HOMESTEAD EXEMPTION—(Continued.)
13. AT THE DEATH OF THE HUSBAND ALL HIS RIGHT TO THE HOMESTEAD PASSES TO HIS WIDOW and children occupying the same. Ibid...............
414 14. A WIDOW'S RIGHT TO A HOMESTEAD OUT OF THE PROCEEDS OF HER HUSBAND'S REAL ESTATE can not be reached by her own creditors, but such homestead may be sold, subject to the widow's occupancy and that of the infant unmarried children, if necessary to pay the debts of the husband. Ibid.............
15. A MORTGAGE ON THE WIFE'S LAND TO SECURE HER OWN OR HER HUSBAND'S DEBT, executed and acknowledged by her and her husband, and recorded as provided by law, is effectual as to her and her land and her homestead right therein. Drye, &c. v. Cook & Green's trustee, &c ..........
459 16. HOMESTEAD IN LAND, HELD UNDER TITLE-BOND, IS NOT WAIVED by a mortgage in which the wife did not join. Griffin v. Proctor's adm'r......... .... 571 17. Such a homestead can not be subjected to the payment of a debt created after the purchase of the land, but before it was paid for, or conveyed to the purchaser. Ibid...........
18. THE RIGHT TO A HOMESTEAD EXEMPTION is purely statutory, and if not found in the letter and spirit of the law, it can not be raised by implication, through the rule of liberal construction which is applied to facilitate the object of the statute where the subjects of its bounty are made manifest. Little's guardian v. Woodward, &c.......... ... 585 19. THE HUSBAND TOOK NO HOMESTEAD INTEREST IN THE LAND OF HIS DECEASED WIFE under the homestead act of 1866, and, at his death, no homestead right therein survived to his and her infant children. Ibid..........
....... 585 20. But the homestead right of a deceased wife is secured to her husband and unmarried infant children, by section 15, article 13, chapter 38, General Statutes. Ibid....
21. A HOMESTEAD DERIVED THROUGH A DECEASED HUSBAND can not be forfeited as against the children by abandonment or cessation of occupancy.
But the homestead of the husband and children derived through a deceased wife may be lost by alienation or abandonment, as might be done by the husband of his own homestead during the life of the wife.
1. THE DEED OF A MARRIED WOMAN, like that of a person sui juris,
is good against a purchaser for a valuable consideration, or against
creditors from its date, if it is legally lodged for record within
sixty days thereafter; and if not legally lodged for record within
that time, it will be effectual whenever so lodged, and from the
date of such lodgment. (General Statutes, chap. 24, sec. 10, 11,
14, 15, 19, 21, 22, 23.) Finley, &c. v. Spratt & Co............ 225
2. THE MORTGAGE OF A MARRIED WOMAN, like that of one sui juris,
is good when legally lodged for record.
The mortgage of a married woman is enforced in this case,
although not lodged for record for more than a year after it was
acknowledged. Ibid.....
225
3. THE MARRIAGE OF A FEMALE GUARDIAN does not dissolve the rela-
tion of guardian and ward.
While marriage of a female guardian may be sufficient cause
for her removal, in the absence of any consent by her husband
that she should remain guardian, it does not dissolve the relation
of guardian and ward. Cotton's guardian, &c. v. Wolf....... 238
4. A DEED REGULARLY EXECUTED BY A MARRIED WOMAN AND RE-
CORDED, together with a certificate of acknowledgment, valid on
its face, will pass her title, and, in the absence of fraud, is not
subject to be impeached by parol evidence. Harpending's ex'rs
v. Wylie, &c.........
380
5. CORN STANDING ON THE WIFE'S LAND, HELD AS GENERAL ESTATE,
is subject to levy and sale under an execution against her hus-
band. Moreland, &c. v. Myall, &c...........
