114 Ky. 132 | Ky. Ct. App. | 1902
Opinion of the Court by
— Affirming.
In 1897 appellee C. C. Smith was (•lie owner of a tract of 147 acres of land in Warren county, upon which lie resided, with his family, and which was mortgaged to Mrs. Payne for $2,009. Potter, Matlock & Co., bankers, obtained a judgment against Smith for $750, the execution for which was levied upon this land, and the ianid sold by the sheriff, subject to Mrs. Payne’s mortgage, the execution plaintiffs becoming the purchasers for $508. Afterwards Mrs. Payne brought suit to enforce her mortgage lien for $2,000 and interest, making Potter, Matlock & Co. and other creditors defendants, who set up their excution lien for $508 and interest. In this proceeding, on motion of Smith, a homestead of 17% acres was set apart to him, which was exempt from sale for any of his debts except the debt to
A few-mmutes afterwards P. J. Potter placed an execution against O. C. Smith for $1,445 in the hands of the sheriff for levy. On the same day that the deed was executed the Warren Deposit Bank brought an attachment suit upon a judgment and return of “No property” for $2,450 against G. O. Smith, and caused garnishee process to be served upon Skiles. Two days later, Joe H. Smith’s and P. J. Potter’s executions were indorsed by the sheriff as levied' on the land May 2?. 1800, Potter’s levy being subject to-Smith’s. P. J. Potter, Joe H. Smith, Mrs. Smith, and Skiles became parties to and set up their various claims in the-attachment suit of the Warren Deposit Bank against Smith,, the judgment in which is now before us for review. Potter-claims that the transaction between Smith, Skiles and the bank was a redemption by Smith, whereby Smith reacquired' title to the land at a time when Potter’s execution was in the sheriff’s hands in full force; that he thereby acquired a lien upon the land, and the levy of his execution related back to the time Smith acquired title by his redemption, and that Joe H. Smith’s execution was void, for reasons which need not be here considered.
After the sale of the equity of redemption, C. G. Smith had no property in the land which was subject to his debts. He had a personal right to redeem, which might be exercised at any time within one year from the date of the first sale. This right could not be exercised by his cred
It becomes unnecessary, therefore, to inquire into the question of priority between the executions of Joe H. Smith and Potter, or whether Skiles knew or did not know of the existence of-the Potter execution. He had the right to purchase Smith’s right of redemption, and take a deed! from him, when the land was redeemed. In this transaction he obtained no esiaté that either execution could reach. Nor was there any lien upon what he obtained.
But the obligation to Mrs. Smith presents a different question. She had no dower in the land, so far as the Payne mortgage debt was concerned. 'She had released her dower right as to that. What remained to' her was the right of compensation for her potential right of dower in the proceeds above what was necessary, to pay that debt. She could not prevent the sale of the land, free from her dower, in the' suit to enforce the mortgage; and it was in fact so sold. The utmost to which she could be entitled .was compensation for the value of her right of dower in 'that part of the land not necessary to the payment of that debt, though the proceeds of that part of the land were ■obtained by a sale of the husband’s personal right of redemption. The learned special judge below took the view ■that the transfer of the right of redemption was the consideration for the. obligation given to Mrs. Smith, and that that obligation was in' reality for Smith’s benefit, and, in consequence, was subject to the attachment for.Smith’s debt. Upon the record before us we are not able to reach
Extended opinion by Judge O’Rear granting petition for rehearing as to the interest of Mrs. Mamie Smith, appellant :
The opinion delivered herein November 13, 1902, in so far as it treats of the rights of Mrs. Mamie Smith, the wife of the debtor whose property was involved in this litigation, is withdrawn. A rehearing is granted to her. It will be borne in mind that the land of her husband had been sold under execution. Failing to bring two-thirds of its. appraised value at such sale, his equity of redemption was. also sold under execution. This sale was expressly authorized by statute. The same statute also gives to such, debtor the-right to redeem from both sabs within a year from the date of the first sale.. See sections 1684-1086, Kentucky Statutes. The executions under which this land was sold were against the husband alone. Any sale and conveyance of the land passed the title of the husband, necessarily subject to the inchoate right of dower of the wife therein. Although a part of the land was taken to satisfy a mortgage in which she had joined, relinquishing her dower so far as the mortgage debt was concerned, yet as to the residue of the land, and as to the proceeds of the sale of such residue, where the whole tract was sold under these proceedings, she continued to -have her inchoate right of dower. Section 2135, Kentucky Statutes, is: “The wife shall not be endowed of land sold, but not conveyed by the husband before marriage, noir of land sold, in good faith, after marriage, to satisfy a lien or encumbrance created before marriage or created by deed in which she had 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 judgment, in so far as it subjects any sum agreed to be paid to Mrs. Mamie Smith for her dower by Skil.es to the creditors of G. C. Smith, is reversed,,and the cause is remanded, with direction to judge the whole of that sum to Mrs. Smith.
Judge Settle not sitting.