12 Ky. Op. 134 | Ky. Ct. App. | 1883
Opinion by
Appellees sold to Cass an unimproved lot of ground in consideration of $100, and agreed with Cass to furnish the material for building a house upon the lot upon the condition and with the understanding that appellees were to have a lien upon the property for the purchase-money and for the material so to be furnished. The material was furnished and a note executed by Cass to appellees for $805, the amount of the purchase-money, and material furnished, and in the face of the note it is recited that it is given for land. Cass died, leaving a wife and children occupying the premises, and this suit was brought to subject the property to the payment of the debt. The widow resists, claiming homestead and dower. The court below placed the property in the hands of a receiver, rented it out, and finally adjudged that the land be sold to pay the debts and that the rents be paid to appellees.
It is insisted for appellants that the court ought to have adjudged dower and homestead, and that in any event she was entitle to the rents.
The widow is not entitled to either dower or homestead. The agreement contemporaneous with the acquisition of title by the husband to give a lien upon the property when improved to secure the repayment of moneys to- be advanced for the improvement, when consummated by writing, gave an enforcible lien on the property as against the husband, and as the wife takes that only which the husband could have successfully claimed, she has no homestead or dower until the claim of appellee is satisfied. It does not matter that the sum claimed is stated in the note to be purchase-money. It is in
The court, however, erred in giving the rents of the property to appellees, as the widow was endowable of the estate, subject to appellees’ claim, and therefore entitled to the occupancy of the mansion house until the assignment of dower or the sale of the same; besides appellees’ lien did not extend to the rents. Even in the case of a mortgage the lien does not extend to the rents unless so stipulated. The widow is entitled to the rents, and as she was entitled to the occupancy the court should not have appointed a receiver. Therefore the costs of this proceeding should be paid by appellees. To this extent the judgment is reversed.