
    R. B. Gaddie, et al. v. S. S. Hodges.
    [Abstract Kentucky Law Reporter, Vol. S — 241.]
    Waiver of Homestead by Mortgage.
    Where a mortgage in terms purports to convey all the interest held by either husband or wife in the land mortgaged, and the mortgage is signed and acknowledged by the husband and wife, the homestead goes in the mortgage as the fee does in a deed, and the right to a homestead is effectually waived.
    APPEAL FROM HART CIRCUIT COURT.
    September 13, 1883.
   Opinion by

Judge Hines:

The question here is whether the court below erred in allotting to appellee a homestead. The action is for the foreclosure of a mortgage signed by appellee, S. S. Hodges, and his wife, M. R. Hodges. The body of the mortgage purports to have been executed by S. S. Hodges and his wife, M. N. Hodges, while the signature to the mortgage are S. S. Hodges and M. R. Hodges, and the certificate of the clerk follows the signature, giving the wife’s name as M. R. Hodges. It is alleged in the petition and not denied that by mistake the initial “N” in Mrs. Hodges’ name was inserted in the body of the mortgage, and that she signed the true initial “R” and properly acknowledged the mortgage. The identity of the person executing and acknowledging the mortgage is clearly established, so that there can be no mistake that the wife of S. S. Hodges united with him in the mortgage.

The only other question is whether the terms of the mortgage are such as to convey the wife’s homestead interest. As to this we see no difficulty. The mortgage in terms purports to convey all the interest held by either husband or wife in the land, and in such case it has been repeatedly and expressly held that the homestead goes in a mortgage as the fee would in a deed with similar language. Vaughn v. Owsley, 11 Ky. Opin. 222, 3 Ky. L. 249. The court erred in allowing a homestead as to the mortgage debt.

Woodson & Macy, for appellants.

[Cited, First Nat. Bank v. Root, 20 Ky. L. 1863, 50 S. W. 16.]

Judgment reversed with directions to subject the whole of the mortgaged property to the payment of this debt.  