Lee v. James

81 Ky. 443 | Ky. Ct. App. | 1883

JUDGE PRYOR

delivered the opinion op the court.

Porter and wife conveyed a lot of ground in the city of Covington, for the consideration of $624.25, to Alexander James. One hundred dollars of the purchase money was paid in hand, and the balance was payable in one, two, three, and four years, for which notes were executed, and a lien retained in the deed to secure the payment. James sold this lot to Chambers, Chambers to Moore, and Moore to the appellant, Lee, who is the present owner.

James and wife executed a conveyance to Chambers, properly acknowledged, in June, 1862, but the deed was not recorded until the year 1880, eighteen years after its execution and delivery, and after the death of James, the grantor. After the death of James, which occurred in the year 1879, his widow, the present appellee, instituted this action for dower, based upon the failure to have the deed recorded within eight months. It was not recorded until after the fight of the wife to dower had attached, and not until eighteen years from its execution and transfer.

We will not stop to inquire as to the effect of chapter 24, section 22, General Statutes, authorizing deeds to be effectual from the time they are recorded, although they may not have been recorded within the time provided by law. If regarded as a curative statute, it should not apply to a conveyance executed eighteen years before it is recorded, and not then until after the death of the grantor and the right to dower becomes vested in the widow.

The consideration paid by Chambers was $160 in money to James, and the assumption of the purchase money notes to the vendor of James, and these lien notes were afterwards paid by Chambers.

James never had any interest in this land that was not subject to the lien, and that the widow is not entitled to dower, as against a lien for the purchase money, is too well understood to require authority in support of it. That question is settled not only by the decisions of this court, but by positive statute. The position advanced in this case is, that Chambers paid the price to James.by assuming to pay the vendor, Porter, and that if he had paid James, and the latter had paid Porter, the widow would have been entitled to the dower. He never, however, paid James, and no part of the purchase money notes was paid by the latter. If that is regarded as a payment to James, then James should have made to Chambers a deed free from any lien. The vendee of Porter is unable to pay for the lot, and agrees with Chambers that if he will pay him $160 in money, and discharge the lien, he may have the property. The lien was then discharged by Chambers and no one else. What is the difference in a sale by the chancellor to pay the purchase money and a sale by the vendee when he finds that he is unable to pay his vendor? The chancellor makes the sale in the one case, and the vendee himself makes it in the other. It is not the sale by the chancellor that protects the vendee from the claim of dower, where the sale is to satisfy the lien notes, but it is because the husband’s title is subject to the lien, and the wife’s right to dower is made to depend on the fact as to whether or not the husband’s right was beneficial. It is only to the extent that he is beneficially interested that the wife can claim. If the wife’s right to dower is subordinate to the vendee’s lien, a question not controverted, then its discharge by Chambers is not for the benefit of his vendee, but for his own benefit, as he becomes the owner of the property by assuming to discharge the incumbrance.

In this case the chancellor proceeded against the objection of the appellants to ascertain the cash value of the property, and gave the dower in money, and then ordered a sale of the house and lot to pay it. We are not aware of any rule of law or equity that will authorize the chancello^ to assign dower in this manner. He can not fix a cash value, and require the owner of the land to pay it, or subject the land to its payment without his consent, where the land has already been converted into money, or where the parties consent that may be done; but if not, as said by this court in O’Donnell v. O’Donnell, 3 Bush, “the widow is only entitled to the use of one-third of the land for life,” and, where the land is indivisible, she is entitled to one-third of the rents. The property can not be sold, although indivisible, at the instance of the widow claiming dower, against the consent of the owner of the land. (See Liederkrantz Society v. Beck, 8 Bush.) It was also error to allow rents or interest from the death of the husband; it should have been from the institution of the suit. But is the widow entitled in this case ?

The 5 th section of article 4 of chapter 52, General Statutes (the same evidence, is found in the Revised Statutes), provides: ‘ ‘ The wife shall not be endowed of land sold but not conveyed by the husband before marriage, nor of land sold in good faith after marriage to satisfy a lien or incumbrance 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 statute makes no distinction between sales by the chancellor to satisfy the lien and sales by the owner. Here the sale was made to satisfy the liens by the husband of the appellee, and what was left, after discharging the liens, he received into his possession. Suppose the lot had been sold by the chancellor, and the purchaser had bid the amount of the lien notes and $160 in addition, and this money had been paid over to the husband, the wife would have been •deprived of dower; so when the sale is made by the husband, and the party required to discharge the liens, as in this -case, no claim for dower can be asserted. The appellants are not claiming that their money was paid to James, and by him applied to the discharge of the lien, and by this means obtain the application of an equitable rule in their "behalf; but they allege, and the contract shows, that he was to discharge the liens and pay James $160. This was done, and the wife’s right being subordinate to the liens, and the husband receiving the $160, she is not entitled to dower. Any other construction of the statute would preclude the husband from selling to satisfy the lien without the consent of the wife, and require him or his vendor to subject the estate to sale for that purpose by the aid of a court of equity.

Judgment reversed and cause remanded, with directions to dismiss the petition. It is objected that the assignment of error is insufficient. The objection is to the judgments on pages 53 and 55 of the record, that the court erred in rendering them. This brings up the question as to whether, on the facts, the appellee is entitled to recover.