273 S.W. 476 | Ky. Ct. App. | 1925
Affirming.
By this action filed June 1, 1922, appellant seeks to have dower set apart to her in a 50-acre tract of land conveyed by her husband to appellees' remote vendors May 7, 1881. She also signed and acknowledged the deed, and in avoidance thereof, she alleges, in the first paragraph of her petition that she was a minor at the time; and, in the second paragraph that her name does not appear in the caption or body of the deed. A demurrer was sustained to the second paragraph of the petition, and an estoppel pleaded to the first paragraph was sustained upon a trial of that issue, whereupon her petition was dismissed, and she has appealed.
The deed filed with and made part of the petition does not contain the name of appellant in the caption, the granting clause, or the habendum, but it concludes thus:
"IN WITNESS WHEREOF the said R.P. Hackney W.H. Hackney, together with Charity Hackney Diana Hackney, their wives, who hereby relinquish their right of dower in to the lands conveyed in this deed hath hereunto set their hand and seal this day date above written, all the poplar trees 24 *808 in. in diam. cucumber merchantable walnut 12 in. up that is on the part of the land owned by R.P. Hackney is excepted out of said land."
Hence by express stipulation recited in the body of the deed, appellant became a party thereto for the purpose of relinquishing her potential right of dower in the land thereby conveyed, and if she had been of age at the time, there could be no doubt of the sufficiency of the deed to accomplish that purpose. It was expressly so held in Stone v. Stubblefield's Admr., 13 Ky. Opns. 119, 6 Ky. L. R. 443.
The cases relied upon by appellant, Prather v. McDowell, 8 Bush 46, and Buford's Admr. v. Guthrie, 14 Bush 677, not only do not support her contrary contention, but by necessary inference contradict it, since, as pointed out in the former of those cases, the deeds therein were held insufficient to pass dower because the wife "used no words indicating upon her part an intention to relinquish dower in the lands conveyed."
Since the deed filed with the petition as an exhibit expressly relinquishes dower and contradicts the allegation of the second paragraph, that appellant's name does not appear in the body of the deed, the exhibit controls, and the court did not err in sustaining the demurrer to that paragraph.
The fact, admitted by the answer, that appellant was a minor when she executed the deed, rendered it voidable but not void. Although her husband did not die until shortly before this action was instituted, she could, at any time since the passage of the Weissinger Act in 1894, have disaffirmed the deed and prosecuted an action in her own name to set it aside. Instead, although she lived in the immediate vicinity of the land all of the time, she said nothing, and stood by and saw the land changing hands and being permanently improved by innocent purchasers.
Under almost precisely the same circumstances, we held, in Moore v. Hudson,
Although the petition does not attack the validity of the deed except for the two reasons above disposed of, it is now urged that it is void because the clerk who took the acknowledgement did not certify that appellant was *809
examined and acknowledged the deed to be her voluntary act, separate and apart from her husband, as was then required by section 507 of the statutes. We need not consider her right thus to present the question, since, assuming it is here, it is concluded against her by the opinion in Echols v. Wood,
Judgment affirmed.
