Willis v. Birdsel , 1868 Ky. LEXIS 392 ( 1868 )

Opinion oe the Oourt by

Judge Williams :

Mrs. Jarvis having conveyed the legal title to the bouse and lot, adjudged to be sold, to appellant, and the claim of appellees F. A. & O. A. Nourse being for unpaid purchase price due from Mrs. Jarvis which appellant undertook to pay as part of the consideration. of her purchase, and as these appellees were seeking to enforce their lien, it was not essential to have before the court either the personal representative or heirs at law of Mrs. Jarvis, and we perceive no error as to their judgment.

It is evident that though Mrs. Jarvis and Mrs. M. S. Willis, the appellant, were the co-partners of Bryant in the drug business conducted under the style of J. H. Bryant & Oo., yet as the business was controlled by the husbands of these two ladies, and no publication being made to the world who were the real partners, the creditors supposed the firm consisted of Bryant and Mr. Willis.

It is made also to appear that when Bryant & Co. dissolved, the debt to the Birdsels for $1,000 was then due from Bryant & Co., and it was agreed between O. E. Jarvis and E. C. Willis that the latter should pay this debt and also the debt for $150 to the Nourses, and the consideration recited in the deed from Jarvis and wife to Mrs. Willis is $1,150 — the precise amount of the principal of these debts, and Mrs. Willis concedes that her understanding was that she was to pay the $150 outstanding unpaid purchase price to Nourses. E. O. Willis was certainly insolvent and probably O. E. Jarvis was in the same condition, for he seems to have signed the deed to Mrs. Willis and caused his wife to do so, at Mr. Willis’ request, without seeing that any lien was retained for the unpaid consideration, and made it to Mrs. Willis when he says all the previous transactions had been in the name of Willis alone, and Mrs. Willis’ name was brought in for the first time when he and his wife signed the deed.

Mrs. Willis shows that she really did not know what the consideration for the deed was, nor what the contract between her husband and O. E. Jarvis was, only so far as he communicated them to her, and he seems not to have been very communicative, explicit or accurate as to these. Her account of the consideration paid, that is, the $500 originally put into the drug store, is not corroborated by the deed or the parol evidence, and is evidently the result of incorrect information or misunderstanding on her part, and as it may be fairly presumed that the family had to be supported mainly from the drug store, it is quite improbable that any profits had accrued to her, especially that her capital had doubled in less than a year, when the firm could not or had not paid its outstanding liability for stock.

It is palpable that for all the uses of the creditors of the firm of Bryant & Co. tbe busbauds of tbe two feme covert partners must be beld liable, and tbat tbis bouse and lot must be i egarded as tbe property of her insolvent husband, and sbe bolding as bis trustee in derogation- of tbe rights of tbe creditors, greatly strengthened by tbe moral fact tbat tbis was also her debt, although it may not have existed in precisely tbat shape, tbat would render her legally liable or subject her general estate.

Lindsey & Moss, for appellant. Rodman & Bradleys, for appellees.

Tbis view of tbe subject renders needless any investigation of tbe mortgage executed by O. F. Jarvis, of tbis bouse and lot, to tbe Birdsels to secure their debt, but which was unacknowledged by him, and .unsigned by bis wife, tbe legal title being in her, when tbe deed to Mrs. Willis was made, though Mr. Willis was informed when be purchased tbe bouse and lot tbat it was so mortgaged, and be then undertook to pay tbe mortgage debt.

Seeing no error in tbe judgment, it is affirmed.