Mattingly's Admr. v. Hazel

| Ky. Ct. App. | Jan 20, 1904

Opinion of the coubt by

JUDGE O’REAR

Reversing.

The owner of a tract of land worth less than $1,000 undertook to mortgage it to appellee’s assignor in 1888 to secure a debt of $190. The owner was then a married man, •and with, his wife and family occupied the land as a homestead. The wife was named as grantor in the mortgage, but failed, she says by oversight, to sign or acknowledge it, 'though willing and intending to do so. In the mortgage 'it is stated that the homestead exemption is expressly waived.

In 1898 the owner and his wife mortgaged the same land 'to Aud & Bro., to secure two named debts. This mortgage ■was duly executed and recorded, and in express terms waived the homestead exemption of the mortgagors. The owner died without paying either of the mortgage debts. There were no infant children. This suit is a contest between appellee, the owner of the $190 debt secured by the first mortgage, and the second mortgagee, as to which has the prior lien upon the land. The widow of the mortgagor has ■undertaken by a writing signed and acknowledged by her, and by a pleading filed in the case, to give full effect to the first mortgage by disclaiming any title or interest in the land, and attempting to relinquish whatever homestead right she had to the first mortgagee.

Ky. St., 1903, section 1702, exempts to a debtor with a family the land on which he resides as a homestead, not exceeding $1,000 in value. It creates no new estate in the debtor. It merely negatives the right of his creditor to subject that paid of the debtor’s land to his debts excepting those contracted before the purchase of the land or the erection of the improvements upon it. Section 1706 provides the manner for waiving this exemption. It has been frequently held by this court that the exemption can be Waived only in the manner pointed out by the statute; that is,the waiver shall be in writing,subscribed by the debtor and his wife, and acknowledged and recorded in the same manner as conveyances of real estate. Thorn v. Darlington, 6 Bush, 448" court="Ky. Ct. App." date_filed="1869-01-21" href="https://app.midpage.ai/document/thorn-v-darlington-7378817?utm_source=webapp" opinion_id="7378817">6 Bush, 448; Ballinger v. Lester (113 Ky., 96" court="Ky. Ct. App." date_filed="1902-03-18" href="https://app.midpage.ai/document/ballenger-v-lester-7134997?utm_source=webapp" opinion_id="7134997">113 Ky., 96), 23 R., 2353) 67 S.W., 266" court="Ky. Ct. App." date_filed="1902-03-18" href="https://app.midpage.ai/document/ballenger-v-lester-7134997?utm_source=webapp" opinion_id="7134997">67 S. W., 266; Wing v. Hayden, 10 Bush, 276" court="Ky. Ct. App." date_filed="1874-10-03" href="https://app.midpage.ai/document/wing-v-hayden-7379240?utm_source=webapp" opinion_id="7379240">10 Bush, 276; Meade v. Wright (21 R., 1806, 56 S. W., 523; Hensey v. Hensey’s Adm’r, 92 Ky., 164" court="Ky. Ct. App." date_filed="1891-10-24" href="https://app.midpage.ai/document/hensey-v-henseys-admr-7132562?utm_source=webapp" opinion_id="7132562">92 Ky., 164, 13 R., 426, 17 S.W., 333" court="Ky. Ct. App." date_filed="1891-10-24" href="https://app.midpage.ai/document/hensey-v-henseys-admr-7132562?utm_source=webapp" opinion_id="7132562">17 S. W., 333; Lear v. Totten, 14 Bush, 101" court="Ky. Ct. App." date_filed="1878-06-19" href="https://app.midpage.ai/document/lear-v-totten-7379588?utm_source=webapp" opinion_id="7379588">14 Bush, 101; Hemphill v. Haas, 88 Ky., 492" court="Ky. Ct. App." date_filed="1889-05-02" href="https://app.midpage.ai/document/hemphill-v-haas-lyons--co-7132169?utm_source=webapp" opinion_id="7132169">88 Ky., 492, 11 R., 62, 11 S.W., 510" court="Ky. Ct. App." date_filed="1889-05-02" href="https://app.midpage.ai/document/hemphill-v-haas-lyons--co-7132169?utm_source=webapp" opinion_id="7132169">11 S. W., 510. Section 1702 relieves the 'property known as the “homestead” from the debt absolutely, except for purchase fiioney, debts created prior to the purchase of the land, and for debts created before the erection of the improvements thereon. Those are the only exceptions. But for the provision of section 1706, land so occupied could not be subjected at all for debts. Whether the homestead is an estate or a privilege is not so material to determine. The fact is that the Legislature has made such lands not liable for the owner’s debts as stated. ■ By section 1706 a method is provided which, if adopted, will make that land liable for the debts specified in the writing. Unless the method given by section 1706 is taken advantage of, then section 1702, which makes an absolute exemption, remains in force. It is not in the power of the debtor to waive the law in any other manner than that expressly required by the statute. From this it follows that the first mortgage of 1888, which the wife did not sign, was void in so far as it! attempted to create a lien upon the land of the mortgagor which he occupied as a homestead. It being void for that purpose, the subsequent mortgage to Aud & Bro., in which the wife did join, and which was executed in strict conformity to section 1706, Ky. St., 1903, constituted the first lien upon the land. It was not competent thereafter for the wife of the mortgagor to give the first mortgagee a preference over Aud & Bro., by then signing and acknowledging a conveyance of her homestead right. Aud & Bro.’s lien bad attached, and nothing that the mortgagor or his wife could do thereafter could defeat or diminish the perfect lien of ithe mortgagees.

The judgment of the circuit court, not being in accord herewith, is reversed, and cause remanded for judgment consistent with this opinion.

Petition for re-hearing by appellee overruled.