Merchants' & Mechanics' Loan & Bldg. Ass'n v. Jarvis' Adm'x
| Decision Date | 09 February 1892 |
| Citation | 18 S.W. 454,92 Ky. 566 |
| Parties | Merchants' & Mechanics' Loan & Building Ass'n v. Jarvis' Adm'x. |
| Court | Kentucky Court of Appeals |
Appeal from chancery court, Campbell county.
"To be officially reported."
Action by the Merchants' & Mechanics' Loan & Building Association of Kentucky against Thomas O. Jarvis' administratrix. Judgment for defendant, and plaintiff appeals. Affirmed.
The appellee, Catharine E. Jarvis, and her now deceased husband gave a promissory note to the appellant for loaned money, and executed a mortgage upon a lot of land, which was the separate estate of the wife, to secure its payment. She has power, under the statute, to sell it,-her husband uniting with her in the conveyance, and also the trustee, if there be one; but her interest in the proceeds is the same as it was in the property. The power to mortgage for her own use and benefit, or to secure her own debt, is incidental to this power to sell; but, inasmuch as her separate estate continues in the proceeds, she cannot mortgage it for the debt of her husband, for if she could do so it would defeat her estate in the proceeds. Hirschman v. Brashears, 79 Ky. 259; Magill v. Trust Co., 81 Ky. 129. There is no brief on file for the appellee; but she asserts in her pleadings that it was the debt of her husband, she becoming merely his surety. The appellant contends, however, that the loan was to her. The evidence shows that the application for the money was made by the husband; that the order by the association for the loan was in his name; and that the check for the money was made out in the same way, and given to him. His name is first upon the note that was executed. The evidence is conflicting whether Mrs. Jarvis was or was not present when her husband received the check. The president of the appellant says she was, and she says she was not. It appears her husband kept the money and used it. At least, the contrary is not shown. Upon this state of case the chancellor held that the mortgage was not enforceable against her property.
It is urged that it was an original undertaking; that it was not a renewal of any pre-existing indebtedness; and that the loan was made and debt created, upon the part of the association upon the faith of her property that was mortgaged being liable for its payment. If all this be true,-and it doubtless is,-yet we fail to see that it follows it was the debt of the wife, and not the...
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