Helm v. Board

114 Ky. 289 | Ky. Ct. App. | 1902

Opinion op the court by

JUDGE O’RE'AR

— Affirming.

Appellant and her late husband, Geo. L. Helm, were married in 1848. The husband died intestate in 1897. In October, 1880, he was seised in fee simple of a tract of land then in Muhlenberg county, now McLean county, containing about 757 acres. A portion of this land (nine lots) her husband sold and conveyed (she joining in the conveyances) between 1850 and 1854. The remainder of the original tract her husband mortgaged to various persons and firms in 1854 and 1855. Appellant did not join in the execution of any of the mortgages. She brought this suit in 189b to have dower allotted to her in the land above mentioned, in the conveyances of which she did not join. The principal defense is that the land had been sold under a decree of the McLean circuit court in 1850, in consolidated actions brought against said Geo. L. Helm to enforce the liens on this land, evidenced by the mortgages above named, as well as to foreclose purchase-money liens recited and retained in the deed by which Helm obtained the title. The balance of the purchase money then owing was $3,714.10. The land and lots brought at the sale $6,868; the excess above the balance owing on purchase money having been applied to the payment of costs in the actions, and then to certain mortgage debts therein sued on. The vendor having died, the actions in his name.were revived in the name of the administrator, who also brought another action on the remaining unpaid purchase-money notes. It was in these suits, consolidated with those to foreclose or enforce the above and other mortgage liens, that the decree of sale was entered, under which the land was sold in 1856. A demurrer to the defense above outlined having been overruled, and no pleading sufficiently controverting it having-been filed or tendered, appellant’s petition was dismissed.

It seems to be the contention of the appellant that her right to dower in this land became fixed or vested as of October, 1850; that then it was the law that the wife should be endowed of her husband’s lands, without regard to liens or obligations for purchase money or other cause, except she voluntarily relinquished such right; that the Revised Statutes, adopted in 1852, by section 6, art, 3, c. 47, and since continued in force, changed the rights of wives in this respect, but as to her rights that statute was not intended by the Legislature to apply, as to have it to do so would be violative of her vested right, and would therefore be unconstitutional. We are unable to agree with the argument. The wife’s inchoate right of dower is not a vested right in the sense that it is not subject to change, or even abolishment, by the Legislature, so long as it merely remains an expectancy- — that is, during the life of the husband (Cooley, Const. Lim., 441; 2 Bish. Mar. Wom., section 42; McNeer v. McNeer [Ill.], 32 N. E., 681, 19 L. R. A., 256; Mitchell v. Violett, 104 Ky., 77 (20 R., 378) 47 S. W., 195; Phillips v. Farley (23 R., 2201) 66 S. W., 1006), although it is a valuable right, which the law will recognize and protect (Petty v. Petty, 4 B. Mon., 215, 39 Am. Dec., 501). The case of Rose v. Rose, 104 Ky., 48 (20 R., 417) 46 S. W., 524, 41 L. R. A., 353, 84. Am. St. Rep., 430, is relied on by appellant as sustaining the contrary view to that here announced. The doctrine of the Rose case is 'evidently misunderstood by counsel. In that case, and in the one of Mitchell v. Violett (decided the following day), the questions were as to the character of the'husband’s estate in his wife’s lands. It was held that inasmuch as his right to the use of her lands during coverture was fixed and complete as to all lands owned by her during her coverture, and prior to the law of 1894, the Legislature could not curtail this right of the husband without his consent. His right was not, in that case, in expectancy, merely, but was fixed. The facts of this case would be analogous to Rose v. Rose only in event the husband had died before the Legislature undertook to change the wife’s dower interest. Chapter 47, art. 4, section 6, Revised Statutes, which is identical with section 2135, Kentucky Statutes, was as follows: “The wife shall not he endowed of land sold but not.conveyed by her husband before marriage; nor of land sold dona fide after marriage to- satisfy a lien or encumbrance created before marriage, or created by deed in -which she joined, or to satisfy a lien for the purchase money. But if there is a surplus of the land or proceeds of sale after satisfying the lien, she shall have dower or compensation out of such surplus, unless the surplus proceeds of sale were received or disposed of by the husband in his lifetime.” The whole of the land was sold in this case. Therefore there was no surplus of the land. Then the widow’s right to dower must be satisfied out of the surplus proceeds of the sale, for which the land is not liable, nor are its present owners. Tisdale v. Risk, 7 Bush, 139; Melone v. Armstrong, 79 Ky., 248; Ratcliffe v. Mason, 92 Ky., 190 (13 R., 551) 17 S. W., 438. The widow’s right to dower was subordinate to the vendor’s purchase-money lien before the adoption of the Revised Statutes, supra. McClure v. Harris, 12 B. Mon., 204. But in any event, we hold that the sections of the statutes above quoted control her right in this case.

It follows that the judgment of the circuit court should be affirmed.

Petition for rehearing by appellant overruled.