Walker v. Walker

• Citation: 284 S.W. 1042,215 Ky. 154
• Parties: WALKER v. WALKER.
• Decision Date: 15 June 1926
• Court: Court of Appeals of Kentucky

284 S.W. 1042

215 Ky. 154

WALKER v. WALKER.

Court of Appeals of Kentucky.

June 15, 1926

Appeal from Circuit Court, McCracken County.

Action in forcible detainer by Altie Walker against E. H. Walker. Judgment for plaintiff on trial before the county judge was affirmed by the circuit court, and defendant appeals. Affirmed.

M. E Gilbert, of Paducah, for appellant.

Ben S Adams, of Paducah, for appellee.

THOMAS C.J.

Some five years or more before the trial of this case (in May 1925), in the court below, the parties were married. The appellee and plaintiff below, Altie Walker, is the wife, and the appellant and defendant below, E. H. Walker, is the husband. Each of them had two living children at the time by a previous marriage and plaintiff owned a farm a short distance from the city of Paducah, containing 135 acres, upon which she resided and which was equipped with teams and tools for agricultural purposes, but if the defendant owned any property at the time of the marriage it is not disclosed by the record. They lived together on plaintiff's farm until some time in 1922, or 1923 (the record not clearly disclosing), when defendant obtained a job with the Illinois Central Railroad Company at Centralia, Ill., and he went away and lived in Centralia from that time until about March 1 1924, but his two daughters remained on the McCracken county farm during school, and when it was not in session they went to Centralia and lived with their father. It is indisputably shown in this case that at least plaintiff treated his moving to Centralia as a separation, and there is but little if anything in the record to show that defendant regarded it differently. At any rate, after defendant's return about March 1, 1924, the parties entered into a contract whereby he was to cultivate the farm for the year 1924, and plaintiff was to furnish the teams and tools, and they were to each share equally the crop produced, and that contract was carried out. In December of that year plaintiff notified defendant that she did not want to continue the relations of landlord and tenant created by the 1924 contract, and that she wanted full possession and control of her farm and for him to vacate it. He declined to do so, but continued to occupy the farm and to reside in the dwelling house thereon until this forcible detainer proceeding was instituted against him in the McCracken quarterly court by his wife in the early part of the year 1925. In the meantime plaintiff with her two children had left the farm and moved to the city of Paducah and took up her residence with her father. The relations between the parties seem to have been, to say the least of it, unpleasant from the beginning, but whether it was such as to furnish grounds for divorce by either one against the other is not developed by the meager amount of testimony on the subject found in the record. At any rate, the parties were separated and living apart at the time of the institution of the action, and, upon its trial before the county judge, defendant was found guilty and judgment rendered against him accordingly. He traversed the findings of that court to the McCracken circuit court, and upon trial therein the same judgment was rendered, and from that judgment he prosecutes this appeal.

The principal as well as decisive question in the case is: Whether a wife may maintain this character of action against her husband under facts showing the contractual relationship of landlord and tenant, and when she is separated and living apart from him? In other words, whether under the specific facts of this case, may she maintain such an action against her husband? That she could neither maintain such an action or any other character of one against her husband at common law is thoroughly settled and is disputed by no one, and we will not incumber this opinion with a citation of any of the abundant authorities establishing that fact. The fundamental reason for that rule was, that at common law the husband acquired an absolute right by virtue of the marriage to an estate for his life and to the control, rents, and profits of his wife's general real estate and an absolute title to all of her personal property when brought into possession. A different rule existed, however, as to the wife's separate property, but we are not particularly concerned in this case in any of that ancient learning, and will not tax ourselves with a further discussion of it.

Our Legislature in 1894 enacted a statute commonly known as the "Weissinger Act," portions of which are sections 2127 and 2128 of our present statutes, in which all of the property of the wife was made her separate property and the common-law rights of the husband in and to it during the marriage relation was absolutely repealed, the first part of the first section, supra, saying:

"Marriage shall give to the husband, during the life of the wife, no estate or interest in the wife's property, real or personal, owned at the time or acquired after the marriage. During the existence of the marriage relation the wife shall hold and own all her estate to her separate and exclusive use, and free from the debts, liabilities or control of her husband."

