92 Ky. 59 | Ky. Ct. App. | 1891
delivered the opinion of the codrt.
These are suits for dower and were heard together. The husband of the appellant was the statutory guardian of six children, and soon after his appointment he filed a-
It is insisted by counsel for the widow that the report of the Commissioner, showing that he had collected of Johnson, the guardian, his purchase money notes, and had paid it to those entitled, having been confirmed by the court, is conclusive of this case, and for the additional reason that the guardian had charged himself as guardian, in his county court settlements, with each of his wards portion of the land, and other property held by him. That the guardian at the time of his failure owed each of his wards a considerable sum of money clearly appears, and certainly the greater part of it was on account of his indebtedness for the land. In the proceeding under the act of 1856, this land was sold as the land of the husband of the appellant, and purchased by the vendor of the appellees. The land was sold without specifying the debts
It is evident that four-sixths of the purchase money had been paid, and equally as apparent that Johnson, the husband of the appellant, owed the wards for the-remaining two-sixths by reason of his purchase. Johnson was insolvent, had never paid his wards for the-land, and by his own act as purchaser could not deprive them of their right to enforce a lien for the purchase money. The record of the action in which he purchased the land, reciting that he had paid for it, works no estoppel on the part of these wards or as against the purchaser from the guardian. "What does this record show? It shows that the receipt of the purchase money was-acknowledged and so reported by the Commissioner and confirmed by the court, but it further appears that the guardian was only paying this money to himself. He charged himself with it in the county court settlements, and if he paid it in any other way he, or those asserting rights under him, must show it. He held this land, notwithstanding he purchased it as trustee for these children, and, if living, in an action against him to enforce a lien could not be heard to say that he had paid this money to the Commissioner (if such was the fact), and the Commissioner handing it back to him he had charged himself with the amount owing in his settlement, and thereby destroyed the lien. Nor was it necessary to allege fraud or mistake, in order to reach the land by enforcing the lien. There was no fraud or mistake, as the facts devel- ' oped show that the husband made the purchase in good
Our statute provides that the wife shall not be endowed' of land sold to satisfy a lien for the purchase money. (Chapter 52, General Statutes, article 4, section 5.) This was intended to prevent the claim of dower from being asserted against the vendors’ lien, and these parties appellee whose vendor bought the land, and whose money was applied to discharge’ the lien, must be protected to the same extent that a purchaser from Johnson would have been if Johnson had sold it to satisfy the lien. This is the spirit and meaning of the- statute, and it would be unconscionable to allow the widow dower in land as against the vendee of the husband, when by his purchase his money is applied to the discharge of the lien then' upon it. It would be no answer to the infants by the insolvent guardian to say, that under his purchase
In our opinion the widow was not entitled to dower in two-sixths of the land.
Judgment affirmed.