Beverly v. Waller

• Decision Date: 20 May 1903
• Citation: 74 S.W. 264,115 Ky. 596
• Parties: BEVERLY v. WALLER et al.
• Court: Kentucky Court of Appeals

74 S.W. 264

115 Ky. 596

BEVERLY v. WALLER et al.

Court of Appeals of Kentucky.

May 20, 1903

Appeal from Circuit Court, Henderson County.

"To be officially reported."

Action by A. Waller and others against Sarah P. Beverly. From a judgment for plaintiffs, defendant appeals. Reversed.

Brown &amp Vance, for appellant.

M. C. &amp G. D. Givens, for appellee Waller. Montgomery Merritt, for appellee Margaret A. Buckman. S. V. Dixon and Yeaman &amp Yeaman, for appellees M. Young and Lula and Clarence Faulkner.

BARKER J.

On the 15th day of February, 1868, R. G. Beverly and L. W. Powell were the joint owners of a large tract of land in Henderson county, Ky. On that day Beverly mortgaged his undivided interest in the land to James White to secure the repayment of $2,000 in gold. His wife, the appellant, Sarah P. Beverly did not sign this mortgage, nor is her name in any way mentioned therein. On the 17th day of July, 1870, R. G. Beverly mortgaged his interest in the land to Thomas Posey to secure to Posey what he owed him as guardian, and also for the purpose, as recited in the mortgage, of indemnifying W. B. Woodruff and George A. Sugg from liability upon his bond as guardian of Thomas Posey. Appellant's name nowhere appears in the body of this second mortgage, but she signed and acknowledged it before the clerk of the Henderson county court. On the 16th day of December, 1870, L. W. Powell having died, his heirs entered into deeds of partition with R. G. Beverly of the lands jointly owned by them and him, whereby they conveyed to him and to his wife, Sarah P. Beverly, one-half of the lands jointly owned. Afterwards Thomas Posey instituted an action in the Henderson circuit court for enforcement of his mortgage lien, making R. G. Beverly and appellant and James White defendants. All were served with process. White answered, setting up his mortgage, and making his answer a cross-petition against Beverly and wife, and prayed for an enforcement of his lien. Both Beverly and appellant were served with process in this cross-action. In neither the original nor the cross-petition was any mention made of the inchoate dower interest of appellant. In both of these pleading it is alleged, in substance, that, while in the deed of partition from Powell's heirs the land was conveyed to R. G. Beverly and Sarah P. Beverly, his wife, jointly, yet, as against the mortgagees, the wife had no interest save as the wife of R. G. Beverly, and, as to them, she was a mere volunteer. Appellant made no answer to these actions, but permitted judgment to go by default. The judgment enforcing the lien of the plaintiff and cross-plaintiff upon the land involved in the action does not mention the inchoate dower right of appellant, or in any way seek to sell or bar it. Under this judgment, the mortgaged land was sold by the commissioner of the court, and purchased by Milton Young and J. W. Buckmann, to whom it was conveyed by commissioner's deed, and from whom it has successively devolved by conveyance to the present owners, the appellees in this action. In 1902, R. G. Beverly died, and his widow, the appellant, Sarah P. Beverly, thereupon instituted this action against the appellees, the owners of the land, to recover of them the value of her now vested dower interest therein. The judgment enforcing the mortgages of Posey and White having been pleaded as a bar to appellant's action for dower, she demurred to the plea, and, this having been overruled by the court, she declined to plead further; whereupon her petition was dismissed, and she has appealed.

The one question for adjudication on this appeal is whether or not appellant's inchoate right of dower in the land was barred by the judgment rendered enforcing the mortgage liens of Posey and White. Although appellant signed and acknowledged the mortgage to Posey, as her name does not appear in the body of that instrument, she stood toward it as if she had not signed. In the case of Hatcher and Wife v Andrews, 5 Bush, 561, this court said: "The deed of Geiger to Elba Holden of the two town lots, and through which the title of these vendees is derived, purports a conveyance alone by the husband; but Annie, his wife, signed the deed and acknowledged it, together with her husband, before the county clerk, who certified it, without stating what she intended to convey. *** The deed from Geiger purports no conveyance of anything from his wife, nor even that she was a party to it. Therefore it is as wholly insufficient as to her as though she had never signed it. Holden is the sole grantor in his deed, and, though the wife signed with him the attesting clause of the deed, yet it does not purport, by apt language, to convey any interest on her part, and is wholly insufficient to bar her of a dower right." Appellees contend that, although appellant's inchoate right of dower was not barred or disposed of in any way by the mortgages, yet, because she was made a defendant, and properly summoned in the action enforcing the liens, and allowed judgment to go by default, she is barred by that judgment from setting up any claim to dower against the land sold in the action. It is true that, as a general proposition, a judgment against a defendant who has been duly summoned is res adjudicata as to all defenses which either were or might have been set up as a bar to the cause of action set forth in the petition. The cases cited by appellant come within this principle. The case of Harpending's Executor v. Wylie, 76 Ky. 160, was an action to foreclose a mortgage which had been executed by a husband and wife. Judgment by default was rendered, and the property directed to be sold to satisfy the debt. After the death of the husband, a rule having been awarded against the widow and heirs to show cause why judgment should not be revived, the widow responded that at the time of the execution of the mortgage her husband was a bona fide housekeeper with a family; that he then resided with his family on the mortgaged premises, and continued to reside thereon up to his death, and that the family was still residing thereon; that she had not mortgaged, conveyed, relinquished, released, or in any way disposed of the right of her self and infant children to a homestead, and they asked that a homestead be allotted to them in the property. This court held on appeal that the original judgment necessarily passed upon the validity of the mortgage given by the husband and wife, and that question became res adjudicata; that the wife derived her claim to the homestead through the husband, and not from the statute, and, inasmuch as his right of homestead had been adjudged adversely to him in the suit to foreclose the mortgage, he thereby lost it, and at the time of his death he had no homestead in the property. It is clear that, if the husband had a homestead right in the mortgaged premises, it was a defense to the action against him, at least to the extent of $1,000, and, being defendant, he was required by the rule either to set it up or be barred by the judgment in default....