appellant.

E. W Hawkins, for appellee.

HAZELRIGG J.

In September, 1890, the appellee obtained a judgment of divorce from his wife on the ground of separation without cohabitation for five years next before the application therefor. In his petition he had sought to cancel a deed for a house and lot in Newport, made by him to his wife, through a trustee, in 1866 upon the ground that it had been made solely in consideration or by reason of marriage. This the wife, who was in possession of the property by her tenants, resisted, and in her answer alleged that the property had been bought with her own means. On August 25, 1890, the cause was continued, we presume for preparation on the issues presented in the pleadings; but on the same day, "by consent," the order of continuance was set aside, and, on motion of plaintiff, the cause was "discontinued as to property." In a few days thereafter the case was submitted, and a judgment rendered annulling the marriage but appended to it, in the face of the plaintiff's discontinuance of any claim as to property, was this order: "And all property obtained by these parties during marriage, and directly or indirectly in consideration of the marriage, of which disposition was not made when this action was begun, is respectively restored to them." Thereupon the husband, who is the appellee, brought the present action for the enforcement of the order of restoration, alleging that his late wife refused to surrender the house and lot directed to be restored to him, as he contends, in the judgment of September, 1890. The wife urges a number of reasons why the deed should not be set aside, or, if set aside, why her receipt of the rents ought not to be disturbed. It is insisted, however, by the appellee that the judgment of restoration is conclusive of any question of title between the parties, and determines finally that the title has passed back to the original owner, leaving nothing for the court to do but to enforce the order restoring the title. The section of the Code under which this contention is asserted is as follows: "Every judgment for a divorce from the bond of matrimony shall contain an order restoring any property, not disposed of at the commencement of the action, which either party may have obtained, directly or indirectly, from or through the other, during marriage, in consideration or by reason thereof; and any property so obtained, without valuable consideration, shall be deemed to have been obtained by reason of marriage. The proceedings to enforce this order may be by petition of either party, specifying the property which the other has failed to restore; and the court may hear and determine...