Benton v. Lemmerick

Opinion by Judge Elliott : On the 28th day of October, 1874, appellants, Benton and wife, executed their promissory note to the appellee for the sum of $1,500, due one year after date, with interest from date, this sum being loaned to them at that time; and to secure its payment they executed a mortgage to the appellee of a tract of land described in the mortgage copied in this record. This deed conveys, by way of mortgage, all the interest of the appellants in the land embraced by the conveyance, and the only question is as to whether the homestead passed by the deed to the vendee. In Wing v. Hayden, 10 Bush 276, and in Robbins v. Cookendorfer, 10 Bush 629, this court decided that whenever the husband and wife join in a conveyance of the whole estate, without limitation either in the deed or certificate of acknowledgment, the same amounts to a waiver of the homestead right. As, therefore, the appellants conveyed to the appellee in mortgage their entire estate in the land, the homestead right passed to the vendee, and as the lower court so adjudged that judgment is hereby affirmed.