Gideon, Burton & Co. v. Struve

JUDGE COFER delivered the opinion of the court. Struve and wife having conveyed to Coleman a lot of two acres of land in Bridgeville, in Robertson county, on which they resided with their family, certain creditors of Struve brought an action under article 2 of chapter 44 of the General Statutes, commonly called the act of 1856, and procured a judgment to sell it and other property conveyed by Struve to Coleman and others, on the ground that, under the statute, the sale operated as an assignment and transfer of all his estate and effects for the benefit of his creditors. . The lot in Bridgeville was sold, and Mrs. Struve purchased it at $800. She and her husband then filed an answer in the-nature of a petition for the allotment of a homestead, and the court having adjudged in their favor, the creditors prosecute this appeal from that judgment. [135] The facts entitle Struve to the exemption, unless it has been lost through the operation of the deed to Coleman. That deed was signed and acknowledged by both husband and wife, and was, according to numerous decisions of this court, sufficient to divest them of the right to the exemption, and they must fail unless they have in some way been reinvested with the right. It was held in Keuvan v. Specker, 11 Bush, 1, that if a wife unites with her husband in making a conveyance of his land which is actually fraudulent as to his creditors, and the conveyance is set aside at the instance of creditors, the. debtor will be entitled to a homestead. The court said the creditors were attempting to subject the land on the' ground that it was still the property of their debtor, and that they would not be allowed to do that and then to deny that he was the owner in order to defeat his right to the exemption. In Lockett v. James (8 Bush, 29) and Dugan v. Massey (6 Bush, 81), it was held that a wife who united with her husband in a conveyance, actually fraudulent as to his creditors, was entitled to dower in the land, the deed having been adjudged fraudulent, and the land sold at the suit of the husband’s creditors. But in Cantrill v. Risk (7 Bush, 158), where a conveyance was made by husband and wife which was, at the suit of creditors, adjudged to be within the act of 1856, it was held that the wife was not entitled to dower in the land. In that case the court said the deed was not adjudged to be voidable as to creditors; that the effect of the judgment that the conveyance was within the act of 1856 was, that the deed was valid and binding as an assignment to all the creditors. A fortiori it did not restore the right to dower which [136] had been alienated by the deed; that according to the act of 1856 the grantee held the legal title of both the husband and wife in trust for the husband’s creditors, and the court could not see how her title, any more than his, lapsed by the sale for all these creditors. If, as there held, a deed within the statute of 1856 will bar the wife’s claim to dower, no reason is perceived why a similar deed will not bar the husband’s right to a homestead exemption. Judgment reversed, and cause remanded, with directions to dismiss the petition for a homestead.