Thorn v. Darlington

JUDGE ROBERTSON delivered the opinion op the court. To secure a debt contracted since the 1st of June, 1866, the appellee, on the 19th of February, 1868, mortgaged a house and lot in Hardinsville, Shelby County, Kentucky, [449] on which he and his wife and children then resided and still reside. His wife was no party to the mortgage, and the house and lot not being worth one thousand dollars, he for the benefit of his family claimed an exemption of the property under the homestead statute of February 10, 1866 (Myers’s Supplement, 715), and therefore resisted the purchase and sale as sought by the petition in this case. The circuit court rendered a judgment in personam again' him for the debt, but dismissed the petition as to foreclosure and sale. "Without any evidence or even intimation to the contrary, the appellee must, on a prima facie presumption from the record and the law, be adjudged a white man. We can not assume that he is of the special class of colored persons excepted by the 6th section of the act. The exception in the 1st section in favor of mortgages is qualified by the 5th section in these words: “That no mortgage, release, or waiver of such exemption shall be valid unless the same be in writing, subscribed by the defeiidant and his wife, and acknowledged and recorded in the same manner as conveyances of real estate; and such exemption shall continue' after the death of the defendant for the benefit of his widow and children, but shall be extinct in allotting dower.” To secure to the wives and children of debtors humble homes against disturbance of families by creditors was the leading aim of the statutory exemption; and, considering that purpose as a clue, the rather vague and inappropriate language of the 5th section should be interpreted as intending that whenever a mortgagor shall have a wife, the mortgagee, without her co-operation as prescribed, shall not prevail so as to deprive her and her family of the homestead exemption, or disturb their enjoyment of their home, as a sale of the husband’s right of co-occupancy [450] would be apt to do. Consequently, in sucb a case as this, the entire property, worth less than one thousand dollars, is exempt from sale even under his mortgage. Wherefore the judgment is affirmed.