Withers, &C., v. Pugh

• Citation: 91 Ky. 522
• Court: Kentucky Court of Appeals
• Decision Date: 09 May 1891
• Parties: Withers, &c., v. Pugh.

Page 522

91 Ky. 522

Withers, &c., v. Pugh.

Court of Appeals of Kentucky.

May 9, 1891.

APPEAL FROM HARRISON CIRCUIT COURT.

WARD & KIMBROUGH FOR APPELLANTS.

FORMAN & CASON FOR APPELLEE.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

The only question made by counsel in this case is whether the writing purporting to be a mortgage divested appellants, husband and wife, of a homestead right in the land described therein.

So much of the writing as is material we copy: "Whereas, Hawkins Withers, being indebted to Margaret Pugh, * * for which first party has executed his * promissory notes of even date. * Now, for the purpose of securing the payment of said sums, * * the undersigned mortgagors do hereby mortgage the following described property: * * Said property is warranted free from incumbrance and against any claim. To have and to hold said property to said Margaret Pugh, * provided that if * Hawkins Withers * should pay said sum, * * then this mortgage * * shall be null and void, otherwise to remain in full force. And said grantors hereby especially waive and release all right or claim which they have which arises out of, or is given by, the exemption laws of Kentucky, in and to the property hereby conveyed, and these covenants and conveyances are especially made part of this mortgage."

The writing was signed by Hawkins Withers and Martha Withers, and, as appears from the clerk's certificate, was acknowledged before him "by Hawkins Withers and Martha Withers, his wife, parties grantors thereto, to be their act and deed."

The grounds upon which it is argued the mortgage is not effectual for the purpose in question are that the name of Martha Withers does not appear in the body of it, and that as the indorsement made by the deputy clerk did not in terms state Martha is, or acknowledged the mortgage as, the wife of Hawkins Withers, the principal clerk was not authorized to so state in his certificate.

According to section 13, article 13, chapter 38, General Statutes, a mortgage release or waiver of a homestead exemption is valid if the same be in writing subscribed by the defendant and wife, and acknowledged and recorded in the same manner as conveyances of real estate. But a mortgage release or waiver of a homestead exemption, as well as grant of an estate in real property, signifies an act or deed done by the party to be affected thereby. Consequently, the mere signature of a married woman to a mortgage by her husband is no evidence of a...