
    Case 34 — PETITION EQUITY
    Oct. 17.
    McGrath, &c. v. Berry.
    APPEAL FROM MARION CIRCUIT COURT.
    1. The homestead right was not waived by a’ mortgage signed and acknowledged by the mortgagor and bis wife, wherein she is mentioned as a party of the first part, but did not join in the grant, nor in any manner express in terms her intention either to relinquish her dower or to join her husband in waiving his right to the homestead exemption.
    2. It is necessary for the wife to subscribe and acknowledge a mortgage which, either in express terms or by legal implication, conveys an absolutely unencumbered fee-simple estate, in order to defeat the claim of the husband to the homestead.
    
      The homestead act was not intended to interfere with or limit the respective rights of vendors and vendees of real estate, and therefore the principles herein announced have no application to voluntary sales, either executed or executory.
    
      3. Eight to claim homestead is not barred by a judgment that the defendant’s equity of redemption in the mortgaged land be sold, etc., rendered in an action by the mortgagee against the mortgagor and his wife to enforce the mortgage.
    
      The sale of the equity of redemption passed no greater estate to the purchaser than would have passed if the wife had not signed the mortgage nor been a party to the suit for the enforcement of the lien.
    4. The chancellor ought to have directed his commissioner to set apart the homestead in this case on the pleadings and exhibits; hut — •
    
      His failure to do so was not a judicial determination that the right to the homestead did not exist.
    The mortgage, which did not waive the homestead right in this case, reads as follows, to wit:
    “ This indenture, made and entered into this 23d day of November, 1871, between John McGrath and Catharine McGrath, his wife, of Marion County, Ky., of the first part, and N. T. Berry, of the county and state aforesaid, of the second part, witnesseth, that whereas the said McGrath is indebted to the said Berry ... in the sum of $1,348.79, . . . and in order to secure the payment of said note and its interest at said rate, he the said McGrath does hereby and simultaneously with the execution of said note . . . grant, bargain, sell, mortgage, and convey unto him, the said Berry, said tract” of land, describing the land, etc. “In testimony whereof, the parties of the first part have hereunto set their hands the day and date first above herein written.”
    This mortgage was duly signed and acknowledged by the mortgagor and his wife “ to be their act and deed,” and duly recorded.
    In the mortgagee’s suit against the mortgagor and his wife to enforce the mortgage the court rendered a judgment directing its commissioner to sell the mortgagor’s equity of redemption in the land described in the mortgage. At the sale made in pursuance of the judgment the mortgagee became the purchaser of the land for less than the amount of his debt. After the sale was confirmed, and property conveyed by commissioner to the purchaser, the mortgagor and his wife, the appellants, instituted this action, asserting their claim to a homestead in the land embraced in the mortgage, and sold and purchased as aforesaid. The court below sustained a demurrer thereto, and dismissed the plaintiff’s petition, and, on their appeal that judgment of dismissal is reversed.
    RUSSELL & AYRITT por appellants.
    The homestead right was not waived in this case, because, in the mortgage, no allusion is made to the homestead, dower, or other interest of the wife; nor does the certificate of the clerk indicate for what purpose the wife’s name was placed to the mortgage. (See Hatcher and wife v. Andrews, 5 Bush, 562; Hammilman v. Schmidt, 23 Cal.; Wing, &e. v. Hayden, &c., 10 Bush, 276; Bobbins, &c. v. Cookendorfer, 10 Bush, 629.)
    B. H. BOHNTBEE roe appellee.
    The cork’s certificate is in the form prescribed in sec. 22, chap. 24, Bev. Stat.
    The mortgage waived the homestead right. (See. 5, Homestead Act, Myers’s Supp., p. 715; see Wing, &c. v. Hayden, &c., 10 Bush, 280.)
    In Bobbins, &c. v. Cookendorfer (10 Bush, 631) the wife did join, etc., and thereby the homestead was waived.
    In Herbert, &e. v. Kenton Building Association it was made to appear that the wife joined only to relinquish her dower, and did not thereby waive the homestead exemption.
    The homestead is waived where the wife joins in the mortgage, unless there is something apparent in the deed or clerk’s certificate to restrict or modify the presumption that a waiver was intended, and there is nothing of that kind in this case.
    A. Duvall filed a petition, in behalf of appellee, for a rehearing, which was overruled.
    
      First. The mortgage in this case comes up to the requirements of sec. 13, art. 13, chap. 38, Gen. Stat. — it was in writing; it was subscribed by the defendant in the judgment and his wife; and it was acknowledged and recorded in the same manner as conveyances of real estate. This is all the statute required the wife to do, and it was not necessary that she should join in the granting part of the mortgage.
    “ The homestead exemption is not an estate in the land, but only a privilege of occupying the same by a housekeeper with a family, and therefore a sale by him alone, without the concurrence of the wife, vests in the vendee all the estate which the vendor had in the land.” (Brame, &c. v. Craig, 12 Bush, 407.)
    The acceptance by the wife of the provisions of the husband’s will, devising all his estate to her during life, is a waiver of both dower and homestead right.” (Watson v. Christian, 12 Bush, 525.)
    Where a debtor removes from his residence, his right of homestead exemption ceases with his removal. (11 Bush, 228.)
    These decisions settle the proposition that the homestead right which the statute confers on the wife is not an estate or interest in the land, but a mere contingent future right of occupancy by her and her children, to be enjoyed after the husband’s death; liable to be defeated by the 
      husband — -first, by a sale without her concurrence; second, by a mortgage with her concurrence; and, third, by his removal.
    In Eustaehe v. Rodaquest (11 Bush, 46) there is a contrary dictum, which is expressly overruled in the cases cited. In Robbins v. Cookendorfer (10 Bush, 629) the wife was the owner of the homestead. In the two cases of Wing v. Hayden (10 Bush, 276) and Thorn v. Darlington (6 Bush, 448) the wife was not a party to tjie mortgage.
    The right of homestead exemption, not being an estate or interest in the land, is not the subject of either grant or conveyance, especially by the wife, where the husband is the owner of the fee.
    
