92 Ky. 164 | Ky. Ct. App. | 1891
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 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 judgment is reversed and remanded with directions for further proceeding consistezit with this opinion.