| Ky. Ct. App. | Oct 9, 1884
OpiNion by
Henry Walters died in the year 1849 leaving his widow, Mary A. Walters, surviving him and two infant children, one of whom died in infancy. The surviving child was named Chas. A. Walters and this child and his mother occupied the premises from the death of the husband and father until the year 1875, when they were ejected by the United States Marshal under a process issued upon judgment from the Federal Court. Dower had never been assigned the-widow and the son becoming of age soon found himself pecuniarily embarrassed and made to the mother a conveyance in fee of all his interest in the homestead or the home place. He was then adjudged a bankrupt, and his assignee Jones for and on behalf of creditors instituted an action in the Federal Court to cancel the deed to the mother on the ground of fraud or a fraudulent preference. That court rendered a decree setting aside the conveyance and directing a sale of the property to pay the son’s debts. At the sale the appellant Funk became the purchaser and as such paid over the purchase money. At the sale it was announced that the widow, Mrs. Walters, (appellee) asserted her right to both dower and homestead, and the purchaser must buy at his peril. This action was then instituted by the widow for her dower claiming it through her husband and for a homestead claiming it •through the son by reason of the conveyance of 1874 and the chancellor gave her both dower and homestead. This conclusion was reached by determining that the son having a homestead, the conveyance to his mother, although fraudulent, passed to her this much of the estate as it was not subject to creditors, and as to dower she derived that interest as the widow of her deceased husband.
It is insisted by the appellant that all of these issues were made in the proceedings instituted in the Federal Court and that therefore the title was definitely settled in that action. The only issue was as to the fraudulent preference and the conveyance being can-celled the mother and son occupied the same position as to creditors that they would have occupied if no such deed had been made. The right and title as well as the use and occupancy of this realty passed to- the widow and her son under the Revised Statutes or
See article 13, section 1, chapter 36, Revised Statutes; also section 1, article 12, chapter 38, General Statutes. There are so many irregularities in the sale however of the widow’s dower under the execution in favor of the property being appraised at $2,700 and selling for thirty dollars only, that it should be disregarded and the widow allowed either her dower or homestead as she may elect.
Judgment reversed and cause remanded for proceedings consistent with this opinion.