Wright's Admr. v. Gillum , 1868 Ky. LEXIS 462 ( 1868 )

BY

:

It seems to tbis court that the circuit court did not err in dismissing the appellant’s petition as judgment creditor of the appellee David Gi]lum, to subject a tract of 30 acres of land, which had been conveyed to him by Elizabeth Bates, and afterwards conveyed by him to his co-appellee Mary Jane Gillum, his wife.

The husband resists the asserted equity by alleging that the land was bought, at his wife’s instance for a home for herself and six children, was paid for with her own separate means and ought to have been conveyed to her by Mrs. Bates.

The wife resists more emphatically on the same grounds, alleging that her 1. sband and herself had no other sans of buying the land than a small patrimony which she then expected soon to realize from her father’s estate, and which she received to her separate use about three years-after the land was bought at $100, paid by her husband with money borrowed from one Barres in anticipation of ber patrimonial fund. And tbat sbe afterwards, witb a portion of tbat fund wbicb never came to ber husband, paid to Barres tbe whole amount so loaned and its accruing interest of course; tbat Mrs. Bates conveyed tbe legal title to ber husband instead of herself through mistake, and tbat sbe paid Barres in consideration of ber husband’s conveyance _to herself. And tbe most essential of these allegations are sufficiently established by tbe testimony.

DeHaven, for appellant. Pryor & Chambers, for appellee.

Now although tbe conveyance by tbe husband to bis wife is technically invalid, yet tbe contract between them and ber payment of tbe consideration may be available to rebut tbe asserted equity of tbe appellant and sbe would at least be entitled to a lien on tbe land for tbe money sbe paid for it and that, from tbe testimony,, may be presumed equal to tbe present value of tbe land, an experimental sale of wbicb for reimbursing her would be not only inconvenient but oppressive in its cost and probably altogether unavailing to tbe appellant.

A decree for such a sale would therefore have been improvident., and a reversal by this court would be more so.

Wherefore, tbe judgment is affirmed.