Miller v. Sanders

JUDGE DuRELLE delivered the opinion op the court. The appellee brought suit against the appellants, who are husband and wife, upon a note and mortgage executed [537] since the act of March 15, 1894, took effect, fixing the property rights of husband and wife. The note was executed by the husband alone, and the mortgage, executed by both husband and wife, was upon a lot of land stated in the petition to be the property of the wife. Appellants filed an answer and counterclaim stating that the money, to secure the payment of which the mortgage was executed, was borrowed for the sole benefit of the husband, was paid by plaintiff to him and applied by him to the payment of his own debt, that the wife received no part of the money and no benefit therefrom, and that these facts were known to plaintiff before the money was lent. The prayer was for a dismissal of the petition as to the wife, and for a surrender and cancellation of the mortgage. A general demurrer to the answerwas sustained,and,the defendants declining to plead further, a judgment and order of sale were entered in favor of appellee. The question for decision is whether, under the existing law, a married woman can bind her real estate by mortgage to secure the debt of her husband. Under the General Statutes, the separate estate of a married woman could not be mortgaged to secure the debt of her husband, for the reason that her separate estate continued in the proceeds of a sale or mortgage, and to permit her to mortgage it for the debt of another would defeat her estate in the proceeds. (General Statutes, chapter 52, article 4, section 17; Merchants & Mechanics Building & Loan Ass’n v. Jarvis, 92 Ky., 566; Hirschman v. Brashears, 79 Ky., 258; McGill v. Mercantile Trust Co., 81 Ky., 129.) * By the act of May 16,1893, article 3, section 34, it was provided that upon a sale of the wife’s land or chattels real “the proceeds shall be her separate estate.” This provision, in effect, prohibited a mortgage of a wife’s general es538 fate to secure the debt of another, for the proceeds of such a mortgage could not be her separate estate. From this it is argued that, as the present statute provides that “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” (Kentucky Statutes, section 2127), therefore all the estate of a married woman is transformed by the statute into separate estate, with all the limitations imposed by the former law with respect to alienation. But the intent and policy of the new statute seems to be much broader than this construction. Section 2127 provides, immediately following the provisions quoted above: “No part of a married woman’s estate shall be subjected to the payment or satisfaction of any liability, upon a contract made after marriage to answer for the debt, default or misdoing of another, including her husband, unless such estate shall have been set apart for that purpose by deed of mortgage or other conveyance; but her estate shall be liable for her debts and responsibilities contracted or incurred before marriage, and for such contracted after marriage, except as in this act provided.” The setting apart provided for in this section clearly refers to a setting apart by the wife by the execution of a deed of mortgage or' other conveyance, and the latter part of the section distinctly provides that “her estate shall be liable * * * for such (debts and responsibilities) contracted after marriage, except as in this act provided,” that is to say, except the classes of contracts prohibited by sections 2127 and 2128. This conclusion is strengthened by the language of section 2128. “A married woman may take, acquire and hold property, real and personal, by gift, devise or descent, or by pur [539] chase, and she may, in her own name, as if she were unmarried, sell and dispose of her personal property. She may malee 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. * * *” In our opinion a married woman may set apart her real property by deed of mortgage to secure the debt of her husband. Judgment affirmed.