178 Ky. 212 | Ky. Ct. App. | 1917
Opinion op the Court by
Reversing.
; The single question presented for decision by this appeal is, whether the homestead of a wife can be subjected to the payment of a default judgment against hér ■ for damages, rendered after the homestead was ac- . quired; such damages having resulted from the breach of a covenant of general warranty contained in a deed . from her husband, conveying to the latter the land therein described, in which the. wife joined to relinquish :■ as claimed, her potential right of dower, and which deed , was executed prior to her acquisition of the homestead. • The circuit court, in the suit of the wife joined by the. husband, held that her homestead was not liable for the . judgmennt, and set aside the sale thereof made under an execution issued upon the judgment. This appeal is prosecuted from the judgment manifesting those rul-.. ings.
The following facts appear from the record: On December 20th, 1902, the appellees, Lewis F. and Lucy. Purcifull, and one James B. Thompson, by joint deed, -- containing a covenant of general warranty, conveyed to- the appellant, H. C. Miracle, a certain tract of land . in Bell county for a recited consideration of $2,200.00, . cash in hand paid. On March 5th, 1909, the appellee,. - Luey Purcifull, as alleged in the petition, purchased a:, small tract of land in Madison county to which she and ■ hér husband immediately removed, and upon which they.; have since continuously resided. The deed to this land',, as further alleged, was, by mistake of the draftsman ; and without the wife’s knowledge, made to both hus-:. bánd and wife instead of to the wife alone. It is con-,: ceded that this tract of land is of less value -than. $l,-¡: 000.00. ;J
By a judgment of the Bell circuit court rendered atv its October term, 1914, in an action brought by-.a claim-;, ant, alleging- title, to recover of him the land which; had .-.
This contention is based upon Kentucky Statutes, section 2127, which in part provides as follows:
“No part of a married woman’s estate shall be subjected to the payment or satisfaction of any liability, upon a contract made after marriage, to answer for the debt, default or misdoing of another, including her husband, unless such estate shall be set apart for that purpose by deed of mortgage or other conveyance; but her estate shall be liable for her debts and responsibilities, contracted or incurred before marxism, and for such contracted after marriage, except as in this act provided. ’T
Whether the shield imposed by the statute, supra, in behalf of a married woman would have protected the appellee, Lucy Purcifull, against the. recovery of the judgment rendered in the Madison circuit court for the breach of warranty, if relied on by her as a defense to the former action, it is unnecessary now to determine. The fact remains that she made no defense to the ae
‘ The question in -this case is whether the covenant' of warranty created a liability, or did the liability in consequence of such warranty, arise when the eviction took place % If the liability was created by the warranty, then the land.claimed as a homestead is subject to the payment of the judgment on the warranty. If no liability existed on . the warranty until the eviction took place, then the land is exempt as a homestead, because it was purchased and paid for previous to that date. Liability is defined by Black’s Law Dictionary to be “the state of being bound or obliged in law or justice to do, pay, or make good something; legal responsibility.” Webster defines it to be “the state of being bound in law and justice;' responsibility.” Bouvier defines it to be “responsibility; the state of one who is-bound in law and justice to do something which may be enforced by action. ’ ’ When the covenant of warranty has been broken by eviction, the liability on the warranty does not then accrue, but'the cause of action then accrues on the liability which the ■ vendor assumed by his convenant of warranty. It is by reason of the existing liability, resulting from the warranty, that the cause of action accrues. An obligation to pay money at a future time creates a liability, and when the-promisor breaks his promise^o 'pay the cause of action accrues.
This court has held that, where the vendee has been: evicted, he is entitled to recover the money which-he paid, and interest thereon from the date of the deed containing^-the warranty, not interest from the date of the eviction-. • It treats it as- a liability incurred as of the dáte oúthe deed.' ■■ The'moment "the deed is- executed"and
The rule announced in the case, supra, was approved in Hieatt v. Anderson’s Admr., and others, 74 S. W. 1094, though applied to a different state of facts, and was recognized by this .court as far back as'1.829 in the case of Fitzhugh and Thurston v. Croghan, 2 J. J. Marshall 429, and applied to the breach of a. covenant of seisin, the court holding that such a covenant is satisfied only by the transfer of an indefeasible title, and is technically broken as soon as it is made, if the title be from any cause defeasible. ■ The only difference in such case and that of a'breach of warranty being that an action for the breach of a covenant of seisin will lie. before eviction, whereas in the case of a breach of warranty it will, not do so until the eviction results.' To the same effect is the opinion in Mercantile Trust Co. v. South Park Co., 94 Ky. 271. We are, therefore, compelled- by the authorities, supra, to give the judgment in the' former action for damages arising out of the. breach;
‘ ‘ If she can be sued, and is capable of making a defense to the action, then whatever judgment may be rendered against her is binding. She must be relieved, from the effects of that judgment and the consequences of it in the same way that a single woman would get relief. If she signed the obligation as surety for her husband while laboring under the disability of’coverture, she could have pleaded that fact as a defense to the action in which the judgment was rendered, and thus, if she established her plea, defeat a recovery. If she had pleaded coverture as a defense to the note, and had not sustained her plea, certainly she could not again relitigate the question as to whether she was liable as surety for her husband on the note in an action to enforce the judgment. Whatever she might have pleaded*219 as a defense to the note must be treated, in an action to enforce the judgment, as having been relied on a s'defense to the action; for if she failed to make the defense, the effect is exactly the same as it would have been had she made it, and failed to establish it. While the judgment remains in force, the presumption is conclusive that the disability of coverture was not a good defense to the obligation upon which the judgment was rendered. The statute says a married woman’s estate shall not be subjected to the payment or satisfaction or any liability upon a contract made after marriage to answer for the debt of another. This language does not, nor was it intended to, put it within the power of a married woman, after her liability had been fixed by the judgment, te then plead that it was an, obligation for the debt of another, and therefore the judgment should not be enforced. If her property can not be subjected to the payment of the judgment, it was idle to obtain it. It ivould be utterly valueless if it was not enforceable. Her rights were concluded by the judgment. Therefore she will not be permitted to show the character of the liability on which it was rendered, and thus defeat its enforcement.”
Shanklin v. Moody, &c., 23 R. 2063.
For the purposes of this case the appellees, Lewis F. Purcifull and Lucy Purcifull occupy identical- positions. A joint and several judgment has been rendered against them for a breach of warranty by a court having complete jurisdiction of the subject matter and of the parties. That judgment has not been vacated by the court rendering it or reversed by the Court of Appeals, and it can not be collaterally attacked as here attempted, but must be given as to the wife the same legal effect it has as to the husband. Therefore, it imposes a like liability upon each of them; and this being so, the homestead claimed to have been acquired by the wife subsequent to the conveyance to appellant, was legally subjected to the satisfaction of the judgment. For these reasons the exemption claimed cannot be allowed.
Judgment reversed.