25 Ky.L.Rptr. 492
Court of Appeals of Kentucky.
Sept. 29, 1903.
ACTION: Affirmed.

Appeal from Circuit Court, Clay County.
"Not to be officially reported."
Action by N. C. Potter against Martha Hogg.
From a judgment in favor of plaintiff, defendant appeals.

Prior to the year 1877, appellee and R. G. Potter were married, and resided in Clay county as husband and wife until her husband's death, which occurred in 1896. In the year 1897 she brought this suit to recover dower in the lands described in the petition, which were owned by her husband in fee simple, but which had been sold from him by an execution in the year 1878. Appellee never conveyed nor joined in any conveyance for her dower interest therein.

Under the statute in existence at the time of the marriage of appellee and her husband, and which has existed ever since, the wife shall be endowed for her life of one-third of the real estate of which her husband or any one for his use was seised of an estate in fee simple at any time during the coverture, unless her right to such dower shall have been barred, forfeited, or relinquished. Under this statute the appellee is entitled to dower in this land unless by reason of some action or nonaction of hers she is barred or has forfeited or relinquished her interest therein.

The appellant contends that such is the case. She contends, first, that the appellee relinquished her dower right in this land by accepting homestead in other lands in lieu of dower, and that she is now estopped from claiming the dower; second, she claims that this land was sold in 1878 to satisfy a lien for the purchase price, and that by reason she is not entitled to dower in this land.

As to appellant's first contention, that a homestead had been allotted to her, and that she had accepted and continued to occupy same, and for that reason she cannot now claim dower, the record, in substance, shows this state of fact: In 1878 her husband, R. G. Potter, being involved in amounts greater than he could pay, made and executed a deed of assignment to his trustee of all of his property for the benefit of his creditors. The assignee instituted an action in the Clay circuit court to settle and distribute the estate assigned to him. Appellee was not a party thereto. It appears that action is still pending and undetermined. Soon after that action was instituted the court made this order: "R. G. Potter's Receiver vs. A. M. Combs, etc. The court further adjudges that the property conveyed by R. G. Potter in his deed of trust, but now in the possession of the said Potter, and occupied by him as a homestead or residence, shall continue in the possession of said Potter until the further order of this court, together with all the household and kitchen furniture that was by former judgment herein directed to remain in the hands of said Potter."

The other judgment referred to in this order allowed R. G. Potter to hold the personal property therein named until the further order of the court. It is by the authority of this judgment that the appellant contends that a homestead was allotted, and that by reason of appellee and her husband continuing the premises it must be deemed as an election on her part of claiming a homestead, and that she is now estopped from claiming dower. We cannot agree with appellant in this. The judgment does not allot a homestead; it only permitted her husband to remain in possession of the premises (calling it a homestead or residence) until the further order of the court. It appears that there has been no order with reference thereto, but that action is still pending, and the court can yet direct a disposition thereof. R. G. Potter died in 1896, and very soon thereafter this action was brought for dower, which shows an election by her to take dower in his estate, and by her election she will be confined to her claim of dower. She cannot have both homestead and dower.

We agree with appellant's counsel that the widow cannot claim dower in lands sold to enforce a lien for the purchase price, but, as it appears from this record, that state of case does not exist here. The facts, without contradiction, show that appellee's husband, R. G. Potter, bought and paid for the land in controversy, and that no lien was reserved for the purchase price or any part thereof in favor of the vendor or in favor of any one from whom he might have borrowed the money and paid for it. The simple borrowing of money from one to pay for land does not give the lender of the money any lien whatever.

The appellant offered a fourth paragraph of her answer, which the court refused to allow to be pleaded, which stated, in substance, that after her husband's deed of assignment, and after she had been authorized to act as a feme sole by a judgment of the Clay circuit court, that appellee should not, in good conscience and in equity, be allowed to claim dower in the land in controversy for the reason that, by the labor, means, and business sagacity of her husband, she was enabled to and did become the ostensible owner of many thousand dollars' worth of supposed worthless notes and accounts, and many tracts of land which were sold at public sale by the commissioner of the court in the action to settle the estate of R. G. Potter.

We are of the opinion that the court was right in refusing to allow this plea, for, if there was any wrongdoing on the part of appellee, this was a matter which affected the creditors of R. G. Potter. The appellant not being one of them, and R. G. Potter not being a vendor of the land in controversy, the same having been sold from by the sheriff under an execution, his estate not being responsible on account of any warranty, we cannot see the relevancy of this plea. This plea, in effect, says, "Appellee, you and your husband have beaten his creditors by your low purchases at decretal sales of his property; now you must divide the profits with me."

Perceiving no error in the judgment, it is therefore affirmed.

Ky.App. 1903.
76 S.W. 35, 25 Ky.L.Rptr. 492


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