Hackney v. Smith

Opinion of the Court by Judge Clarke Affirming. By this action filed June 1, 1922, appellant seeks to liave dower set apart to her in a 50-acre tract of land conveyed by ber bnsband to appellees’ remote vendors May 7, 1881. She also signed and acknowledged tbe deed, and in avoidance thereof, sbe alleges, in tbe first paragraph of ber petition that sbe was a minor at tbe time,- and, in tbe second paragraph that her name does not appear in the caption or body of tbe deed. A demurrer was sustained to tbe second paragraph of tbe petition, and an estoppel pleaded to tbe first paragraph was sustained upon a trial of that issue, whereupon ber petition was dismissed, and sbe has appealed. Tbe deed filed with and made part of tbe petition does not contain tbe name of appellant in tbe caption, tbe granting clause, or tbe habendum, but it concludes thus: “In witness whereof tbe said R. P. Hackney & W. H. Hackney, together with Charity Hackney & Diana Hackney, their wives, who hereby relinquish their right of dower in & to tbe lands conveyed in this deed bath hereunto set their band and seal this day & date above written, all the poplar trees 24 *808 in. in diana. & encumber & merchantable walnut 12 in. up that is on the part of the land owned by R. P. Hackney is excepted out of said land.” Hence by express stipulation recited in the body of the deed, appellant became a party thereto for the purpose of relinquishing her potential right of dower in the land thereby conveyed, and if she had been of age at the time, there could be no doubt of the sufficiency of the deed to accomplish that purpose. It was expressly so held in Stone v. Stubblefield’s Admr., 13 Ky. Opns. 119, 6 Ky. L. R. 443. The eases relied upon by appellant, Prather v. McDowell, 8 Bush 46, and Buford’s Admr. v. Guthrie, 14 Bush 677, not only do not support her contrary contention, but by necessary inference contradict it, since, as pointed out in the former of those cases, the deeds therein were held insufficient to pass dower because the wife “used no words indicating upon her part an intention to relinquish dower in the lands conveyed.” Since the deed filed with the petition as an exhibit expressly relinquishes dower and contradicts the allegation of the second-paragraph, that appellant’s name does not appear in the body of the deed, .the éxhibit controls, and the. court did not err in sustaining the demurrer to that paragraph. The fact, admitted by the answer, that appellant was a minor when she .executed the deed, rendered it voidable but not void. Although her husband did not die until shortly before this action was instituted, she could, at any time since the passage of the Weissinger Act in 1894, have disaffirmed the deed and prosecuted an action in her own name to set it aside. Instead, although she lived in the immediate vicinity of the land all of the time, she said nothing, and stood by and saw the land changing hands and being permanently improved by innocent purchasers. Under almost precisely the same circumstances, we held, in Moore v. Hudson, 194 Ky. 725, 240 S. W. 383, the wife was estopped to disavow her deed and- claim dower. Hence the trial court did not err in sustaining defendants’ like plea in this case. Although the petition does not attack the validity of the deed except for the two reasons above disposed of, it is now urged that it is void because the clerk who took the acknowledgement did not certify that appellant was *809 examined and acknowledged the deed to he her voluntary act, separate and apart from her husband, as was then required by section 507 of the statutes. Ve need not consider her right thus to present the question, since, assuming it is here, it is concluded against her by the opinion in Echols v. Wood, 143 Ky. 451, 136 S. W. 907, wherein sections 507 and 514 of the statutes, as amended in 1910 and expressly validating all prior conveyances so certified, were upheld. Judgment affirmed.