Moore v. Moore

• Decision Date: 04 September 1890
• Parties: MOORE et ux. v. MOORE.
• Court: Kentucky Court of Appeals

14 S.W. 339

MOORE et ux. v. MOORE.

Court of Appeals of Kentucky.

September 4, 1890

Appeal from circuit court, Allen county.

"Not to be officially reported."

Boles &amp Duff and Thos. H. Hines, for appellants.

W. H Botts and W. P. D. Bush, for appellee.

PRYOR J.

Moore and wife, who are the appellants in this case, executed a conveyance, absolute on its face, to secure the payment of a certain sum of money owing by the husband to his brother Simpson Moore. After the deed had been executed, or about that time, a writing was given by the mortgagee to the effect that all the land sold for above the indebtedness should go to the parties of the first part. Simpson Moore, being invested with the title, obtained a writ of possession under a warrant for forcible detainer, and was about having the writ executed when the husband and wife both united in an action in which they admit the execution of the deed but say it was intended as a mortgage, as is evidenced by the writing subsequently executed. The court held the conveyance to be a mortgage at the instance of both husband and wife, and subjected the land to the payment of the debt. The appellee purchased the land, and the sale was confirmed. That judgment stands unreversed. They (the husband and wife) now file this petition seeking a homestead, making various questions as to the mode of acknowledging the writing, the certificate of the clerk, and that no act was done by the wife to divest the husband of his homestead. The mode of relinquishing the homestead is pointed out by the statute, and certainly the conveyance by the husband and wife passed the right, as there was no reservation of dower or homestead. The husband and wife sought, in the first action, to make that which appeared on its face to be absolute to be only conditional, and further alleging that the deed passed neither dower nor homestead. The relief was granted by holding the deed to be a mortgage, and the land directed to be sold to pay the mortgage debt, but no allotment of homestead was ordered. A sale made by the chancellor under a mortgage note executed by the wife when she was not before the court in the action, nor any defense made, was held by this court, in Wing v. Hayden, 10 Bush, 276, not to pass the homestead, but in this case the wife admits the execution of the paper as a mortgage, claiming, however, that it did not pass her dower or homestead, and, when asking relief, no...