|22 Ky.L.Rptr. 250|
|Court of Appeals of Kentucky.|
|MAIN v. RAY et al.|
|May 24, 1900.|
Appeal from circuit court, Knox county.
"Not to be officially reported."
Action by Martha T. Ray and others against Mary Main and her husband to enforce a mortgage lien.
Judgment for plaintiffs, and defendant Mary Main appeals.
Appellees filed this suit against appellant, Mary Main, and her husband, to recover of him the amount of a note for $300, and foreclose a mortgage given by appellant and him to secure the note. Appellant seeks a reversal of the judgment entered in the action on the ground that the petition is not sufficient, and that the mortgage is not binding on her. It is insisted that the petition does not aver a delivery of the mortgage, or sufficiently set out its terms. But appellant filed an answer in which she denied "that she signed, executed, or delivered either the note or mortgage sued on." This, especially after judgment, cured any defect there was in the petition; the case having been tried on the merits, and the evidence fully
sustaining the judgment of the chancellor. While the mortgage is very inartificially drawn, it recites the execution of the $300 note signed by appellant and her husband, thus, "For three hundred dollars, for which we have executed our promissory note of even date herewith," and it then proceeds, "said Main has granted, and by these presents doth grant, bargain, and sell," the land, to secure the indebtedness. After this, it concludes with these words: "Now, if said party of the first part, or any one for them, shall pay said indebtedness at maturity, then this indenture shall be void; else, remain in full force. And the said parties of the first part hereby waives and relinquishes to the said party of the second part all claims they have or may have to said property under the homestead laws of this state." While the grammar of the mortgage is bad, the actual meaning and intent are plain. Such an instrument must be enforced according to its sense as a whole, rather than the strict rules of grammar. In cases of doubt a deed is construed against the grantor, and so as to uphold the grant, and, though in the granting clause here only a singular verb is used, it is plain, in this clause, as in the one quoted above, where same thing occurs, that both the husband and the wife are included by the words employed.
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