      Second. The judgment in appellee’s suit on the mortgage ordering a sale of the land, and the confirmation of the sale as made, constituted a bar to the present case.
    The decision of this court on this same question in Harpending’s ex’rs v. Wylie, &c. (13 Bush, 158) is applicable to this case.
    All persons who are parties to a suit in chancery are concluded by the matters decided in that suit as to every character of claim they may have to the matter or thing in contest, and will not be permitted to re-examine their right in a subsequent suit to recover such claim.
    In Ligón v. Triplett (12 B. Mon. 284) this court held: “If the defendant had any other title to the land ... it was his duty to have asserted it in the suit brought to sell the mortgaged property. All the questions^fhiah might have been raised in that suit by any one of the defendants, in opposition to the relief prayed for by the complainants, are concluded by the decree rendered therein.” (Mitford’s Pleadings, 245; Bush’s heirs v. Hampton, &c., 4 Dana, 84.)
    In Wing v. Hayden the wife was not a party to the suit to foreclose.
    The case of Harpending’s ex’rs v. Wylie, &c., is like this in its more important features, but is not so strong. In this case the judgment of sale was carried into execution, sale made and confirmed, and deed made to the purchaser before appellants attempted to assert any claim or right to the homestead exemption.
   CHIEF JUSTICE LINDSAY

delivered the opinion oe the court.

In tbe mortgage from McGrath to Berry Mrs. McGrath did not join as a grantor. She is mentioned as a party of the first part, and she signed and acknowledged the instrument; but she did not join in the grant, nor in any manner express in terms her intention either to relinquish dower or to join her husband in waiving his right to the homestead exemption.

She was not an active participant in the act creating the mortgage-lien, and is apparently but a nominal party to the mortgage.

But appellee contends that the act under which the homestead exemption must be claimed does not make it necessary for the wife to do more than evidence in the prescribed mode her consent to the waiver, by the husband, of the statutory exemption. That she has no estate or interest to convey or relinquish, and therefore it is only necessary to secure her consent to the waiver of the husband, in order to defeat his claim to the exemption.

Sec. 9, art. 13, chap. 38 of the General Statutes recognizes the right .of the owner of a homestead to encumber it by a mortgage; but sec. 13 provides that no mortgage, release, or waiver of such exemption shall be valid, unless the same be in writing, subscribed by the defendant and his wife, and acknowledged and recorded in the same manner as conveyances of real estate.

A strict adherence to the very letter of this section may. support the conclusion that it is only necessary, in order to pass or waive the homestead exemption, that the wife shall subscribe and acknowledge the deed, that she need not be a party to it, and that her intention need not be expressed in the writing itself. There would be much plausibility in this theory if the writing showed on its face that the husband intended- to mortgage, waive, or release the exemption, as well as to encumber the title to the land. The intention of the wife might then be implied, from the fact that she signed and acknowledged the paper. But when, as in this case, the mortgage makes no mention of the exemption, and the wife does not join in the grant, nor state in the writing what her purpose is, it seems to us it would be a dangerous exercise of the power of construction for the courts to infer that she intended to put it in the power of the creditor to subject the husband’s homestead to the payment of the mortgage-debt. The most reasonable construction of the language of the legislature seems to be that it is necessary for the wife to subscribe a mortgage which, either in express terms or by legal implication, conveys an absolutely unencumbered fee-simple estate, in order to defeat the claim of the husband to the homestead.

The homestead act was not intended to interfere with or limit the respective rights of vendors and vendees of real estate, and therefore the principles herein announced have no application to voluntary sales, either executed or executory. It was intended to prevent the coercive sale of the homestead by a creditor under execution, attachment, or judgment of a court, and the exceptions to the general want of power in the creditor to sell it, in satisfaction of his debt, should not be extended by a liberal construction, so as to defeat the benevolent and humane purposes of the statute.

These conclusions are in harmony with the previous decisions of this court on the subject under consideration, and the construction given seems to be necessary in order to prevent the power of negation conferred on the wife by the statute from being rendered utterly nugatory by skillfully drawn mortgages, the full effect of which may not be understood either by her or the officer who takes her acknowledgment.

We are therefore of opinion that the mortgage to Berry was no more effectual to pass the homestead exemption than if Mrs. McGrath had neither signed or acknowledged it.

Mrs. McGrath was a party to the action of Berry to enforce his mortgage; but the judgment in that case did not determine or purport to determine, that the homestead exemption was subject to sale.

The decree was that the defendant’s equity of redemption in the lands mentioned in the mortgage be sold, etc. The sale of the equity of redemption passed no greater estate to the purchaser than would have passed if Mrs. McGrath had not signed the mortgage nor been a party to Berry’s suit for the enforcement of his lien.

Upon the pleadings and exhibits the chancellor ought to have directed his commissioner to set apart the homestead to McGrath before making sale of the property; but his failure to do so was not a judicial determination that the right to the homestead did not exist.

This case comes clearly within the rule announced in Wing v. Hayden (10 Bush, 276), and differs altogether from the late case of Harpending’s ex’rs v. Wylie (13 Bush, 158).

The demurrer to appellants’ petition should have been overruled.

Judgment reversed, and cause remanded for further proceedings consistent with this opinion.  