The next section (2128) greatly enlarged the wife's right to contract with reference to her property that the immediately preceding section created as her separate property, and made her sui juris with reference to contracts concerning and relating to it and her right to sue and be sued with reference thereto, the language creating such alterations being:

"A married woman may take, acquire and hold property real and personal, by gift, devise or descent, or by purchase, and she may, in her own name, as if she were unmarried, sell and dispose of her personal property. She may make contracts and sue and be sued, as a single woman, except that she may not make any executory contract to sell or convey or mortgage her real estate, unless her husband join in such contract; but she shall have the power and right to rent out her real estate, and collect, receive and recover in her own name the rents thereof, and make contracts for the improvement thereof."

It will be observed that the statute confers the general power upon the wife to contract, sue, and be sued with reference to her statutory separate property, and in practically all jurisdictions where a similar statute has been enacted it is held that the language is broad enough to include such rights conferred on the wives as to transactions with their husbands; i. e., that they may contract with their husbands with reference to their separate property and sue him upon such contracts and upon causes concerning her properey, as will be seen from the text in 30 C.J. p. 671, par. 251, wherein it is said, inter alia:

"According to the weight of authority statutes conferring general contractual powers on married women enable them to contract with their husbands because such statutes destroy the common-law unity of husband and wife."

Further along in the text it is said:

"Under Married Women's Property Acts giving the wife contractual capacity with respect to her separate estate, she may contract with her husband in reference to such estate."

Many cases from a great number of courts are cited in the notes. We have so construed our statutes every time the question was presented since its enactment. One of the cases in which it was done is Coleman v. Coleman, 142 Ky. 36, 133 S.W. 1003, in which the opinion said:

"The present statute with respect to the contractual and property rights of the husband and wife, known as the Weissinger Act (Ky. Stats. §§ 2127-2148, inclusive), removes from the wife all the 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, none of which prevent her from becoming indebted to the husband or the husband to her; and she may sue and recover of the husband any debt he may have contracted to pay her, as she would any other debtor. Long v. Beard 20 Ky. Law Rep. 1036; Buckel, By et al. v. Smith 26 Ky. Law Rep. 491 [[494]; Noel v. Fitzpatrick, 124 Ky. 787 [100 S.W. 321, 30 Ky. Law Rep. 1011]; Eberhard v. Wahl, 124 Ky. 223 [98 S.W. 994, 30 Ky. Law Rep. 412]; Jones v. Louisville Tobacco Warehouse Co. 121 S.W. 633 ; McWethy's Adm'r v. McCright, 141 Ky. 816 .

Later cases so holding are Greenup v. U.S. Fidelity & Guaranty Co., 159 Ky. 647, on page 651, 167 S.W. 910, and Sandusky v. Sandusky, 166 Ky. 472, 179 S.W. 415. Those cases held that the wife may not only contract with her husband with reference to the matters that the statute empowers her to do, but that she may likewise sue him to enforce such contracts or to obtain whatever relief to which she may be entitled flowing from such contracts.

The text in 13 R.C.L. p. 1447, par. 496, enlarges thereon by showing that the wife under such statutes is given the right to sue her husband, not only upon his express contracts with her concerning her statutory separate property, but that she may also sue him upon any implied contract the same as any other individual, and likewise she may sue him upon any cause of action necessary for the protection of her property, and all as a necessary incident to the full enjoyment of her property; the text being in this language:

"Where by constitutional or statutory provision general capacity is conferred on a married woman to control her separate property, to contract and to sue, and her contract with her husband is upheld as legal, her right to sue him at law on such a contract or for the protection of her property is usually upheld by implication, as a necessary incident to the full enjoyment of her property." (Our itali

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