Niles v. Niles

• Decision Date: 12 April 1911
• Citation: 143 Ky. 94
• Parties: Niles v. Niles.
• Court: Kentucky Court of Appeals

143 Ky. 94

Niles v. Niles.

Court of Appeals of Kentucky.

Decided April 12, 1911.

Appeal from Clark Circuit Court.

COLE S. MOFFETT for appellant.

J. M. STEVENSON for appellee.

OPINION OF THE COURT BY JUDGE SETTLE.

This action was brought by appellant in the court below to obtain a decree for the sale of a house and lot in the City of Winchester, of which he and appellee are the joint owners.

It was, in substance, alleged in the petition that appellant and appellee are husband and wife; that the lot in question, which is fully described in the petition, was conveyed to them jointly by a certain deed filed as an exhibit, and that they are in the joint possession of the property, each owning an undivided half thereof; that appellee, without fault on appellant's part, abandoned him August 1, 1910, and has since lived apart from him; that she refused to consent to a sale or other disposition of the house and lot or to join as a plaintiff in the action to procure a sale under a decree of the court, for which reason she was made a defendant therein.

The petition contains the further averments that the lot is 14½ feet in width and 170 feet in depth and cannot be divided; and that the dwelling house and other improvements thereon were erected wholly with appellant's money and at the cost to him of $425.00. The prayer of the petition asked a reference to a commissioner to ascertain and report the value of the improvements on the lot, and for a decree of sale of the property and division of the proceeds according to the equitable rights of the parties.

Appellee filed a demurrer to the petition which the circuit court sustained, and appellant refusing to plead further the petition was dismissed. Appellant complains of the judgment manifesting these rulings and has appealed.

The record does not give the grounds upon which the court below thus disposed of the case. We have not been favored with a brief from appellee's counsel, but that of counsel for appellant advises us that the demurrer was sustained upon the theory that the law of this State will not permit an action by the husband against the wife or the wife against the husband, for the sale of their joint property.

We cannot concur in the conclusion reached by that court. Kentucky Statutes, sections 2127-2148 inclusive, removes from the wife all disabilities of coverture imposed by the common law in the matter of contracting with other persons, the husband included, subject to the restrictions specified in the statute, and empowers her to sue and be sued as a single person; and she may sue the husband, or be sued by him as she would sue or be sued by any other person.

In Coleman v. Coleman, 142 Ky. 136, (Advance Sheets, February 16, 1911) we had before us the question whether the wife could sue and recover of the husband the amount of certain notes upon which he was indebted to her, the collection and her right to sue for which he was resisting on the ground that they were husband and wife when he became indebted to her upon the notes. In rejecting the husband's contention we, in the opinion, said:

"The question presented for our consideration is, did the fact that appellee and appellant were husband and wife at the time the first note was executed, and when she became the owner of the other three notes by assignment from the administrator of her father's estate, render invalid the several obligations? In our opinion the question...