91 Ky. 497 | Ky. Ct. App. | 1891
delivered the opinion of the court.
The appellant, while a feme sole, executed to the appellee the notes, and the mortgage on her land to secure one of the notes, now in controversy. She and the appellee thereafter married each other, and while they were husband and wife, and said notes not having been paid, the appellee brought suit on them, seeking a personal judgment and foreclosure of said mortgage.
The appellant interposed the defense that by her marriage with the appellee said debts were, in law, paid, or extinguished, which had the effect to cancel said mortgage. During the pendency of this suit the appellee obtained a divorce from the appellant, in which each party was restored to any property not disposed of at the commencement of the action, which such party might have obtained, directly or indirectly, from or through the other, &c.
The lower court decided that the subsequent marriage, under the circumstances, did not extinguish the said mortgage, and ordered the land sold to pay the mortgage debt.
By the common law marriage has the legal effect
But it is said that the mortgage gave the appellee an equity which he could enforce after the marriage. Well, the mortgage did not convey to the appellee any equity except as that equity was supported by the debt that the equitable conveyance was' intended to secure; and if such debt was thereafter paid in fact, or by operation of law, the lien or equity become eo instanti discharged. Such lien subsists upon the debt that it secures; and when that debt is paid, or extinguished by either actual payment or payment by operation of law, the lien itself is thereby discharged.
But it is said the divorce restored each party to all his property not disposed of before the commencement of the action as fully as if there had been no marriage. The answer to this proposition is, that the appellee’s property in these notes was disposed of before the action was commenced. They were paid, or extinguished, by the marriage, and the divorce did not revive them.
The judgment is reversed, with directions to dismiss the appellee’s petition.