
    Case 21 — ACTION TO ENFORCE MORTGAGE
    Oct. 13.
    Rhodes v. Peoples Savings & Building Association.
    APPEAL PROM HENDERSON CIRCUIT COURT.
    Parties — Husband and Wipe. — A conveyance of land by a husband to his wife upon the consideration of her assumption of a mortgage upon ‘it makes the mortgage debt hers, and in an action to enforce same, he is not a necessary party.
    M. C. and G. D. GIVENS por appellant.
    1. Moses Rhodes was a necessary party -to the suit. Ky. Stats., secs. 2127, 2128.
    2. The judgment does not conform to the pleadings. Upon an application to correct a misprision it was improper to allow the parties to amend the pleadings.
    E. G. SEBREE, JR., por appellee.
    Counsel discussed seriatim the points relied on for reversal, and in support of his contention cited Ky. Stats., sec. 2128, pro-' viding that a married woman ¡may sue and be sued as a single woman.
   JUDGE GUFFY

delivered the opinion of the court.

The appellee instituted suit in the Henderson Circuit Court seeking to recover judgment against Moses Rhodes and appellant for the sum of $871.52, and also asserting a mortgage lien on certain real estate to secure the payment-thereof. It was alleged in the petition that Moses Rhodes, by deed May 5, 1896, conveyed to his wife, Rosa Rhodes, the real estate described in the mortgage, and that she, in consideration thereof, had agreed" to- pay plaintiff said debt. Afterwards an amended petition was filed, from which it appeared that Moses- Rhodes had repaid the plaintiff the balance due on nineteen shares of stock in said association, which left said Rhodes the owner of only ten shares.

It appears from the record that twentv-sis shares was the whole number of shares subscribed for by said Rhodes.

At the May term, 1897, the appellant filed an answer, which it seems was intended to plead usury, and asked that plaintiff be required to file a statement of all moneys borrowed claimed- for herein, dates thereof, and all payments thereon, with date of same, and that , all payments be calculated at 6 per cent, interest, -and that interest on plaintiff’s claim be calculated at 6 per cent., and properly credited on said debt.

At the May term, 1897, plaintiff filed another amended petition, in which it was more fully averred that the real estate mortgage had been conveyed to appellant under her promise and agreement to pay the debt sued on herein. Moses Rhodes filed an answer, which we consider an insufficient attempt to plead usury, but not traversing the other averments in the petition.

At the January term, . 1898, the plaintiff dismissed, without prejudice, this action as to Mosesi Rhodes, and on the 15th of January, 1898, the appellee obtained judgment against appellant foij $871.52, besides interest, and also a judgment enforcing its lien upon the real estate mentioned herein.

In February, 1898, Moses and ■ Rosa Rhodes filed a petition and motion tor a modification oí the judgment hereinbefore entered, for errors appearing on face of the papers.

The material part of the petition so filed alleges that appellee advanced to defendants $2,600, and issued to them twenty-six shares of stock at $100 per share, and that on January 1,- 1897, all interest, dues, etc., had been paid, and there was owing on all the stock only $871.50; that the amended petition of plaintiff filed admits that defendant, at the time, to-wit, on January 1, 1897, the whole amount owed on nineteen shares of said stock had been repaid. They asked that this error be corrected, and said judgment of $871.50 be credited by $19.26 thereof, which would leave plaintiff entitled to a judgment of $234.64.

Several other reasons were given, based upon the pleadings, which* Rhodes contended entitled them to the relief prayed for.

While the case was being heard on the petition, the plaintiff was given time to file a response, and the response was allowed to be filed notwithstanding the objection of defendants.

The substance of the response is that by mistake of the draftsman “nineteen” was written instead' of “sixteen.” The motion of defendants was finally overruled, and from that judgment, as well as from the original judgment, Rosa Rhodes prosecutes this appeal.

We are not of the opinion that the answers of the defendants presented sufficiently the plea of usury; hence the court did not err in disregarding said answers. Nor do we think the court erred in allowing the response to be filed, as, taking the entire record together, it seems to us that the judgment was not in conflict with the pleadings. It will be seen that the court below repeatedly offered to allow appellant to plead further, which she declined to do. There is no denial of plaintiff’s averment that the mortgaged property had been deeded by Moses Rhodes to appellant upon her agreement and undertaking to pay the debt in question.

It therefore follows that the debt became her debt, and not simply the debt of her husband.

It is, however, insisted by counsel for appellant that the court erred in adjudging a sale of appellant’s land without the husband being a party to the suit, and we are referred to the statute which provides that the wife can not sell her real estate independently of her husband, and from that it is argued that he is a necessary party to the proceeding to sell her land under the judgment of a court. We do not think such a contention is tenable. We perceive no error in the proceedings prejudicial to the substantial rights of appellant.

The'judgment is therefore affirmed.  