Hensey v. Hensey's Adm'r

| Ky. Ct. App. | Oct 24, 1891

JUDGE BENNETT

delivered the opinion of the court.

This action was brought by the appellee to forciose a mortgage on the husband’s land, executed by the appellants, as husband and wife, to the appellee’s intestate. It is alleged in the petition that the mortgage was executed, acknowledged and delivered by the appellants; but it is not alleged that it was recorded or lodged for record. But the appellants allege in their answer that the mortgage was not recorded or lodged for record, and that they, at the time the action to foreclose the mortgage' was brought, were, with their family, living on the land as a homestead, and the land was not worth as much as one thousand dollars. The court, not deeming the answer sufficient, gave judgment for the sale of the land to satisfy the mortgage lien. This was error.

It is well settled by this court that the debtor with a family may, in good faith, move on the land and make a home of it, and thereby acquire a homestead in it, notwithstanding his indebtedness was created prior to his moving on the land, provided the indebtedness was not created before the purchase of the land or the erection of the improvements. So the only question is, does the mortgage defeat the appellants’ right in that regard ?

Section 13, chapter 38, General Statutes, provides: “No mortgage, release or waiver of such exemption shall be valid unless the same be in writing, subscribed by the defendant and his wife, and acknowledged and recorded in the same manner as conveyances of real estate.” Of course this language means conveyances of real estate by the husband and wife, and it declares that the mortgage, Release, etc., to be valid as a conveyance or release of the homestead right, must be sufficient to convey the wife’s potential or other interest in the real estate; and if the mortgage is not Sufficient to convey her interest it is also insufficient to convey the homestead interest of the husband. In the latter respect the mortgage, etc., is unlike the-conveyance of real estate in general, because the conveyance of the general estate may be sufficient to convey the husband!s title, but not that of the wife. Whereas, :as said, the mortgage, etc., of the homestead must be sufficient to convey the wife’s interest therein, otherwise it is invalid for such purpose as to both husband .and wife. So the question is, is the mortgage sufficient as to the wife to convey the homestead? Upon that subject section 21, chapter 24, General Statutes, provides that a deed of a married woman, to be effectual, must be acknowledged before the proper officer and lodged for record in the proper office. As has been construed by this court, it is as essential to make the deed effectual against a married woman to have the same recorded or lodged for z’ecord in the proper office as it is that she should acknowledge the same before the proper officer. This requisite not having been complied with, the mortgage was ineffectual to convey the homestead z’ight of either of the appellants.

The judgment is reversed and remanded with directions for further proceeding consistezit with this opinion.