Honaker v. Cecil

• Decision Date: 09 September 1886
• Parties: HONAKER and Wife v. CECIL, Sr.
• Court: Kentucky Court of Appeals

1 S.W. 392

84 Ky. 202

HONAKER and Wife v. CECIL, Sr.

Court of Appeals of Kentucky.

September 9, 1886

Appeal from Pike circuit court.

York &amp Ferguson, for appellants, J. Honaker and Wife. Thos. R Brown, for appellee, C. Cecil, Sr.

BENNETT J.

The appellants, as husband and wife, filed their petition, in the Pike circuit court, against appellee, for the purpose of recovering a homestead in a tract of land which they allege had been sold under a decree of the Pike circuit court foreclosing a mortgage purporting to have been executed by appellants, as husband and wife, to appellee's assignors. Appellants allege that appellee, as assignee of said judgment, purchased said land at its sale under said decree of foreclosure, and was put in possession of it by writ of possession. Appellants were summoned to answer said petition of foreclosure, but failed to appear and make defense to the action. It is evident that said mortgage, though not copied in the record, by apt words covered and conveyed appellants' right of homestead, if any they had, in said land. Appellants so treat it. This court, for the purposes of its decision, will do likewise.

Although said mortgage, apparently duly acknowledged by appellants, conveyed their homestead in the said land, yet they made no defense to the suit instituted against them for the purpose of subjecting said land, including their right of homestead, to the satisfaction of the mortgage debt, nor do they give any reason for not doing so. They seek now to avoid the legal affect of said mortgage by charging that appellant Malinda Honaker "never acknowledged said mortgage separate and apart from her husband, but in his presence." As said appellants give no reason for not making this defense to the suit of foreclosure, nor do they charge that said acknowledgment was fraudulently obtained, nor do they seek to review, vacate, or modify the judgment of foreclosure, they seem to plant their right to recover their homestead independently of the fact that the court had already adjudicated that matter against them. In other words, they treat that adjudication as void, and rely upon the cases of Wing v. Hayden, 10 Bush, 276, and McGrath v. Berry, 13 Bush, 391, in support of that view. Those cases are not analogous to this one. The difference is essential.

In the case of Wing v. Hayden the husband had mortgaged his land, which embraced his homestead, but his wife did not join in the mortgage. She was no party to it for any purpose. Judgment was obtained foreclosing the mortgage, and the property sold to satisfy the mortgage debt. Afterwards the husband and wife brought suit against the purchaser to recover a homestead in the land sold under said judgment. The purchaser pleaded the judgment in bar of Wing's right, etc. This court held that, under the statute exempting to bona fide housekeepers, with a family, a homestead, the exemption could be waived only in the manner pointed out by the statute, and any attempt to waive it in any other way would be void; and the mortgage being before the court, and not showing a waiver of the homestead in the manner pointed out by the statute, any default decree rendered by the court, attempting to establish a waiver of the right upon any other ground, would be a nullity, and therefore not a bar to the...