Hopper's Administrator v. Hopper

Opinion of the Court by Judge Carroll Reversing. In a suit to settle tbe estate of Mrs. Pboeba Hopper tbe Bank of Hazel presented a claim that was secured by a mortgage on land owned in ber own right by Mrs. Hopper. Tbe lower court adjudged that the bank took no [73] lien by virtue of this mortgage because P. D. Hopper, the husband of Mrs. Hopper, did not join with her in its execution, nor had he theretofore conveyed his interest in the land. And the only question in the case is the correctness of the ruling of the court. The mortgage reads as follows: “Whereas; I, Phoeba A. Hopper, of Hazel, Calloway County, Kentucky, E. F. D. No. 2, am indebted to the bank of Hazel, a corporation of Hazel, Calloway County, Kentucky, in the sum of four hundred and ninety-six and 74/100 dollars evidenced by two promissory notes of this date..... “Now in order to secure said Bank of Hazel in the payment of said sums together with all interest and cost which may accrue thereon, I hereby bargain, sell and mortgage unto the said Bank of Hazel or their representatives or assigns the following described property lying and being in Calloway County, Kentucky, to-wit: .... “P. D. Hopper, husband of Phoeba A. Hopper, joins in this mortgage, relinquishing all rights to homestead or dower therein. This mortgage is subject to life right of Mrs. O. C. Nance and there is no other incumbrance. ‘ ‘ To have and to hold unto the said Bank of Hazel, its representatives or assigns until said sum is fully paid, then this mortgage to be null and void, otherwise to remain in full force and effect. “Given under our hands this the third of August, 1911. Phoeba A. Hopper (her mark), P. D. Hopper. Witness, Norman Chrisman. “State of Kentucky, County of Calloway, Set. I, E. H. Falwell, Clerk of the County Court for the County aforesaid do certify that the foregoing mortgage from Phoeba Hopper to Bank of Hazel was this d¡ay acknowledged before me by Phoeba A. Hopper and husband, P. D. Hopper, to be their act and deed. All of which is hereby certified to the proper office for record. Given under my hand this August the third, 1911. ”..... The validity of this paper as a mortgage is to be' tested by section 506 of the Kentucky Statutes providing how a married woman may convey her property. This section reads, in part, as follows: “The conveyance may be by the joint deed of husband and wife, or by separate instrument; but in the latter case the husTband must first convey, or have theretofore conveyed.” [74] It will be observed that under tbis statute tbe conveyance may be by tbe joint deed of busband and wife, and so tbe precise question involved in tbis case is, shall tbis mortgage be treated as tbe joint deed of Mrs. Hopper and her busband? In tbe granting clause of tbe deed tbe name of the bus-band is not mentioned. Tbe conveyance purports to be and is made by tbe wife alone, but following tbe description of tbe estate conveyed, tbe busband, by name, joined in tbe conveyance for tbe purpose of relinquishing bis right to homestead or dower,' and also signed and acknowledged it in conjunction with bis wife. It was held in Hedger v. Ward, 15 B. Mon., 106; Hatcher v. Andrews, 5 Bush, 561; Weber v. Tanner, 23 Ky. L. R. 1107; Beverly v. Waller, 115 Ky. 596; Elliott v. Scoville, 144 Ky. 584; Hellard v. Rockcastle Mining Co., 153 Ky. 259, and Parsons v. Justice, 163 Ky. 737, that tbe mere signing and acknowledging by tbe busband of a deed made by the wife conveying ber land, in which deed tbe husband’s name was not mentioned as a grantor, and did not appear in tbe body of tbe deed, was not sufficient to pass the husband’s interest in the land, and also that a deed by tbe busband, although signed and acknowledged by tbe wife, in which she did not join as a grantor, and in the body of which ber name was not mentioned, would not be sufficient to pass tbe interest of tbe wife in tbe husband’s estate. These opinions were put upon tbe ground that as tbe statute declares tbe conveyance must be by tbe joint deed of busband and wife, tbe mere fact that the busband, or wife as tbe case may be, signed and acknowledged the deed, was not sufficient to constitute it a joint deed in tbe meaning of tbe statute. But in tbe case we have it will be observed that tbe busband not only signed and acknowledged tbe deed but in tbe body of tbe deed be joined with bis wife for tbe purpose of relinquishing whatever interest be might have in tbe land as tbe busband of bis wife, and we think that tbis recital in tbe deed constituted such a joinder by tbe busband as was contemplated by tbe statute. If tbe name of tbe busband, P. D. Hopper, had'been inserted in tbe deed in tbe preamble; and tbe word “we” bad been substituted for the word “I” in tbe granting clause, as is tbe usual form, tbe effect of tbe deed, when signed and acknowledged by tbe busband and wife, would have beep, to divest both of them of all title and interest in [75] the land, but not more so than does the conveyance before us, because Hopper, by the recital in the conveyance that he joined in it for the purpose of relinquishing all his right to homestead or dower, conveyed to the grantee as effectually as could be done all his interest in the estate conveyed. There is quite a difference between the effect of the husband merely signing and acknowledging a paper and the effect of inserting his name in the body of the paper in connection with a clause by which he surrenders all interest in the property conveyed. For example, in the case we have if P. D. Hopper, the husband, had merely signed and acknowledged the paper, he would' not by anything contained in the paper, have surrendered any right or interest he might have in the land, as his mere signature and acknowledgment could not have this effect under the statute. But when he joined in the body of the paper as a grantor and expressly surrendered all ■right, title and interest in the land., the conveyance then became for every practical purpose the joint deed of the husband and wife. As said in Phillips v. Hoskins, 128 Ky. 371, “The purpose of the statute in requiring that the husband must join in the conveyance of the wife’s land is not only to protect the husband in his rights, but to protect the wife by giving her the counsel and guidance of her husband;” and clearly this purpose was fully subserved in the mortgage before us. The husband knew by the terms of the mortgage the nature and contents of the paper that he signed and acknowledged, and he also knew its effect upon his rights as well as upon the rights of his wife. We think the paper sufficiently complied with the provisions of the statute, and therefore the judgment is reversed, with directions to proceed in conformity with this opinion.