Bergen v. Forsythe , 56 Ky. 551 ( 1856 )

Judge Stites

delivered the opinion of the court:

This action was brought by Forsythe against Bergen and wife, upon their joint obligation for the'rent of a dwelling house, alledged to have been used and occupid by them and their family for several months next before the suit. The petition charges that the house was needed by the family, and was rented by the wife, upon her credit, for herself and family. It is likewise alledged that the husband was, at the date of the contract, and when the suit was begun, insolvent, and that the only property liable to the payment of the debt, known to the plaintiff, was a house and lot belonging to the wife, held by a conveyance from Stokes, which was asked to be subjected for that purpose.

The answer admits the execution of the obligation by the husband and wife, and the use and occupation of the house thereunder; but denies that the estate of the wife is subject — because, as they say, the use of the hou.se is not a necessary, within the moaning of the Revised Statutes, for which the wife can, by writing or otherwise, make- her estate liable.

1. Property conveyed to a feme covert,by an ordinary deed of conveyance, not to be held as separate estate, is not liable for the debts of the husband contracted either before or after the marriage.— (Rev. Stat, chap. 47, art. 2, sec. 388.) 2. But is liable for the debts of the wife contracted before marriage, “and for such contracted after marriage, on account of necessaries for herself and family, her husband included, as shall be evidenced by writing signed by herself and husband.” The term necessaries should have a liberal construction.

Upon hearing, the chancellor below awarded a judgment in favor of the plaintiff, against the husband in personarn, and subjected the property of the wife to ils satisfaction ; and from that judgment they have appealed.

The property of the wife thus subjected is not “separate estate,” subject to alienation or charge at her will, independent of that of her husband ; but was, as appears from the deed, acquired by conveyance in the ordinary manner, and is held by her as other real estate, in which the husband has certain well defined interests growing out of his marital relations.

By the Revised Statutes, {chapter 47, article 2, section 388,) as well as by the act of 1845-46, {Session Acts, 1845-46,) such property is not liable to the debts of the husband contracted before or after marriage, but is liable for those of the wife incurred or contracted before marriage, and “for such contracted after marriage on account of necessaries for herself, or any member of her family, her husband included, as shall be evidenced by writing signed by herself and her husband.”

The manifest object of the laws mentioned was to protect the property of the wife against the improvidence of the husband, and to invest her, as far as practicable, with control over her property, in order to insure to herself and family, including her husband, such maintenance and support as might be derived from the use and enjoyment of the property acquired by her before or after marriage. To carry out this benign purpose of the legislature, such interpretation should be given to the words used as will secure to the wife and her family the enjoyment of the estate, and at the same time protect it against the wasteful improvidence of the husband.

3. A house rented for the residence of the husband & wife, and family,suited to their circumstances, is a necessary, for which the property of the wife may be made subject.

The word “necessaries,” as used in the act, should not be limited or restricted in its meaning. It. was not thus intended, but was designed to embrace such things, considering the social position of t.he family, its style of living, and the estate of the wife, as the family, including the husband, ought properly to have.

It is said that the word “necessaries,” in relation to an infant, is not used in a strict sense, and that there is, and can be, no positive rule to determine what are, .and what are not, necessaries; but that questions of this kind are mixed questions of law and fact, to be determined by the peculiar circumstances of each case. The law determines whether articles of a certain kind, or certain subjects of expenditure, are necessaries; and whether the things had, and the subjects of expenditure, come within the classes are questions of fact. (Parsons on Contracts,, 244 ) So may we say in regard to the word as here used in relation to a married woman and her family.' If the articles had, or subjects of expenditure, are needful to the comfort of the family, or of any member thereof, comported wilh the position and estate of the wife, and are had and enjoyed at her instance and request; and the debt incurred therefor is evidenced by writing signed by herself and husband, then her property may be subjected toit.s payment.

The evidence in this case shows that the house rented was suitable for the family, and necessary for its comfort and shelter, and also that it was procured at the instance of the wife, and by her solicitation and request. The obligation was executed by herself and husband, as required by the statute, and we do not perceive bow the chancellor could poperly have avoided subjecting the property to the payment of the debt.

Judgment affirmed.