474
6. THE PRODUCTS OF THE WIFE'S LAND, HELD AS GENERAL ESTATE,
can not be vested in her, or converted into her separate estate, by
the conduct or parol agreement of her husband, while they both
live on the land. In such a case, the possession of the products
would be presumptively in the husband. Ibid.................. 474
7. THE STATUTE EXEMPTING THE RENTS OF THE WIFE'S LAND FROM
HER HUSBAND'S DEBTS does not change the rule of the common
law, that all personal property belonging to the wife at her mar-
riage, or acquired by her afterward, belongs to the husband by
reason of the marital relation, unless such property is the sep-
arate estate of the wife. Ibid.......................
8. Annual crops of grain planted or sowed, to be in due season severed
from the soil, are not and never have been considered as real
property. Ibid..........
9. A POST-NUPTIAL CONTRACT BETWEEN HUSBAND AND WIFE,
HUSBAND AND WIFE-(Continued.)
whereby she put her money in his hands to be vested by him in
a house and lot to be conveyed to her, would be enforcible as be-
tween the husband and wife; but after the husband has invested
the money and caused the house and lot to be conveyed to him-
self, and becoming embarrassed has made an assignment and
conveyed the house and lot to his assignee for the benefit of his
creditors, such contract between himself and wife will not be en-
forced in favor of the wife in preference to creditors. (Pryor,
&c. v. Smith, &c., 4 Bush, 379; Whitesides v. Dorris and wife, 7
Dana, 108; Martin v. Trigg, 8 B. Mon. 529; Latimer v. Glenn,
2 Bush, 543; Watson v. Robertson, 4 Bush, 39; Maraman v.
Maraman, 4 Met. 90.) Darnaby v. Darnaby's assignee......... 485
10. THE WIFE of a lunatic, KNOWING HIS INSANITY, IS ESTOPPED
from making complaint in her own right in this case-wherein she
joined with him in the conveyance of eighty acres of her land in
part payment for a steamboat purchased by him-by concealing
his insanity and assisting him in making repairs on the boat and
acquiescing in the purchase, until the boat was seized for the
repairs, etc., when it was too late for the other party to be put in
statu quo, in consequence of the seizure of the boat, and the in-
solvency of her husband. Rusk v. Fenton.........
..... 490
11. Coverture will not be permitted to be invoked and used as a cloak to
fraud. (Davis v. Tingle, 8 B. Mon. 542; Bailey v. Barnberger,
11 B. Mon. 115; Wright v. Arnold, 14 B. Mon. '643; Connolly,
&c. v. Branstler, 3 Bush, 702.) Ibid.........
490
12. A MARRIED WOMAN EMPOWERED TO CONTRACT, ETC., AS A FEME
SOLE, is bound upon any contract she may make under the power,
and is subject to all the remedies to which she would have been
subject if unmarried. Hart v. Grigsby.............
12. A married woman empowered to contract, etc., as a feme sole, as pro-
vided for in the act of February 14, 1866 (Myers's Supp. 728),
may bind herself as the surety of a third person. Ibid........ 542
14. A judgment empowering a married woman to contract, etc., as a feme
sole, rendered by a court of chancery jurisdiction, when attacked
collaterally, will not be held to be void because the record fails
to show by averment or proof that the petitioners were residents
of the county in which the proceedings were had (Jacob's adm'r
v. L. & N. R. R. Co., 10 Bush, 267; Newcomb v. Newcomb, 13
Bush, 544), or because the affidavit proving the publication of
the notice was defective. Ibid...........
542
15. A MARRIED WOMAN EMPOWERED TO CONTRACT, ETC., AS A FEME
Husband and Wife-Indictment.
HUSBAND AND WIFE-(Continued.)
SOLE may employ her husband to act as her agent.
ex'rs v. Shearer.......
16. A JUDGMENT EMPOWERING A MARRIED WOMAN TO CONTRACT,
ETC., AS A FEME SOLE, although erroneous, is not void, because
there is no order of court designating the newspaper in which
the notice of the application should be published, or because the
evidence of the fact of publication is not such as is required by
the statute. Mann v. Martin, adm'r, &c..........................
763
17. JURISDICTION IN PROCEEDINGS TO EMPOWER A MARRIED WOMAN TO
CONTRACT, ETC., AS A FEME SOLE depends upon the fact of publi-
cation rather than the manner of proving it.
