94 Ky. 458 | Ky. Ct. App. | 1893
delivered the opinion oe the court.
The appellant and her husband, at some time prior to 1876, conveyed, by way of mortgage, the real estate in which she now claims dower. In the year named, by proceedings in bankruptcy, the property was sold to satisfy the mortgage liens. It appears that there were, in fact, several mortgages, in all of which the wife joined, and expressly relinquished her inchoate right of dower. The property was sold for the amount of the mortgage debts, which was its full value as disclosed by the proof. The assignee in bankruptcy
Section 5, article 4, chapter 52 of the General Stat-‘ utes, provides that the wife shall not be endowed of' land sold to satisfy a lien or incumbrance created by deed in which she joins or to satisfy a lien for pur-: chase 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 life-time.
It is urged by the appellee that by the term “deed” in this statute is meant “mortgage,” or rather that the former embraces the latter, and that the appel lant, having joined in the mortgage or deed creating the lien, to satisfy which the sale was made, is not endowed of the land. There is much plausibility in this construction. The intention certainly seems to’ be that if the wife joins in a conveyance creating a' lien, and the land so encumbered be sold to satisfy' it, she shall not be endowed thereof, but may have' compensation out of the surplus, &c.. A deed, in the ordinary sense of that term, is not what is meant'
So it would seem if it be sold in good faith, because there is a lien for a debt created by a deed of mortgage, in which the wife has joined; and with a view to satisfy it, she should not be entitled to dower in the absence of any design to deprive her of her inchoate right. The statute makes no distinction between sales, made under an order of court •and those made by the owner ; and liens ■ for purchase money are placed In the same class witli liens •created by deed in which the wife joined. She oc
Judgment affirmed.