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HILLER v. NELSON et al.
COURT OF APPEALS OF KENTUCKY
118 S.W. 292; 1909 Ky. LEXIS 490
April 20, 1909, Decided
PRIOR HISTORY: [*1] Appeal from Circuit Court, Laurel County.
DISPOSITION: Reversed.
COUNSEL: E. H. Johnson for appellant.
W. L. Brown and Geo. G. Brock, for appellees.
JUDGES: BARKER, J.
OPINION BY: BARKER
OPINION
BARKER, J. John W. Nelson died intestate at his home in Laurel county, Ky., leaving a wife, the appellant, Belle Nelson Hiller, and two infant children by a former wife. Prior to his death he borrowed $ 540 from the East Bernstadt Banking Company, for which he and his wife executed their joint note, and to secure the payment of which they executed and delivered to the bank a mortgage upon the homestead in East Bernstadt which belonged to the husband. Before he died, he made a payment of $ 40 upon the note. After his death the bank, by proper proceeding in the Laurel circuit court, obtained a judgment on the note and enforced its mortgage lien. Under this judgment the homestead was sold by the commissioner and purchased by Mattie Nelson, the guardian of the two infant children of the decedent, for the amount of the debt, interest, and [*2] costs. Before the sale, as by law required, the property had been appraised; the appraisers fixing its value at $ 1,000. The price at which the purchaser obtained the property at judicial sales was less than two-thirds of the appraised value. Since the death of her former husband the widow has again married, and is now the appellant Belle Nelson Hiller. The two children of the decedent are with his relatives, and seem to be completely estranged from their stepmother. Within a year after the judicial sale the appellant tendered to the purchaser the full amount of the purchase price, with interest as by law required, and sought to redeem it. The tender was refused, and thereupon the appellant paid over the sum tendered to the county clerk as provided by statute. Over the protest of the appellant, who, by affidavit, set up the facts above set forth, the chancellor awarded a deed to the purchaser, refusing to require her to accept the tender of appellant, from which judgment this appeal is prosecuted.
The question arising upon this record is whether or not the widow of the decedent has a right to redeem the property under claim dower in the land. This resisted on the part of the purchaser [*3] on the theory at judicial sale is a personal privilege to the debtor or his representatives, and the wife has no right to redeem. It is also said that, where the wife joins with her husband in a deed or mortgage, she loses her dower, and therefore has no interest in the land sold. This last position is based upon section 2135. Ky. St. (Russells' St. § 4645), which is as follows: "The wife shall note endowed of land sold, but not conveyed by the husband before marriage, nor land, sold, in good faith, after marriage, to satisfy a lien or incumbrance created before marriage or created by deed in which she joined or to satisfy a lien for the purchase money; but, if there is a surplus of the land or proceeds, of sale after satisfying the lien, she may have dower out of such surplus of the land or compensation out of such surplus of the proceeds unless they were received or disposed of by the husband in his lifetime." And the argument is supported by a citation of Schweitzer v. Wagner, 94 Ky. 458, 22 S. W. 883, 15 Ky. L. Rptr. 229, and several other cases which construe the above statute and hold that, as against the mortgage creditor, the wife loses her right of dower where [*4] she joins in the instrument. There is no doubt of the soundness of the appellee's view of this statute and of the authorities cited, to the extent that the wife has no right of dower as against the creditor. But we are not dealing with the creditor here. It has its money, and the question is whether the purchaser can hold the property which has been sold at judicial sale for less than two-thirds of its appraised value. It will be observed that the foregoing statute, while its takes from the wife dower as against the creditor, where she joins in a mortgage securing his debt, especially invests her with dower in the surplus proceeds of the sale, if one be made to satisfy the lien created. So that by the very terms of the law upon which appellee rests her right to deny the widow dower in the land purchased by her, as above set forth, she is given dower in the surplus proceeds of the sale, and has a direct interest in the property bringing more than the debt, interest, and costs of the creditor.
