115 Ky. 226 | Ky. Ct. App. | 1903
Lead Opinion
Opinion of court by
Affirming
The appellant, Morgan, executed to aippellee, Wickliffe, a -note for the sum of $2,127.40, and, to secure the payment of it, executed a mortgage upon a tract of land in Daviess
.The wife was not a necessary party to the action. The effect of the mortgage which she executed was to release her potential right of dower in the land, except the surplus proceeds arising from the sale of the land, if any. Section 2135, Kentucky Statutes, reads as follows: “The wife shall not be endowed of land sold, in good faith, but not -conveyed by the husband before marriage, nor of land sold, in good faith, after marriage, to satisfy ia 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 the land after satisfying the lien she may have dower out of such surplus of the proceeds, unless they were received or disposed of by the husband in his life time.” In this section it is expressly stated that the wife is not -entitled to dower in land which is sold in satisfaction of a lien or incumbrance created before marriage, or created by deed in which she joined, except, if there is a .surplus of the land, or proceeds of the land, after .satisfying the lien, she may have dower out of such surplus of the proceeds, unless -they were received or disposed of by the husband in his lifetime.
In Melone, etc. v. Armstrong, 79 Ky., 248, it is said: “This statute evidently contemplated that a sale might be made by the husband, and that he might sell the whole, or only so much as would satisfy the lien; but whether sold by the husband, or under the judgment of a court, if the¡ whole be sold bona fide, because there is a lien for the purchase money, and with a view to satisfy it in the manner deemed by the husband to be most beneficial to him, and with no design to deprive the wife of her potential right of dower, she will not be entitled to dower, although less than the whole would have satisfied the lien.”
In Ratcliffe v. Mason, 92 Ky., 190; 13 R., 551; 17 S. W., 438, it was held that, where land of the husband is sold in good faith to satisfy a lien for purchase money, the wife is not entitled to dower in the land, although it may have been sold for more than the amount of the lien, and that this is true whether the sale was made directly by the hus
It was held in Johnson v. Cantrill, 92 Ky., 59; 13 R., 497; 17 S. W., 206, that a widow is not entitled to dower in the land of the husband which has been sold to satisfy a lien for the purchase money.
Thése opinions relating to a case where land was sold to satisfy a lien for purchase money are identical in principle with the case where a mortgage lien is enforced because the statute is made to apply where sales are made directly by the husband, or under a judgment of court, to satisfy a lien or incumbrance, whether it is created by deed or mortgage in which she joins, or to satisfy a lien for purchase money. The only difference between the- rights of the wife in land which the husband owns, and incumbers by mortgage in which she joins, and land which the husband has purchased and which is incumbered by lien for purchase money, is that the lien for purchase money is created by the operation of law, as i;t attaches' when the land is conveyed and the purchase money remains unpaid, while in the case of a mortgage the potential right of dower exists, except when the wife has waived it by joining in the mortgage. When either of the two transactions take place, the wife’s rights in the land are exactly the same; the difference being that in the one case she waives her right, and makes it subordinate to the lien, and in the other the law determines it, and makes^ it subordinate to the lien. The fact that the wife is not a party to the suit is immaterial, because at the time of the enforcement of the lien she has no present interest in the
The plaintiff asserted no cause of action against the wife. He did not seek to appropriate her property for the payment of the debt, but only sought to subject the husband’s property, in which she, by the mortgage, had waived her potential right of dower, and, in effect, had consented that the husband might directly sell it, without her joining with him, to satisfy the debt; and what he could do, and failed to do, the court had a right to do for him. Had th.e plaintiff given the wife a bond, it could not have protected her against the act of the husband in getting the surplus proceeds, if any. It would have been an idle thing to have executed it.
In this case only so much of the land was ordered sold as was necessary to satisfy the judgment, and under which
It is a useless thing to make the wife a party to an action, because her potential right to dower may never ripen into a dower interest, as she may not survive her husband. One desiring to purchase land at a judicial sale can examine the record to see whether the wife has joined in the deed or mortgage, and made her potential right pf dower subordinate to the lien to satisfy which it is being sold. The purchaser must take notice of the condition of the record with reference to her action.
It has been suggested that she should have a right to show whether or not she joined in the mortgage before the land was ordered to be sold. So far as her rights are concerned, that is immaterial. If she has not executed a mortgage, and her potential right has ripened into a dower interest, it will then be time enough to show that she did not join in the mortgage waiving it.
It is suggested that the husband is interested in having the land bring as much as possible, and that it will bring more, if there is a judgment barring her right to dower. As she signed the mortgage, the purchaser is presumed to have examined the record, and to have concluded, under the opinions of this court, that her rights were subordinate to the plaintiff’s lien. If she had filed an answer, and successfully shown that she did not execute the mortgage, it would not have helped the husband, because the land would have brought less at the sale than it did bring.
Doubtless there are cases of other courts which hold the wife is a necessary party to an action to enforce a lien upon the husband’s property. They are not based upon a statute, as are the opinions of this court.
The previous opinion delivered herein is withdrawn. Judgment is affirmed.
Dissenting Opinion
dissenting opinion:
The petition for rehearing relied upon the cases of Tisdale v. Risk, 7 Bush, 141; Melone v. Armstrong, 79 Ky., 248; Ratcliffe v. Mason, 92 Ky., 190, 13 R., 551, 17 S. W., 438; Johnson v. Cantrill, 92 Ky., 59, 13 R., 497, 17 S. W., 206. Those cases were not overlooked on the former consideration of the case. But a reference to them will disclose that every one of them involved a sale of lands to satisfy a purchase-money lien. The statute being construed and applied provided that the wife should not be endowed of land of her husband, sold in good faith to satisfy a purchase-money lien thereon. Section 2135, Ky. St. Nor is she endowed of land sold by him, but not conveyed, before the marriage. No right of hers was or could be affected by the proceedings if either the land had been sold by the husband before the marriage, but not conveyed, nor if it was sold in good faith to satisfy a purchase-money lien. For her right as potential do.wress had never attached to the land. However, we apprehend that even in such state of case it would not be improper to join thei wife as a party defendant, under proper allegations, so> that the complete title might be assured to the purchaser.. But in the matter of a mortgage in which she has joined,, or which purports to be signed by her, the case admits that, she had a right in the premises, but asserts that she has: divested herself of it by an act which, under the statute, when executed by her before certain officiate and under certain formalities, extinguishes her right as against the plaintiff’s debt. That is true, but it is no truer than that the husband is by a similar act alone divested of his right in the land as against that debt. Why should not she have her day in court, as well as he, before their rights shall be foreclosed? Perchance, she did not sign the mortgage,
For these reasons, and those stated in the original opinion, I can not concur in the opinion now filed by the majority of the court in this case. '
Petition by appellant for rehearing overruled.