Lemming v. Mullins

Opinion by Judge Lewis : This is an action by appellee Tabitha Mullins seeking judgment, allotting and setting apart to her dower in a tract of land, of which her deceased husband Stephen Mullins, during his life time had the legal title and possession. In defense of the action appellant, Lemming, alleges that the tract of land in which appellee claims dower, was sold and conveyed to him by her husband, and in which appellee united. To sustain his defense appellant files as an exhibit,-a deed purporting to have been executed by Stephen Mullins and signd by him and appellee, and as appears from the certificate of the clerk, the deed was also acknowledged by her to be her act and deed. But she is not named in the body of the deed, and consequently, as heretofore held by this court, it does not purport to convey any interest on her part, and is insufficient to bar her of dower. To hold appellee barred of her right of dower in this case, would be in direct conflict with repeated decisions of this court. Hatcher & wife v. G. W. & N. P. Andrews, 5 Bush (Ky.) 561. Prather et. al. v. McDowell, and wife, 8 Bush (Ky.) 46. As the report of the commissioners directed to lay off and allot dower in the land of appellant is subject to confirmation or rejection by the court, whatever possible injury there might result to any of the parties in whose lands appellee claims dower, by the act of the commissioners, may be presented by the court, when the report is filed. Whereupon the judgment is affirmed.