The act of the court in basing the decree upon the publication as
made, although erroneous, is conclusive of the question of juris-
diction, and, although erroneous, the decree is not void.
Ibid......
(See also Homestead Exemption.)
IDIOTS AND LUNATICS. (See Lunatics.)
1. "A STATEMENT OF THE ACTS CONSTITUTING THE OFFENSE," etc.
This provision of section 122 of the Criminal Code applies to
every indictable offense. Commonwealth v. Riley..............
2. AN INDICTMENT FOR KEEPING A TIPPLING-HOUSE" is held to be
sufficient. (Morrison v. Commonwealth, 7 Dana, 218; Common-
wealth v. Turner, 4 B. Mon. 4; Same v. Allen, 15 B. Mon. 1;
Same v. Harvey, 16 B. Mon. 1.)
In passing upon the sufficiency of such an indictment in this
case the court say, "By the foregoing adjudications it will be
seen that this court has repeatedly held, both before and since
the adoption of the Criminal Code, the mere charge that the de-
fendant had, before the finding of the indictment against him,
been guilty of keeping a tippling-house, was a sufficient definition
of the offense charged, and a sufficient statement of the acts con-
stituting such offense, and we feel constrained to adhere to the
rule as settled by these adjudications of this court, together with
others not referred to in this opinion." Ibid................. .... 44
3. AN INDICTMENT AGAINST A MERCHANT FOR SELLING SPIRITUOUS
LIQUORS WITHOUT A LICENSE must contain a statement of the
acts constituting the offense. Wilson v. Commonwealth...... 159
4. The general charge that a merchant has sold whisky, etc., without
stating to whom the sale was made, is too general.
An indictment charging that "E. K. Wilson, on the 18th day
of January, 1878, in McCracken County, did unlawfully, he be-
ing a merchant in Paducah, Ky., sell spirituous liquors, viz.
whisky, brandy, and gin, at his store, in said city, without hav-
ing obtained a license to sell such spirituous liquors," is too gen-
eral, and is held to be insufficient. Ibid.............
159
5. AN INDICTMENT UNDER THE LOCAL-OPTION LAW should be drawn
as indicated in the opinion in this case. Young v. Common-
wealth......
.... 161
6. ACCUSED HAS A RIGHT TO BE INFORMED OF THE NATURE AND
CAUSE OF THE ACCUSATION AGAINST HIM, and to look to the
indictment to ascertain what the facts are to which he is to an-
swer. Furnish v. Commonwealth......
7. INDICTMENT MUST SET OUT THE FACTS which the accused is to
Under an indictment for a simple assault it was error to allow
proof of a battery.
Every battery includes an assault, but every assault does not
include a battery, therefore an assault and battery is an offense
of a higher grade than a simple assault. Ibid...................................................... 180
8. THE OFFENSE OF ROBBING ANY PERSON IN HIS DWELLING - HOUSE,
etc., provided for in section 4, article 5, chapter 29 of General
Statutes, partakes of the nature of both robbery and larceny, and
in order to render an indictment good the constituent elements
of both offenses must to a certain extent be charged; and among
the essentials is that of the intention to deprive the owner of his
property, and to permanently convert it to the use of the taker.
The indictment was insufficient in this case, in that it did not
charge that the taking was with the intention to deprive the
owner of his property, or to convert it to the use of the accused.
Ward v. Commonwealth...............
9. INDICTMENT FOR SELLING LIQUOR TO AN INEBRIATE, under the act
of March 6, 1878, must allege that the defendant knew the party,
to whom the liquor was sold, to be an inebriate. Commonwealth
v. Bell.......
10. GRAND JURYMEN ARE REQUIRED TO BE CITIZENS and housekeepers
of the county, and over the age of twenty-one years. (Art. 1,
chap. 62, Gen. Stat.)
The failure of any member of the grand jury to possess each
of the qualifications prescribed by the statute, renders indict-
ments found by such jury subject to be set aside as for a substan-
tial error in the formation of the grand jury. (Commonwealth v.
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