Brown v. Allen

• Decision Date: 01 July 1924
• Citation: 204 Ky. 76,263 S.W. 717
• Parties: BROWN v. ALLEN.
• Court: Kentucky Court of Appeals

263 S.W. 717

204 Ky. 76

BROWN v. ALLEN.

Court of Appeals of Kentucky.

July 1, 1924

Appeal from Circuit Court, Mercer County.

Action by Esther Belle Brown against W. E. Allen. Judgment for defendant, and plaintiff appeals. Affirmed.

Jas. H Polsgrove, of Frankfort, and E. H. Gaither, of Harrodsburg for appellant.

C. E Rankin, of Harrodsburg, for appellee.

SAMPSON C.J.

Appellant Esther Belle Brown, of Mercer county, in 1922 was the owner of a large tract of valuable farming land which she contracted to sell to appellee, W. E. Allen, at the price of $80 per acre, the purchaser to assume a lien indebtedness of $13,969.09 with interest then held by the Fayette National Bank, the balance to be paid to appellant in fixed amounts at designated times. The contract was reduced to writing and signed by both Esther Belle Brown and W. E. Allen on February 21, 1923. At the time of the making of the contract and for some time previous thereto and thereafter, William E. Brown was the husband of Esther Belle Brown, but they were not living together. He was asked to sign the contract for the sale of his wife's land, but declined to do so. Thereupon the parties entered into another written contract for the sale and purchase of the same land in which contract the original contract was referred to, it being recited that--

"Whereas for reasons known to all parties hereto the said first parties were unable to convey said property upon said date (February 21, 1923), now this contract, made and entered into this the 1st day of March, 1923, by and between Mrs. Esther Belle Brown and Clarence Julian, agent, parties of the first part, and Dr. W. E. Allen of Mercer county, Kentucky, party of the second part, witnesseth: That the parties of the first part reaffirming said contract filed herewith and made part of this contract the same as if copied at length herein, etc."

The writing then proceeds to incorporate part of the original contract. It shows that--

The first party, Esther Belle Brown, "shall convey said property to said second party by general warranty deed, which shall be a reasonable time from the date hereof, it being understood that if first parties are unable to convey said property to said second parties within a reasonable time which for the purpose of this contract shall not be more than twelve (12) months after date hereof, second party may treat this contract as a rental contract by paying to the first parties six per cent. (6%) interest on $28,946.60, the purchase price of the said property for the time he holds possession of said property, to first parties."

Soon after the last contract was made, appellant Esther Belle Brown sued her husband for divorce in order to enable herself to convey the property and to avoid the effect of sections 506 and 2128, Kentucky Statutes, which renders the contract of a married woman to sell her lands void unless her husband joins with her, or first conveys the property. The husband contested the right of the wife to divorce and the prayer of her petition was denied. She appealed to this court, but being unable to secure an advancement of her cause for early hearing, she abandoned the appeal and induced her husband to file a counterclaim in the divorce suit pending in the circuit court. This he did for the alleged consideration of $5,000, on January 19, 1924. The wife did not contest his right to divorce, and a divorce was granted him in accordance with the prayer of the counterclaim. Having relieved herself of the disabilities incident to coverture, Mrs. Esther Belle Brown tendered a deed to appellee Allen for the land, and when he refused to accept it she commenced this action in the Mercer circuit court against him for specific performance of the contract whereby she undertook to sell to him and he to purchase her farm, and prayed that he be adjudged to pay the purchase price in accordance with the terms of the contract to which we have referred.

Appellee Allen defended upon several grounds, but chiefly he insisted that at the time of the making of the contract which she sought to have enforced against him she was a married woman under statutory disabilities and her contract to sell the land to him was void because not joined in by her husband, William A. Brown, and being void as to her it was not binding on appellee Allen because it lacked mutuality, and therefore equity would not require it to be specifically performed. While not admitting that the contract was void, for the reasons above stated, appellant sought to hold appellee solely by reason of the fact she tendered a sufficient deed before March 1, 1924. In answer to this appellee Allen insists that the contract was void ab initio and could not therefore be ratified.

The inability of a married woman by...