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Kantrowitz and Another v. Prather and Wise.
to secure its benefits to themselves, seems required and consistent with its spirit and language. A construction that would limit the right of the wife to deal in regard to her real estate so as to preserve her ownership, secure its enjoyment, or make it capable of yielding her an income, unless with the assent of her husband she executed a mortgage, would render her, as to that portion of her estate, entirely dependent upon the will of the very person against whose arbitrary acts the statute intended to guard her.
In the restricted interpretation given to their statute, we think the Supreme Court of California lost view of the purpose of the legislature. We regard a construction which permits the wife to deal with her lands so far as to render them a source of profit and income, or of personal enjoyment and use, and so far as to protect her title, as in best accord with the spirit of our legislation.
We do not intend to be understood as in plying that the general protecting supervision which has so long been exercised by courts of equity over the property of married women, protecting them from imposition and fraud, has been withdrawn by the statute. It must therefore appcar that any contract relating to the property of a married woman, which is sought to be enforced in equity, is conscionable, and where it relates to the betterment of her real cstate, that it is reasonably calculated to promote that end. Within this limitation, it seems reasonable to conclude that, inasmuch as the statute makes the wife owner as a feme sole of the rents and profits of her real estate, and as the act is clearly intended for her benefit, a court of equity may permit her to contract with regard to her real estate so that an income may be derived therefrom.
The complaint in this case does not charge the wife with any intent to contract with regard to her separate estate. The fact that the goods were sold and credit was given by the appellants on the faith of the property, is nothing more than an averment of their opinion of what was necessary to create a charge against the land or its income. Their
Lindley and Another v. Cross and Wife.
intent, however, is not sufficient; the married woman must also intend thus to contract.
The demurrer was therefore properly sustained to the complaint.
Judgment affirmed, with costs.
LINDLEY and Another v. Cross and Wife.
Married Woman.-Sepa Property.--A married woman has, in this State,
whatever power is incident to a complete holding and full enjoyment of her separate real estate, with a restriction upon her power to incumber or alien
ate the same. SAME.--Improvement of her Real Estate.-- Where an improvement made by a
married woman upon her real estate is necessary and proper for a full and complete enjoyment of such real estate, she can charge her separate prop
erty with debts created in making the improvement. SAME.— Court's Protecting Control.—The power of a married woman to make
new improvements upon her real estate, for the purpose of preventing its abuse, is under the control of the court trying the cause involving the lia
bility of her separate property to answer for the debts so created. SAME.—Pleading.-Mechanic's Lien.-A complaint to enforce a material-man's
lien for lumber furnished to erect a dwelling house upon the separate real cstate of a married woman, the portion relating to the lien showing an insufficient notice, was held bad on demurrer for want of averment that the dwelling house was necessary and proper for a full and complete enjoyment
by the married woman of the real estate in question. MECHANIC's Lien.— Notice.-Reformation of.-A notice of intention to hold a
material-man's lien erroneously described the property as lots "6 and 7," the true description being “3 and 4.” Suit to enforce the lien, the complaint alleging, that the ownership of the property remained unchanged; that no third person had acquired any rights that would be affected by a correction of the mistake; and that the materials furnished were the only
materials of the kind ever furnished by plaintiff to defendant. Held, that the notice was insufficient to create the lien, and that the court had
no power to reform it.
Lindley and Another v. Cross and Wife.
PRACTICE.— Fraud.— Resulting Trust. - Where a conveyance of real estate, for
a valuable consideration, is made to one person, the consideration being paid by another, for the purpose of defrauding the creditors of the latter, such a creditor may, under the code, have a complete remedy in one action: a judgment may be obtained against the debtor and the real estate in question subjected to the payment of the judgment.
APPEAL from the Bartholomew Common Pleas.
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 towa of Elizabethtown, in Bartholomew county, undertook, with her husband, Thomas, to erect and did ereet thereon, a new building, to wit, a dwelling house; that defendant Thomas, with the knowledge and consent of Susan, and as her agent therefor, purchased of the plaintiff's 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 plaintiff's 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 plaintiff's 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
Lindley and Another o. Cross and Wife.
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 &c., caused Judd to convey the property to Susan, the wife of said Thomas; that the conveyance was not recorded until the 30th 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 plaintiffs 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 knew that the plaintiffs 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 plaintiffs, caused the conveyance to be executed to Susan Cross, his wife; that Thomas Cross is wholly and notoriously insolvent, having no property other thau said real estate; that the conveyance to the wife was without any consideration whatever passing from lier. This paragraph then charges the notice and mistake as set forth in the first.
The appellee Susan Cross filed lier separate demurrers to each paragraph of the complaint. The appellee Thomas Cross also filed his separate demurrers to each paragraph of
Lindley and Another v. Cross and Wife.
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 of 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. (1. 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