Arnett v. Salyersville Nat. Bank

• Decision Date: 17 November 1931
• Citation: 46 S.W.2d 124,242 Ky. 216
• Parties: ARNETT et ux. v. SALYERSVILLE NAT. BANK.
• Court: Kentucky Court of Appeals

46 S.W.2d 124

242 Ky. 216

ARNETT et ux. v. SALYERSVILLE NAT. BANK.

Court of Appeals of Kentucky

November 17, 1931

As Modified on Denial of Rehearing Denied March 8, 1932.

Appeal from Circuit Court, Magoffin County.

Action by the Salyersville National Bank against Kelse Arnett and wife. Judgment for plaintiff, and defendants appeal.

Affirmed.

Fred Howes, of Paintsville, for appellants.

H. H Ramey, of Salyersville, for appellee.

WILLIS J.

The Salyersville National Bank instituted an action in equity aginst Kelse Arnett, Myra Arnett, Challie Conley, W. S Adams, and John Reed to recover a judgment upon a note for $2,250, and to enforce a mortgage lien on certain real property in Magoffin county. It was alleged that the defendants had executed to the plaintiff a promissory note by which they promised and agreed to pay it, eight months after date, the sum of $2,250, with interest. It was further alleged that, when the note was executed and to secure its payment, as well as to indemnify John Reed, Challie Conley and B. P. Holbrook, who were sureties on the note, a mortgage was given covering three separate parcels of land. The mortgage was executed by Kelse Arnett and his wife, parties of the first part, to John Reed, Challie Conley, and B. P. Holbrook, parties of the second part. It was recited therein that it was given to secure the payment of the note to the Salyersville National Bank or any renewal thereof. The mortgage purported to convey all right, title, and interest in the property for the purpose aforesaid, and contained a covenant of general warranty. The note was renewed from time to time until Holbrook declined to unite in a further renewal, and, with the consent of all parties, W. S. Adams signed the note in his place. A new mortgage was executed to the same parties, except the name of Adams was substituted for that of Holbrook, but it disappeared from the clerk's office before it could be recorded.

Myra Arnett defended the action as against her upon the ground that one of the tracts of land embraced in the mortgage, which constituted her homestead, was included therein without her knowledge, and the instrument was procured from her by false statements and representations in so far as it covered or purported to embrace the homestead property; that she was illiterate and signed the mortgage by mark, and that she was deceived and misled by the misrepresentations, believing that the mortgage covered only the lots and did not include the homestead; that the mortgage was not read or explained to her by the deputy clerk who took her acknowledgment; and that she was unaware of the fact that her homestead was put in lien by the mortgage.

The circuit court found in favor of the plaintiff, and entered a judgment enforcing the mortgage upon all the property described therein. From that judgment this appeal is prosecuted.

It is argued that the first mortgage was invalid to pass title to the homestead because Mrs. Arnett did not sign or acknowledge it, but the answer presented no issue as to the execution of the mortgage. It sought merely to eliminate therefrom the homestead land on the ground that its inclusion therein was procured by false representations. Moreover, the fact is fully established that the mortgage was executed and acknowledged by Mrs. Arnett. But it is argued that the mortgage, even though valid, was insufficient to waive the homestead exemption because it did not contain a specific expression for that purpose. It has been held that a mortgage, without a covenant of warranty, in which the wife joins solely for the purpose of conveying her dower, is not sufficient to relinquish her right to the homestead. Weir's Trustee v. Weir, 138 Ky. 788, 129 S.W. 108; Wing v. Hayden, 10 Bush, 276; Herbert v. Kenton Building & Saving Ass'n, 11 Bush, 296; Hayden v. Robinson, 83 Ky. 615; Thorn v. Darlington, 69 Ky. (6 Bush) 448; Hooser v. Smith, 10 Ky. Op. 611. But it is firmly established that a mortgage by a husband and wife conveying the entire estate, with a covenant of warranty, is sufficient to relinquish the homestead right, and a specific mention thereof is not required. Hays' Adm'r v. Froman, 103 Ky. 350, 45 S.W. 87, 20 Ky. Law Rep. 53; McGrath v. Berry, 13 Bush, 391; Whitt v. Bailey, 59 S.W. 514, 22 Ky. Law Rep. 1015; Robbins v. Cookendorfer, 10 Bush, 629; Bray v. Ellison, 83 S.W. 96, 26 Ky. Law Rep. 1041; Long v. Branham, 99 S.W. 271, 30 Ky. Law Rep. 552; Withers v. Pugh, 91 Ky. 522, 16 S.W. 277, 13 Ky. Law Rep. 104.

The appellant insists that the cases are in conflict, and that this case is governed by the ones first mentioned. But a careful consideration of the opinions cited discloses a clear distinction in the facts, and manifests the reasons for the application of different rules in the varying situations. The mortgage involved upon the present appeal falls within the line of cases last cited. It conveyed the entire estate of the grantors, and every interest therein, which necessarily embraced the homestead interest.

It was alleged in the petition that the sureties who were named as parties of the second part in the...