So much of section 2364, Ky St. (Russell's St. § 80), as we deem necessary to set forth is as follows: "If the real estate which may be sold in pursuance of such judgment or order does not bring [*5] two-thirds of such valuation, the defendant and his representatives shall have the right to redeem the same within a year from the day of sale, by paying the purchaser or his representatives the original purchaser or his representatives the original purchase money, and ten per centum per annum interest thereon." Now, the appellant's rights seem to fall directly within its equity. The widow is embraced in the word " representatives" used in the statute above. The word "representatives" was intended to embrace all those who by law have an interest in the land of the decedent, and the statute itself was enacted to prevent the sacrifice of property at judicial sales. No good reason exists for narrowing the word "representatives" so as to exclude from the benefits of the statute the widow. This would be an invidious distinction between a man's wife and his (perhaps) distant heirs (if he had no children), which we believe to be wholly foreign to the intention of the Legislature. If the decedent in this case had left no children, this property, except the dower interest of the appellant, might have been cast by the law of descent upon some distant cousins. What good reason would there be [*6] for giving them the right to redeem in such a case, and refusing it to the widow? We think the widow, as well as the heirs, are embraced within the meaning of the word "representative," as used in the statute, and that she has a right to redeem the property when the conditions were such as property wen the conditions were such as to bring the transaction within the pale of to statute. It is a wise and beneficent statute, having due regard to the rights both of the purchaser and of the debtor and his representatives. The debtor can only redeem where the property fails to bring two-thirds of the appraised value; but, where he does redeem, he is required to pay the full original purchase money, with 10 per centum interest thereon. The object of the statute was to provide, in part, at least, for just such a condition of affairs as were have here. The purchaser has obtained the property in which appellant has a doer interest in whatever remained after the payment of the mortgage debt for less Than two-thirds of its value, assuming the appraisement to be correct. It seems to us that there can be no doubt that the latter has a right under the statute to pay the purchase money, with 10 per [*7] centum interest, in order to obtain for herself the benefits of the dower in the surplus over and above the mortgage debt. As the purchase of the widow will rebound to the benefit of the two infant children, they should be required to contribute their pro rata of the money paid in order to participate in the benefit of the redemption. The fact that the purchaser now claims that she made the purchase for the benefit of the infant children does not alter the principle as to the appellant's right. We think the duty of contribution on the part of the infants, if they desire to enjoy the benefit of the infants, if they desire to enjoy the benefits of the redemption, is authorized, if not by the appellant's right. We think the duty of contribution on the part of the infants, if they desire to enjoy the benefit of the redemption, is authorized, if not by the statute of contribution, by the general equitable doctrine of contribution. Suppose for the sake of illustration that a stranger had purchased the land for his own use and the widow had redeemed it, as she is seeking to do in this case; with what show of equity could her stepchildren claim to enjoy the land she had redeemed with her own [*8] money, without contributing their pro rata to the sum paid out in the redemption? The widow in this case had paid over to the county clerk the full amount of the redemption money required by the statute. This it is the duty of the purchaser to take, and of the court to require her to take if she refuses; and, after this is done, the widow will, in effect, have paid off the full amount of the original mortgage debt.
On the subject in hand, Pomeroy, in his Equity Jurisprudence, § 1222, says: "It is a general doctrine of equity that where a common charge rest upon a fund which belongs to several owners, who stand upon a footing of equality with respect to their individual titles and relations with the holder of the charge, the burden should rest ratably upon each separate portion of the fund; and if the owner of one portion, for the purpose of protecting his own interest, pays off the common charge, he is entitled to call upon the others owner to contribute their proportionate shares of the amount thus paid. This doctrine is a simple application of the maxim, 'Equality is equity.' Whenever, therefore, a mortgage rests upon land which is owned by several persons in such a manner that [*9] their equities as between themselves are equal, and one of them redeems from the mortgage, he is entitled to a pro rata contribution from the other owners, and may keep the lien of the mortgage alive by equitable assignment as security for such contributions."
For the foregoing reasons, the judgment is reversed, with directions for further procedure consistent with this opinion.
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