Smith v. Smith

• Court: Kentucky Court of Appeals
• Writing for the Court: WHITE, J.
• Citation: Smith v. Smith, 56 S. W. 968 (Ky. Ct. App. 1900)
• Decision Date: 25 May 1900
• Parties: SMITH v. SMITH. [1]

56 S.W. 968

SMITH v. SMITH. ^[1]

Court of Appeals of Kentucky.

May 25, 1900

Appeal from circuit court, Muhlenberg county.

"Not to be officially reported."

Action by J. J. Smith against Eliza A. Smith, praying for the restoration of property conveyed by plaintiff to defendant in consideration of marriage. Judgment for plaintiff, and defendant appeals. Affirmed.

Wm. H Yost and John Allison, for appellant.

Estill D. Guffy, for appellee.

WHITE J.

This action was instituted by appellee, J. J. Smith, seeking a restoration of property conveyed to appellant during the marital relations of appellee and appellant, and in consideration of such relationship, at the instance and procurement of appellee. The property is specifically described, and it is alleged that appellant had theretofore instituted an action and obtained a decree of divorce. Appellant answered, admitting the decree of divorce to her and pleading that judgment in bar of a recovery here. Appellant also denied that appellee had procured the deeds made to her, or had paid the consideration therefor. Upon trial of these issues from the proof and the record, the court adjudged that the decree and judgment of divorce was not a bar to this action, and on the facts in issue adjudged that the lands in question were paid for by appellee, and the deeds made at his instance and by his procurement. The court therefore, adjudged a restitution of the property, and a cancellation of the deeds to appellant. From that judgment this appeal is prosecuted.

In the judgment of divorce, the court, after dissolving the bonds of matrimony and awarding the custody of the children, says "It is further adjudged by the court that the injunction granted in this action to plaintiff at commencement of the action be, and hereby is, perpetuated, and the defendant John J. Smith, is perpetually enjoined from in any way interfering with the plaintiff and her infant children in the possession and use of the following property: [Property here described, including the lands;] also from cutting, selling, removing of any timber from said land, and from committing any waste thereon. It is further adjudged by the court that any property not disposed of at commencement of this action, which either party may have obtained, either directly or indirectly, from or through the other during the marriage, in consideration or by reason thereof, be restored to the other; any of the...