93 Ky. 353 | Ky. Ct. App. | 1892
delivered the opinion op the codrt.
In 1883, S. H. Jenkins, husband of the appellee, L. A. Jenkins, and the said appellee, L. A. Jenkins, executed a mortgage on a house and lot, the property of S. II. Jenkins, situated in West Point, Hardin county, Ky., to secure the payment of borrowed money. Thereafter, S. H. Jenkins, in contemplation of insolvency, made an assignment for the benefit of creditors. The assignee instituted suit in the Hardin Circuit Court to have the estate settled and distributed among the creditors. Emily Davis, as creditor and mortgagee, was made defendant to that action. She instituted a cross-action against S. II. Jenkins and the appellee, L. A. Jenkins, by which she sought to have her mortgage lien on the house and lot enforced. Summons on the cross-petition was duly executed on S. II. and L. A. Jenkins, and judgment by default was thereafter rendered on the cross-petition against S. H. and L. A. Jenkins for said mortgage debt, and foreclosing the mortgage lien on the house and lot to satisfy said debt. More than a year thereafter, and after the term of court at which the judgment foreclosing the mortgage was rendered, the appellee by petition made known to the court that her husband, S. II. J enkins, had been, since the execution of the mortgage, adjudged a lunatic and was then confined in the lunatic asylum. She also alleged that her name did not appear in the granting clause of the mortgage, and that her husband had procured her signature thereto and acknowl
It is true that L. A. Jenkins’ name does not appear in the clause granting the title to said house and lot. She had no title thereto, but she did have an inchoate right to homestead and dower in said house and lot, which she could not be deprived of except by her own act exercised in the manner pointed out by the statute. The statute upon these subjects provides that the right to a homestead shall not be waived nor dower relinquished, except by a written conveyance thereof signed by the husband and wife and acknowledged by them and recorded, etc. Now, the title to the real estate was in the husband, S. H. Jenkins, and the wife, L. A. Jenkins, owned no interest therein whatever; she was only entitled to an inchoate right to homestead and dower therein, which she could waive and relinquish by deed signed by herself and husband for that purpose, and duly acknowledged and recorded, etc. Now, if she joins in that part of the body of the deed conveying the homestead and dower, by apt words to convey said interests, that is a compliance with the statute upon that subject. The mortgage, in reference to the waiver of homestead and dower by Mrs L. A. Jenkins, reads: “ And Mrs. L. A. Jenkins, wife of S. H. Jenkins, hereby
It is not alleged, nor is there any proof, that there was fraud in the mortgagees in obtaining certificate of acknowledgment, nor of a mistake by the officer. Now the certificate of the clerk being conclusive that L. A. Jenkins freely and voluntarily executed and acknowledged the mortgage, and there being no fraud or notice of the alleged fraud by S. II. Jenkins on the part of the mortgagees, and they being otherwise, innocent purchasers for value, they are not affected by the alleged fraud; and the mortgage must be held valid and as passing the appellee’s homestead. See the case supra, page 66.
The judgment is reversed and cause remanded with directions to proceed consistently with this opinion.