Davis v. Jenkins

• Decision Date: 06 October 1892
• Citation: 93 Ky. 353,20 S.W. 283
• Parties: Davis v. Jenkins et al.
• Court: Kentucky Court of Appeals

20 S.W. 283

93 Ky. 353

Davis v. Jenkins et al.

Court of Appeals of Kentucky.

October 6, 1892

Appeal from circuit court, Hardin county.

"To be officially reported."

Petition of L. A. Jenkins and another against Emily Davis for a decree vacating a judgment foreclosure against their homestead. The petition was granted, and defendant appeals. Reversed.

Bennett J.

In 1883, S. H. Jenkins, husband of the appellee L. A. Jenkins and the said appellee L. A. Jenkins, executed a mortgage on a house and lot, the property of S. H. Jenkins, situated in West Point, Hardin county, Ky. to secure the payment of borrowed money. Thereafter S. H. Jenkins, in contemplation of insolvency, made an assignment for the benefit of creditors. The assignee instituted suit in the Hardin circuit to have the estate settled and distributed among the creditors. Emily Davis, as creditor and mortgagee, was made defendant to that action. She instituted a cross action against S. H. Jenkins and the appellee L. A. Jenkins, by which she sought to have her mortgage lien on the house and lot enforced. Summons on the cross petition was duly executed on S. H. and L. A Jenkins, and judgment by default was thereafter rendered on the cross petition against S. H. and L. A. Jenkins for said mortgage debt, and foreclosing the mortgage lien on the house and lot to satisfy said debt. More than a year thereafter and after the term of court at which the judgment foreclosing the mortgage was rendered, the appellee by petition made known to the court that her husband, S. H. Jenkins, had been since the execution of the mortgage adjudged a lunatic, and was then confined in the lunatic asylum. She also alleged that her name did not appear in the granting clause of the mortgage and that her husband had procured her signature thereto and acknowledgment by duress; hence she and her infant children were entitled to a homestead in said house and lot. The court, upon final hearing of that part of the case, set aside the judgment theretofore rendered foreclosing the mortgage, and adjudged that L. A. Jenkins, by reason of the matters set up by her, had not relinquished her homestead in said house and lot; consequently allowed her a homestead therein. From that judgment Emily Davis appeals.

It is true that L. A. Jenkins' name does not appear in the clause granting the title to said house and lot. She had no title thereto. But she did have an inchoate right to homestead and dower in said house and lot, which she could not be deprived of except by her own act, exercised in the manner pointed out by the statute. The statute ^[1] upon these subjects provides that the right to a homestead shall not be waived, nor dower relinquished, except by a written conveyance thereof, signed by the husband and wife, and acknowledged by them, and recorded, etc. Now, the title to the real estate was in the husband, S. H. Jenkins; and the wife, L. A. Jenkins, owned no interest therein whatever. She was only entitled to an inchoate right to homestead and dower therein, which she could waive and relinquish by deed signed by herself and husband for that purpose, and duly acknowledged and recorded, etc. Now, if she joins in that part of the body of the deed conveying the homestead and dower by apt words to convey said...