Heck v. Fisher

• Decision Date: 27 November 1880
• Citation: 78 Ky. 643,1 Ky.L.Rptr. 336,2 Ky.L.Rptr. 69
• Parties: Heck v. Fisher, & c.
• Court: Kentucky Court of Appeals

78 Ky. 643

1 Ky.L.Rptr. 336, 2 Ky.L.Rptr. 69

Heck v. Fisher, & c.

Court of Appeals of Kentucky.

November 27, 1880

1. The active participation of a married woman in the perpetration of a fraud may operate, by way of estoppel, to divest her of interest in real estate; and even where she is only a quiescent participant, she will not be allowed to derive any benefit from the fraud, if it can be prevented without divesting her of title.

2. Where the realty of a married woman has been improved by her husband, with the intent to defraud his creditors, the wife acquiescing therein such a part of the rents and profits as is proportionate to the increase in value of the property by reason of such improvements may be subjected to the payment of the husband's debts.

APPEAL FROM HENDERSON COMMON PLEAS COURT.

THOS E. WARD FOR APPELLANT.

1. A return of " no property" as to one of two defendants in an execution which has been replevied by the other, is a sufficient return upon which to institute an action. (Sec. 17, p. 684, Gen. Stat.)

2. The Henderson court of common pleas had jurisdiction to issue execution on a transcript from the quarterly court. (Subsec 14, sec. 723, Civil Code; sec. 7, p. 288, Gen. Stat.; Acts 1876, chap. 42, p. 5.)

3. The improvements made by the husband were not necessary to secure a home for him and his family, and were made to defraud his creditors; and the wife having consented thereto, her property thus improved should be subjected to the payment of her husband's debts. (Robinson v. Huffman, 15 B M., 82; Athey v. Knotts, 6 B. M., 29.)

4. Coverture cannot be made a cloak for fraud. (Rusk v Fenton, 14 Bush, 490.)

H. F. TURNER FOR APPELLEES.

1. A married woman cannot encumber or dispose of her real estate, except in the mode pointed out by statute. (11 Bush, 251.)

2. Although the wife's land has been improved with her husband's money, it cannot be subjected to the payment of his debts. (12 B. M., 90.)

3. The tendency of modern adjudications is towards a greater protection of the rights of married women. (6 Bush, 684.)

4. The wife's land cannot be subjected because of a fraud committed by her husband, and having no power to oppose his wishes, it is immaterial whether or not she consented to the improvement. (6 Dana, 229.)

OPINION

HINES JUDGE:

Appellant having a judgment against appellee, J. O. Fisher, and a return of no property, instituted this suit in equity to subject a house and lot, the legal title to which is in the appellee S. E. Fisher, wife of appellee J. O. Fisher.

It is in substance alleged in the petition that S. E. Fisher held the legal title to a lot of the value of five hundred dollars, which was paid for by her husband, J. O. Fisher, before the creation of the debt sued on, but that, subsequent to the creation of the debt, the husband, at his own expense, caused a house to be erected on the lot, which enhanced the value of the lot from five hundred dollars to thirty-five hundred dollars. The petition then alleges that " said house was not built by said Fisher as a house for himself and family, and was not necessary for that purpose, and has not been used for that purpose and is not now being so used, but was built by him as an investment, and with the fraudulent intent to cheat, hinder, and delay his creditors, and to put his property out of their reach and where they could not get it; and the defendant, S. E. Fisher, well knew, when said improvement was being made, that it was with such intent on the part of her husband that said property was built."

The prayer of the petition is in the alternative, first, for a sale of the house and lot to pay the debt; or, second, that it may be rented out and the rents applied for that purpose.

A demurrer was sustained to this petition. The only question presented is, can the property be subjected, on this state of fact, to the payment of the husband's debt?

It is insisted for appellees that this cannot be done, first, because of the wife's inability to contract, and, second, because it would be to divest the wife of her title to the property in violation of the statute which provides the manner in which a feme covert may divest herself of title to realty.

It is upon the ground that a feme covert cannot bind herself by contract, except in the manner prescribed by statute, that the case of Felter, & c., v. Wilson, &amp c. (12 B. M., 90), relied upon by appellees, is expressly based. That was an attempt to subject the land of the wife to the satisfaction of a mechanic's lien, when the work was done under contract with the husband, and not evidenced by writing signed by husband and wife, as required by the act of 1846. There is no analogy between that case and...