Daniel v. Robinson , 57 Ky. 301 ( 1857 )

Chief Justice

Wheat delivered, the opinion of the court.

On the 25th day of December, 1854, Charles? W. Daniel and Matilda A. Daniel, his wife, executed to Aaron Abbot their due bill of that date, for $700. On the 8th day of January, 1855, Abbot assigned the due bill to Robinson by written assignment on the instrument. Robinson filed his petition in equity in the circuit court, against Daniel and wife, the infant child of Matilda A. Daniel, and T. Fi Hazlerigg, trustee to- said Matilda and: her infant son, Jesse' Daniel, praying for the sale of said Matilda’s separate estate in a tract of 300 acres of land; and several slaves described in a deed from Jesse Daniel, the father of said M atilda, in satisfaction of the due bill: above referred to.

The trustee and Mrs. Daniel resisted the-claim, by denying the right of the court to subject the separate' estate of Mrs. Daniel to the payment of the debt: sued for. The infant defendant, by guardian ad litem, answered the petition; his answer is-in the common form. The court below rendered a judgment against Charles W. Daniel for the debt, and then-transferred the action to the equity docket, and after an execution, was issued? against Charles W. Daniel; on which the sheriff returned “no- property found,” proceeded and rendered a judgment subjecting, the separate estate of said Matilda? in the tract of land and slaves conveyed by the deed from her father to a trustee for her sole and separate use during, her life, &a. The court, by its judgment, first ordered: her estate in the slaves to?be subjected by hiring.the slaves out for one year, and retaining control over the hire in order to secure the interest of the infant. From that judgment Daniel and wife have appealed to this court.

Before the adoption of the Revised Statutes thiscourtheld that the separate estate of a married woman might be subjected to her debts upon a case properly made out, by a proceeding in, a court of equity.

Since the Rev-Statutes took effect a married woman, having separate estate, cannot sell or encumberit,tho’ created before the adoption of the Rev. Statutes,, except by an order of a court of equity, and in that case only for the purpose of exchange or reinvestment for the same use. (Ren.Statutes, title Husband and Wife, section17, page 395.)

The forty-seventh chapter of the Revised Statutes, title ■Husband and Wife, page 395, section 17, it is believed has changed the law on this subject. That section is as follows; “If real or personal estate be hereafter ‘ conveyed or devised for the separate use of a married ‘■woman, or for that of an unmarried woman, to the ‘ exclusion of any husband she may thereafter have, •* she shall not alienate such estate with or without ‘ ■the consent of any husband she may have; but may do so, when it is a gift, by the consent of the donor ‘ or his personal representative. Such estates, here- ‘ tofore created, shall not be sold or encumbered but by or- ‘ der of a court of equity, and only for the purpose of ‘ exchange and reinvestment, for the same use as that of the ‘ original conveyance or devise; and the court shall see ‘ that the exchange or reinvestment is properly * made.” The deed conveying the separate estate for the use of Mrs. Daniel bears date the 6th day of March, 4847'. Since the Revised Statutes went into effect a married woman, having a separate estate, cannot sell or encumber it, (if such estate was created before the first day of July, 1852,) but by an order of a court of equity, and only then for the purpose of exchange or reinvestment. It would be a violation of the section referred to if a married woman could, by the creation of debts, encumber or have her separate estate sold. To have such estate sold to pay her debts, by the judgment of a court, would enable her to do, by indirection, that which the statute expressly forbids. Such estate can only be sold under an order of -a oourt of equity for the purpose of exchange or reinvestment, for the same use as that of the original conveyance or devise.

This section fetters the powers of married women to alienate their separate estates acquired before it took effect, and may have the effect of limiting their expenditures to an outlay of the profits as they accrue. Such a restriction may be considered severe in some cases, but from the words of the statute no room is left to doubt that such was the intention of the legislature, and it is our duty to say -that such is the law.

It results, from what we have said, that the judgment of the court below is erroneous; wherefore said judgement is reversed, so far as it seeks to subject the separáte estate of Matilda A. Daniel to the payment of the debt secured by the note exhibited, and the cause ds remanded with directions to dismiss the petition as to her and her infant son, with costs against Robinson.