
    Robinson vs. Huffman and Wife.
    Pet. Eq.
    Case 13.
    APPEAL FROM LINCOLN CIRCUIT.
    The mother of a married woman conveyed to her a house and lot in a town, and furnished lumber in part to repair it, and the husband had the repairs done and paid therefor to the amount of four or five hundred dollars, which repairs were necessary to render the premises habitable. Held — that the property was not liable, or any interest therein, to sale to satisfy a judgment creditor of the husband.
    Case stated.
    Robinson having a judgment against Huffman, rendered in 1841, for $125 72, interest and costs, and a return of no property found upon an execution on that judgment, filed his petition against Huffman and wife, and praying for the sale of the husband’s interest in a certain house and lot in Stanford, upon which it is alleged the husband, (the defendant in the execution,) had made improvements to the amount of four or five hundred dollars. The petition was answered, denying the right of the creditor to have any satisfaction out of the property. The evidence shows that the mother of Mrs. Huffman conveyed to her the house and lot in 1848 ; and that before the conveyance, part of the lumber to repair the house and lot had been furnished from the land of the mother; that the defendant, Huffman, paid the mechanics for the repairs, and for materials to a small amount; and that the value of the property was enhanced some four or five hundred dollars — all which was necessary to a comfortable occupancy of the premises — and that the defendants occupied the same as a residence.
    Burton, for appellant — ■
    The question presented by this record is j whether an insolvent husband, according to the laws of Kentucky, can expend his means which belong to his creditors, in erecting lasting and valuable improvements on his wife’s lands, and thereby elude his creditors ? If he may do so to the extent of $500, may he not to the extent of $5,000, by building upon the ground owned by his wife in a city where improvements are more valuable? The case of Athy vs. Knott, 6 B. Monroe, 29, is relied on as authority for appellant, and a reversal is asked.
    
      Fox Sr Bell, for appellee—
    1. The house and lot in. Stanford, when conveyed to Mrs. Huffman, in 1848, was not tenantable. Dr. Huffman made some improvements upon the dwelling house, put up a stable and smoke house, by which the witnesses suppose the value of the property was increased some $500, part of which repairs were paid for in professional services. Robinson, a judgment creditor, seeks to subject the improvements put upon the lot by Dr. Huffman to the payment of his judgment.
    The case of Athy vs. Knott, 6 B. Monroe, 24, cited' and relied upon by appellant, is not analagous. In that case the court said: “An insolvent father, instead of paying his debts, expends a large sum in the erection of valuable buildings upon the lots of his infant son. Can he in this way provide for himself and enrich his son, at the expense of his creditors? We think not.” In that case there was a fraudulent design secretly to place the funds of the father in a condition profitable to himself. In this case there is no such design as the purpose of Huffman ; but the husband, a physician laboring under embarrassment, seeks, out of a part of his earnings, to put the house and lot of his wife in such condition that his wife and children may enjoy it comfortably as a residence. There has been no lavish expenditure ; nothing more than was necessary to preserve the property and render it tenantable.
    2. The 3d section of the act of 1846 provides that the lands of a married woman shall notbe subject to the debts of her husband, nor be levied on, attached, or sold for his debts created before or after the marriage. It is impossible, in this case, to sell the improvements separately from the house. We hope for an affirmance of the judgment.
    
      The mother ■ of a married woman conveyed to her a house and lot in a down, and furmished lumber in part to repair it, and the husIband had the repairs done and paid therefor to the amount of •four or five hundred dollars, which repairs were necessary to render the .premises habitable. Held— ■that the property was not liable •or any interest •therein, to sale •to satisfy a judgment creditor of the husband.
    December 16.
   Chief Justice. Marshall

delivered the opinion of the Court—

In this case, Robinson, a judgment creditor of Huffman, with a return of no property on his execution, seeks to subj ect to his demand the value of improvements.paid for by him, and made upon a small lot in the town of Stanford, on which the debtor, with his wife and family, reside. The prayer of the petition is resisted by the husband and wife, who allege that the improvements consist mainly of the repair of a log house, which had for a long time stood upon a lot conveyed to the wife by her parents in 1848, for which a great part of the lumber had been furnished from the land of her father. And although it appears from the evidence that the mechanics who did the work have been paid by him, and that he purchased and paid for materials to a small amount, and that the value of the lot has been enhanced by the improvement to the amount of four or five hundred dollars, it does not appear that the improvements were more than was necessary to put the, house and lot in habitable and decent condition. The payments were partly made in his own medical bills, and altogether,-as maybe inferred, by the proceeds of his practice as a physician, which may be presumed to have been very limited. There is no evidence that he has any other house for his family but that which he has repaired on the land of his wife. Nor does it appear that he could furnish any other for a less sum than he has-expended for repairs. His expenditures upon this subject have not been extravagant, nor such as furnish any ground for inferring the design or intentional purpose of thereby defrauding his creditors. He seems, to have done little more in putting this house and lot in tenantable condition than was necessary to perform his obligation to support his wife and family. And to charge the wife’s property with the expense for the benefit of creditors, would seem to be little better than to make it liable for his expenditures in furnishing food and clothing for her and her children. Besides, the repairs cannot be separated from the building so repaired, without rendering the premises uninhabitable, and toning the wife and children out of doors, and, in fact, out of her own house and lot. Nor could the materials and labor constituting the repairs be otherwise made availablo to .a purchaser, except by introducing him as a co-tenant. We know of no equitable principle which would authorize the Chancellor to grant the relief asked for. With the certainty of such results, and especially where there has been no intentional wrong, in which the wife, whose claim is as meritorious as any other, may be presumed to have participated. The case of Athy vs. Knott, 6 B. Monroe, 29, does not authorise the relief prayed for in such a case. That case, and the ease of Brown vs. Steele, 10 B. Monroe, 323, show with what caution and with what regard to the rights of the owner of the realty the power of subjecting the improvements placed upon it by a debtor having a temporary right is to be exercised by the Chancellor. The case of Fetter vs. Wilson, &c. 12 B. Monroe, 90, is a strong illustration of this regard for the rights of a wife owning the real estate by deed subsequent to act of 1846, protecting the rights of married women, even where the improvements placed thereon by the husband are sought to be subjected by the mechanics themselves, to payment of the debts of the husband incurred in placing them there. This case is stronger in favor of the wife. And, as the land itself cannot be sold for the debt of the husband, not having been charged with it by the written act of himself and wife, and as the improvements cannot be sold without great injury to the wife, and as there is no actual fraud which may be imputed to her, there is no equitable ground for the relief sought, and the petition was properly dismissed. Wherefore, the decree is affirmed.  