Carter v. Carter

65 Ky. 288, 2 Bush 288, 1867 Ky. LEXIS 77

• Court: Court of Appeals of Kentucky
• Decided: October 3, 1867
• Status: Published

Opinion

JUDGE ROBERTSON

delivered the opinion of the court.

Section 1 of article 2, chapter 47, of Revised Statutes, conceding to the husband the use of his wife’s land, with power to lease it for three years and to receive the rent, does not apply to land held by a trustee for the “ sole and separate use” of the wife.

The object of such a conveyance, as in this case, was to preserve the use to the wife from the control of her husband, or the interference of his creditors; and no legislative enactment could frustrate that conservative purpose or pervert the use to the husband’s control. There ®an be no doubt, therefore, that the statute just referred to does not constructively apply to such a case as this.

The husband in this case neither rented nor had power to lease the land, nor right to claim the profits. But the trustee, or the wife, with his consent, had the exclusive right to lease and appropriate the proceeds. She having leased to her son, the tobacco he raised on the land was his own, and was not subject to the execution against his father. The instruction given by the circuit court to the contrary was therefore erroneous, and must have controlled the verdict in favor of the execution creditor.

Wherefore, the judgment is reversed, and the cause remanded for a new trial.