Fetter, Etc. v. Wilson, Etc.
| Decision Date | 23 June 1851 |
| Citation | 51 Ky. 90 |
| Court | Kentucky Court of Appeals |
| Parties | Fetter, etc. <I>vs.</I> Wilson, etc. |
APPEAL FROM THE LOUISVILLE CHANCERY COURT.
THESE bills were filed by various complainants to enforce alleged liens for materials furnished and work done upon a house in the city of Louisville, on the corner of Gray and Brook streets, alleged to be the property of Mrs. Catharine Fetter, wife of George G. Fetter, both of whom were made defendants. Their demurrers to the bills were overruled, and no answer being presented, a decree nisi was rendered settling the claims and requiring payment, which not being made, a sale was decreed of the house and lot being known by the Nos. 144, 145 and 146, for their satisfaction.
This decree is objected to on the ground: 1. That there is no allegation of the bills which authorizes a decree for the sale of Mrs. Fetter's interest in the lot; and, 2. That if her interest could be sold, there is no ground laid for selling the three lots; and, 3. That George G. Fetter has no vendible interest.
It is not alleged nor in any manner shown that Mrs. Gray has a separate estate in the lot, or that she has or had any power over it, which the law does not allow to all femes covert, with respect to their lands. The most specific description given of her interest is in the statement that "the house referred to was erected on a lot of land in this city, which was conveyed by Mary O. Gray to Catharine A. M. Fetter, by deed dated 19th January, 1848, known on the plan of Gray's enlargement, by the Nos. 144, 145 and 146, which has a front on Gray street of one hundred and five feet, and extends back two hundred feet to an alley." The deed not being exhibited we must assume from this statement, that the lot was conveyed to Mrs. Gray in the ordinary form.
The acts of the Legislature of 1831, and 1834 (3 Stat. Law, 409-411), under which these liens are claimed are understood as intending and operating to give the lien only upon the interest of the employer in the lot and premises on which the house is built or repaired, or at most upon the house and the interest of the employer in the lot and premises. And before Mrs. Fetter's interest in the lot can be brought under the lien, it must be shown that she was the employer of those who worked on the house or furnished the materials; but by the common law, she being a feme covert, was incapable of contracting for herself, and certainly could not bind her lands except by special acts done in a particular manner. Could she then in the legal sense become the employer of others to erect a building on her land or to furnish materials for it? She might unquestionably be the employer in fact for such a purpose. But as it is equally certain that she could not by such a transaction render herself legally liable to pay the price, it is the opinion of the Court that she could not be the employer in view of the statute, so as to subject her interest in the land, unless she had a separate estate in it with a power of charging it. Understanding these statutes as making no change in the rights or powers of married women, they could not have intended to recognize or enforce any act of a wife which was wholly void by the pre-existing law, and as by that law she...
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