Garvey v. Moore

• Decision Date: 22 January 1891
• Citation: 15 S.W. 136
• Parties: GARVEY et al. v. MOORE.
• Court: Kentucky Court of Appeals

15 S.W. 136

GARVEY et al. v. MOORE.

Court of Appeals of Kentucky.

January 22, 1891

Appeal from circuit court, Fleming county.

E. W Hines, Cochran & Son, and James P. Harbeson, for appellants.

John P McCartney, Wm. J. Hendrick, and G. A. Cassidy, for appellees.

PRYOR J.

The appellants sought to subject to the payment of their debt a tract of land containing 68 acres that M. D. Moore, the debtor, had conveyed to his wife. The debt existed prior to the conveyance, and, therefore, if in fraud of the rights of creditors, whether known by the wife or not, the land should be sold to pay the appellants' debt. The only question arises as to the consideration. The attachment was discharged on the ground that the wife was a creditor. The defense relied on to the effect that the husband obtained money and property of the wife, by reason of the marital relation, is not available. This property became the husband's on the marriage, or by reason of it, and there is no evidence showing a post-nuptial or an ante-nuptial contract between them in reference to the estate of the wife. It does appear that the wife relinquished dower in a valuable tract of land mortgaged to a creditor of the husband, and that this was done in consideration that he would account to her for it, or secure her a homestead. She was deprived of this contingent right, and also of the use of the homestead in common with her husband, by reason of this mortgage, and to that extent the wife should be secured. If the land conveyed or to which she relinquished dower was of the value of eight or ten thousand dollars at the date of her relinquishment, then her contingent right of dower would be worth only three or four hundred dollars, while the land conveyed to her by her husband is worth two thousand dollars. The homestead of the husband and wife is gone by reason of the conveyance, and the wife should have either the value of her contingent right of dower or the right to a homestead in the 68 acres during her life, the creditor having the right to sell the land subject to the life-estate of the wife. The wife may elect to take the value of her contingent right of dower, or $1,000 in value of the 68 acres of land as long as she lives. She was 60 years of age when she signed the mortgage, and her husband about the same age. Ascertaining the value of the land mortgaged the chancellor can easily arrive at the value of the contingent right of dower...