Cochran and Fulton v. Kerney and Wife
| Citation | 72 Ky. 199 |
| Parties | Cochran and Fulton v. Kerney and wife. |
| Decision Date | 12 December 1872 |
| Court | Kentucky Court of Appeals |
APPEAL FROM DAVIESS CIRCUIT COURT.
JAMES SPEED, For Appellants.
RAY & WALKER, For Appellees.
JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT.
W. H. Kerney and wife hold title to the eighteen-acre tract of land conveyed to them in 1848 by John Combe as tenants by entirety. Their estate is one and indivisible. By the common law the husband would have no power to alienate it so as to defeat or in any way affect the rights of the wife in case she should outlive him (Rogers v. Grider, 1 Dana, 242); but he could convey the entire estate during the coverture, and if he should survive the wife his conveyance would become as effective to pass the whole estate as if he had been sole seized in fee when he conveyed. (Washburn on Real Property, side page 425.)
The adoption of the act of February 23, 1846 (Acts 1845-6, p. 42), deprived creditors of a husband of the right to subject to the payment of their debts an estate of this character in such manner as to deprive him of the possession during the life of his wife, because she as well as he owns and holds a present vested interest in it, and to dispossess the husband for the benefit of his creditors would in effect be to apply the wife's present interest in the land to the payment of his debts. By the statute cited it was provided expressly that the lands of the wife should not be subject to the debts of the husband; and this court, in the case of Moore v. Moore (14 B. Mon. 208), held that since its passage the husband has no interest in the wife's land liable for his debts.
The conveyance to Kerney and wife was made subsequent to the enactment of this law, and Mrs. Kerney is entitled to its benefits. We conclude therefore that Kerney can not by any act of his prejudice Mrs. Kerney's right of survivorship, and that his creditors have no power to deprive her of the enjoyment of the land while it remains undetermined whether she or her husband will ultimately become the sole owner of the fee; but it by no means follows that the interest of the husband may not be sold by a court of equity, and the proceeds applied to the payment of the husband's debts, provided it be so done as neither to affect Mrs. Kerney's right of survivorship, nor her right to the enjoyment of the realty during her life, whether she survive her husband or not.
This court did not intimate in the opinion in the case of Rogers v....
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