40 Ky. 257 | Ky. Ct. App. | 1841
delivered the Opinion of the Court.
This writ of error brings up for revision, a decree for allotting dower to Honoré Lowe, (formerly Kelly,) as the widow of Thomas Kelly, deceased, in a house and lot in the city of Louisville.
Kelly bought the lot, when vacant, for $600, payable at a future time, and commenced the erection on it of a large brick dwelling house, which was partially completed in September, 1833, when the vendor conveyed to him the legal title, reserving, in the deed, a lien for the consideration, the whole of which still remained unpaid.
The building mechanics and material men, claiming a lien on the house for the amount of their respective bills, in virtue of the statute of 1831, (Sess. Acts, p. 118,) and apprehending that Kelly was insolvent, (as seems to have been the fact,) filed a bill in Chancéry for enforcing their liens, and during the pendency of that suit, to-wit;
The lien for the $600 was coeval with the inception of Kelly’s equitable right to the lot. Kelly acquired his equity subject to that lien, and his wife’s initiate right to dower could not 'have been better or greater than her husband’s original right to the lot. The title and the lien being connate, there never was any right in Kelly or his wife, unincumbered by the lien; and the conveyance to Kelly, having expressly reserved the lien, his legal right, and that of course also of his wife, were subject to that incumbrance,. just as their equitable rights had always been. We cannot doubt, therefore, that her claim to dower in the lot is posterior, in fact and in law, to the reserved lien for the original consideration.
Nor have we any doubt that her title 'to dower in the dwelling house is equally subject to the legal liens of the mechanics and material men. Her claim to dower in the house could not have been initiated before there was any house, or part of a house, and the lien given by the statute would be unavailing and illusory, unless it commenced with the commencement of the building and progressed with the progress of the erection, pari passu. The lien was inherent in, and co-extensive with the work and materials. Every part of the work was done, and
Then, had the house been sold to Marshall, under a valid decree for enforcing the statutory lien, Kelly’s widow would have had no available right to dower in it, because the proceeds of the sale did not entirely discharge the debts, for securing which, the lien was given by law.
And as the record exhibits intrinsic evidence that the sale made by the trustees was fair, and for a full price, it seems to us that Mrs. Lowe has so far failed to manifest, to a Court of Equity, a just and enforcible claim to dower, to any extent, in the dwelling house.
If the lot, as unimproved, be worth more than the original consideration, ($600,) she is entitled to be endowed of one third of such excess. This, in our opinion, is the utmost of her dowable interest, unless the house also, as sold by the trustees, was worth more than enough to discharge all the statutory liens, to the extent of which excess, if there be any such, she might be dowable of one third.
Therefore, it is the opinion of this Court, that the Chancellor’s decree herein, be reversed, and the cause remanded, for such further proceedings and decree, as may be proper, consistently with the foregoing principles.