Duncan v. Jenkins

• Decision Date: 18 May 1926
• Citation: 215 Ky. 543,286 S.W. 783
• Parties: DUNCAN v. JENKINS ET AL.
• Court: Kentucky Court of Appeals

286 S.W. 783

215 Ky. 543

DUNCAN v. JENKINS ET AL.

Court of Appeals of Kentucky.

May 18, 1926

Rehearing Denied Sept. 28, 1926.

Appeal from Circuit Court, Union County.

Suit by W. L. Duncan against Nellie Lee Jenkins and others. From a judgment of dismissal, plaintiff appeals. Affirmed.

Davis &amp Jones, of Morganfield, for appellant.

Flournoy & Flournoy, of Morganfield, for appellees.

CLAY J.

On December 22, 1919, W. L. Duncan sold and conveyed to Nellie Lee Jenkins a small tract of land in Union County. No part of the purchase money was paid in cash, but Mrs. Jenkins and her husband executed four notes, which were secured by a lien on the land conveyed, and also by a mortgage on other land owned by Mrs. Jenkins. Though the mortgage was properly executed and acknowledged by Mrs. Jenkins and her husband, his name did not appear in the body of the mortgage.

Mrs Jenkins and her husband having defaulted in the payment of the notes, W. L. Duncan brought this suit to enforce his vendor's lien, and to reform the mortgage on the ground of mistake. To that part of the petition asking a reformation of the mortgage a demurrer was sustained, and to that extent the petition was dismissed. Plaintiff has appealed.

The facts on which a reformation is sought are these: It was orally agreed between the parties that, as no cash payment was made on the land purchased, the notes given for the purchase price should be secured both by a lien on the land and by a mortgage on a 24 1/2-acre tract owned by Mrs Jenkins. The trade was carried out by the execution and delivery of the deed by the grantor and the execution and delivery of the notes and mortgage by Mrs. Jenkins and her husband. The deed not only provided that the notes were secured by a lien retained on the land conveyed, but contained the following provision:

"To further secure these notes above mentioned the said Nellie Lee Jenkins and her husband, Oscar Jenkins, this day executed and delivers to said Duncan a mortgage on their 24 1/2 acres of land, which is bounded as follows: [Here follows description.]"

Also each of the notes provided:

"And to further secure this note a mortgage of even date is this day executed and delivered on the 24 1/2 acres of land."

Furthermore, the mortgage which Mrs. Jenkins and her husband signed and acknowledged was executed for the purpose of securing the notes, and contained an accurate description of the land proposed to be mortgaged. The mortgagors not only agreed, but intended and attempted, to execute a valid mortgage, but by mutual mistake of the parties and the draftsman the name of Mrs. Jenkins' husband was omitted from the body of the mortgage. For these reasons the chancellor was asked to correct the mistake and make the mortgage conform to the agreement and intention of the parties.

Section 506, Kentucky Statutes, is as follows:

"The conveyance may be by the joint deed of husband and wife, or by separate instrument; but in the latter case the husband must first convey, or have theretofore conveyed. The deed as to both husband and wife may be acknowledged or proven and recorded as heretofore, or by this act provided."

This section has been construed in numerous cases, and it has been uniformly held that the deed of a married woman, though subscribed and acknowledged by her husband, was void where his name did not appear in the body of the deed, and he had not previously made a separate conveyance, and the rule is applicable to a mortgage, as well as a deed. Brady v Gray, 31 S.W. 734, 17 Ky. Law Rep. 512; Weber v. Tanner, 64 S.W. 741, 23 Ky. Law Rep. 1107; Simpson v. Smith, 142 Ky. 608, 134 S.W. 1166; Mays v. Pelly (Ky.) 125 S.W. 713; Elliott, etc., v. Scoville, etc., 144 Ky. 584, 139 S.W. 806; Page v. Stave Co. (Ky.) 125 S.W. 172; Hellard v. Rockcastle Mining Co., 153 Ky. 259, 154 S.W. 401; Hatcher v. Andrews, 5 Bush, 561; Beverly v. Waller, 115 Ky. 600, 74 S.W. 264, 24 Ky. Law Rep. 2505, 103 Am.St.Rep. 342; Newby v. Cox, 81 Ky. 58; Daniels v. France, 168 Ky. 749, 182 S.W. 919; Farley v. Stacey, 177 Ky. 109, 197 S.W. 636, 1 A.L.R. 1181. The question sharply presented is whether a court of equity will reform and thus give legal effect to the mortgage of a married woman which is void because of a failure to comply with the requirements of the statute. The question was answered in the affirmative by the Supreme Court of Indiana in Collins...