| Ky. Ct. App. | Oct 29, 1891
delivered the opinion of the court.
By deed, executed December 24, and .acknowledged for record December 26, 1856, J. D. Wallace conveyed to C. T. Ratcliffe and Gr. W. Ratcliffe, brothers, six hundred and eighty-one acres of land, in consideration of which $8,000 was to be paid January 1, 1857, and the residue of purchase money in equal installments, for which they executed notes.
The two purchasers conducted farming business on the land as partners under the firm name of Ratcliffe & Bro.,
In 1869, pursuant of a judgment rendered in consolidated actions instituted by the trustee named in the deed of trust, and by Edmunds & Stege, each of whom had a mortgage on the land executed by Ratcliffe & Bro., it was sold and by Commissioner’s deed conveyed to W. B. Mason, the purchaser, under whom appellee, M. A. Mason, acquired and has title.
In 1887 appellant, widow of C. T. Ratcliffe, then recently deceased, brought this action praying for allotment of her dower in the land and recovery of rents.
By section 2, article 4, chapter 52, General Statutes, it is, as was substantially by the Revised Statutes, provided .as follows : “ After the death of the husband the wife shall be endowed for her life of one-third of the real estate of which he, or any one for his use, was seized of an estate in fee-simple at any time during coverture, unless her right to such dower shall have been barred, forfeited or relinquished.”
But it is contended, notwithstanding that provision, appellant is not entitled to dower in any part of the land in question, denial of her right being placed upon two grounds:
1. That the entire proceeds of sale of the land in 1869 were exhausted in paying partnership debts of the firm •of Ratcliffe & Bro., including a balance of the original purchase money.
Even under the section quoted the wife’s dower right is always subiect to the same encumbrances and equities
But real estate, the title of which has been conveyed to the husband, should never be treated as partnership property to the exclusion of the widow’s dower right, unless all the relations and conditions upon which the-equitable doctrine may be enforced are clearly and fully shown to exist.
The attitude, in which C. T. & G. W. Batcliffe were placed by the deed of December 24, 1856, was that of co-owners of the land, not partners, and besides, the purchase money was agreed to be paid and notes therefor • executed by them individually, not by the firm of Batcliffe & Bro. It thus being the case of execution and delivery of a deed, the legal effect of which was to invest the husband of appellant with the absolute title to an
It is true there is evidence showing the firm of Ratcliffe & Bro., subsequent to delivery of the deed, paid some of the purchase money, and that the notes and mortgages on the land were executed to Edmunds & Stege for borrowed money applied to some extent that way. But it does not appear the firm was a party to the purchase,, or primarily bound to pay any part of the consideration; in fact the evidence does not clearly show the partnership between the vendors even existed when the land was-purchased and conveyed, but, though indefinite and meagre on the subject, tends to show the contrary. Moreover it does not necessarily follow where two or more tenants in common or joint tenants of a farm work their common property together as partners, contributing to. the expense and sharing all profits and losses equally, that the land is in fact or was intended to be partnership property. (Bindley on Pai’tnership, volume 1, 651.) On the contrary a partnership in the farming business, and personal property used in carrying it on is entirely consistent with a joint ownership of the land, and consequently, when it is purchased, agreed to be paid for and title conveyed to them individually, it should be regarded as so acquired and held in the absence of satisfactory evidence it was intended to be partnership property. But when the title is once vested in the husband, the dower right of the wife can not in any case be defeated by subsequent appropriation of the land, for partnership purposes by a firm not in existence when it was acquired.
2. The second ground involves construction of section 6, article 4, chapter 47, Revised Statutes, now part of the General Statutes, as follows: “ The wife shall not be endowed of land sold but not conveyed by the husband upon marriage; nor of land sold bona fide after marriage to satisfy a lien or encumbrance 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 sale after satisfying the lien, she shall have dower or compensation out of such surplus, unless the surplus proceeds of sale were received or disposed of by the husband in his lifetime.”
At the time the deed of trust was executed there was still a large balance of purchase money unpaid, and a sale of the land under the judgment mentioned was necessary to satisfy that debt, as would have been the case if the husband of appellant had not made the deed. So whether in such case a sale be made in pursuance of a deed of assignment, or directly by the husband, it must, in meaning of the statute, be regarded as made in good faith; for that which a person is legally bound to do, as appears to have been the position of appellant’s husband, can not be said to have been done in bad faith. Nor does it prejudice a purchase of land under such circumstances, that the husband sells the land for more than the amount of the lien. (Melone v. Armstrong, 79 Ky., 248" court="Ky. Ct. App." date_filed="1881-02-15" href="https://app.midpage.ai/document/melone-v-armstrong-7131158?utm_source=webapp" opinion_id="7131158">79 Ky., 248.) It seems to be also settled that in case of a judicial sale, the wife can not look to the purchaser, when the land has sold for more than necessary to satisfy the lien, her only claim being against distributees who have received the surplus.
According to the plain reading of the section quoted, as well as construction heretofore given by this court, appellant is without remedy against the present owner of the land, for it is in express terms provided that in such case as this the wife must look for her dower or compensation to the surplus proceeds of sale left after satisfying the lien.
Judgment affirmed.