Lindley v. Cross

Gregory, J.

Suit by the appellants against the appellees. The complaint is in two paragraphs. The first avers, that Susan Cross, being the owner in fee of lots 3 and 4 in Judd’s addition to the town of Elizabethtown, in Bartholomew county, undertook, with her liusbaud, Thomas, to erect and did erefet thereon, a new building, to wit, a dwelling bouse; that defendant Thomas, with the knowledge and consent of Susan, and as her agent therefor, purchased of the plaintiffs lumber for the building, which was furnished and delivered under the contract by the plaintiffs to the defendants, a bill of particulars of'which is set forth, amounting in the aggregate to $158.58; that the lumber was used in the building, and became a part thereof; that prior to the expiration of sixty days from the furnishing of the lumber and the completion of the building, the plaintiffs filed a notice in the recorder’s office of Bartholomew county, intending thereby to retain and hold a lien on the property ^for the payment of the lumber so furnished; that by mistake there was and is a misdescription in the notice, the property being described therein as lots “6 and 7,” instead of “3 and 4;” that Susan is still the owner of the property; that no third persons have acquired any rights that would in any way be affected by a correction of the mistake; and that this was the only'lumber ever furnished by the plaintiffs to the defendants. A copy of the notice is made a part of the complaint.

The second paragraph charges, that on, &c., the defendant Thomas Cross purchased from one Oliver Judd lots 3 and 4, in Judd’s addition to the town of Elizabethtown, in Bartholomew county, and paid a portion of the purchase-mon *108 ey therefor and gave his note for the residue, with one "W. W. Leek as surety thereon, which yet remains unpaid; that said Thomas, on &e., caused Judd to convey the property to Susan, the wife of said Thomas; that the conveyance was not recorded until the 80th of July, 1866; that after the purchase the defendant Thomas undertook to and did build on said lot a new dwelling house, and said defendant, on the 1st of June, 1866, employed plaintiffs to furnish lumber, as set forth in the bill of particulars filed with the complaint, amounting to $158.58; that the defendant Thomas, to induce the plaintiffs to furnish the lumber, represented to them that he was the owner of the lots; that at the time of the contract Judd had not made a deed to any one therefor, but said Thomas held the same by title-bond; that relying on the representation and believing said Thomas to be the owner thereof, the plaintiff's furnished the lumber under the contract from the date thereof to the 27th of July, 1866, which was used in the construction of the building; that Susan Cross know that the plaintiff's were furnishing the lumber and concealed from them the fact of her title; that the lumber was furnished with her approbation and under her encouragement; that the conveyance to Susan Cross was fraudulent and void; that said Thomas, being indebted to Judd for the residue of the purchase money, and seeking to defraud Leek, the surety, and, in case the claim could not be collected of Leek, to cheat and defraud Judd, and to cheat and defraud other creditors, and especially the plaintiff's, caused the conveyance to be executed to Susan Cross, his wife; that Thomas Cross is wholly and notoriously insolvent, having no property other than said real estate; that the conveyance to thtí wife was without any consideration whatever passing from her. This paragraph then charges the notice and mistake as set forth in the first.

The appellee Susan Cross filed her separate demurrers to each paragraph of the complaint. The appellee Thomas Cross also filed his separate demurrers to each paragraph of *109 the complaint. The demurrers were sustained, .and judgment was rendered against the appellants.

The act of May 31st, 1852, touching the marriage relation and liabilities incident thereto, provides, that “no lands of any married woman shall be liable for the debts qf her husband; but such lands and the profits therefrom shall be her separate property, as fully as if she was unmarried: Provided, That such wife shall have no power to incumber or convey such lands, except by deed, in which her husband shall join.” 1 G. & H. 374, sec. 5. The power of a married woman over her lands under this provision of the statute has been the subject of frequent investigation without coming to any very satisfactory conclusion on the subject. See Major v. Symmes, 19 Ind. 117 ; Cox’s Adm’r v. Wood, 20 Ind. 54 ; and Moore v. McMillen, 23 Ind. 78 .

In Kantrowitz v. Prather, 6 Am. Law Reg. (n. s.) 602, this court has granted a rehearing, after much consideration, and has decided the case otherwise at this term (p. 92, ante).

We are satisfied that this question must be solved by a construction of our own legislation on this subject.

The section cited has in it two inconsistent provisions: one, that such lands and the profits therefrom shall be the wife’s separate property as fully as if she was unmarried; and the other, that she shall have no power to incumber or convey except by deed, in which her husband shall join.

To give full force to the latter provision, the wife could do nothing with her lands except to occupy and cultivate them in person; she could make no lease; she could not contract to repair or improve them; and the first provision would amount to little or nothing.

The code provides, that “when a married woman is a party, her husband must be joined with her, except: First. When the action concerns her separate property, she may sue alone. Second. When the action is between herself and her husband, she may sue or be sued alone; but in no case shall she be required to sue or defend by guardian or next *110 friend, except she be under the age of twenty-one years.” 2 G-. & II. 41 sec. 8.

If a married woman can sue or be sued alone, in inspect to her separate property, it seems to bo fair to allow her the power of contracting for such aid as she may require in conducting the litigation. It seems clear that the legislature intended to confer upon her the full power of enjoyment, with a restriction on her power to incumber or alienate. "Whatever power, then, is incident to a complete holding would seem to be conferred upon her by a fair construction of the statute.

If the improvement in question was necessary and proper for a full and complete enjoyment, then the wife could charge her separate property with the debts created in making it.

The first paragraph, however, is bad, for the want of averment showing that the dwelling house was necessary and proper for a full and complete enjoyment by the wife of the lots in question.

The question of the power of a married woman to make new improvements, being a power liable to abuse, must be under the control of the court tryingtke case involving the liability of her separate property to answer for the debts created in making such improvements.

The lien of the mechanic or material-man is created by statute, and before either can avail himself of such a lien the statute must be complied with.

The notice charged in each paragraph of the complaint was insufficient to create the lien, and the court had no power to reform it.

The second paragraph is good. It shows a liability of the husband for the debt, and that the holding of the wife is in trust for her husband. Under the code, complete relief can be granted. A judgment may be obtained against the husband for the debt, and the lots in question subjected to the payment of the judgment.

Judgment reversed, with costs; cause remanded, with di *111 reetiou to overrule the demurrer to the second paragraph of the complaint, and for further proceedings.

F. T. Hord, for appellants. W. $ W. W. Ilerod, for appellees.