|21 Ky.L.Rptr. 1705|
|Court of Appeals of Kentucky.|
|WELLER v. MONROE.|
|March 29, 1900.|
Appeal from circuit court, Bell county.
"Not to be officially reported."
Action by N. J. Weller, receiver of Hull & Barclay, against Bettie L. Monroe, to enforce a lien on land.
Judgment for defendant, and plaintiff appeals.
On May 29, 1890, Hull & Barclay by deed conveyed to appellee, Bettie L. Monroe, for the consideration of $1,250, lots 1 and 2 in block 6 of their addition to the city of Pineville, Ky.; she paying $235 of the consideration in cash, and executing to them her three notes for $1,015, due in one, two, and three years, with interest from date. These notes in October, 1893, passed to appellant, N. J. Weller, as receiver of Hull & Barclay; and he filed this suit to recover on the notes, and to enforce the lien retained in the deed for the unpaid purchase money. Appellee, Bettie L. Monroe, filed an answer pleading coverture, and praying a cancellation of the deed, and judgment against Hull & Barclay for the amount that she had paid them on the purchase. She alleged that by reason of her coverture her acceptance of the deed was void; that she had repeatedly disaffirmed the transaction, and offered to return the deed to Hull & Barclay, and demanded of them the payment to her of the money she had paid them. The case being submitted on this answer, the court dismissed the petition, with costs; leaving appellee in possession of the deed, and with the title to the land vested in her.
The rule is well settled that where the purchase of land by a married woman has been executed, and she has accepted a deed to the property, the court will not rescind the executed contract, but will enforce the lien retained in the deed which she has accepted, though no personal judgment can be given against her. The only thing to distinguish this case from those cited is that here the husband did not sign the notes given by the wife for the land. But this is immaterial; for, if he had signed them, the notes would have been none the less void as to the wife. The right to subject the land to the payment of the purchase money arises, not from the notes, but from the deed; the reason for the rule being that, "having accepted the vendor's title to the land, she is estopped from denying him the right to subject the same to the payment of the purchase money." This rule has the support of the United States supreme court, and has, so far as we have seen, been universally followed in the state courts. If no notes had been given by appellee at all, the action might have been brought on the deed to enforce the lien retained in it; for she took the title under the deed, subject to the conditions it contained. And, as her coverture did not warrant the rescission of the executed contract, this lien may be enforced against the land embraced in the deed.
Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.
WELLER v. MONROE.
55 S.W. 1078, 21 Ky.L.Rptr. 1705
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