McIlvain v. Moss , 3 Ky. Op. 508 ( 1869 )

Opinion of the Court by

Judge Robertson:

The appeal in this case, having been taken from the valid judgment of 1866 and not from the void judgment preceding it, is not barred by the statute of limitation, and the judgment appealed from is erroneous for the following reasons:

1. Although the sale of the 103 acres of land to the appellees must be deemed a sale of an unincumbered title, and the purchasers are therefore, entitled to either a perfect title unincumbered by Mrs. Mcllvain’s potential claim to dower as to compensation to the extent of its value, yet the estimated value is entirely too high.

2. Mrs. Mcllvain’s consent to the sale before it was decreed and her acceptance of $300 of the purchase money estopped her from asserting her contingent right of dower. Connolly vs. Rantler 3rd Bush 702.

And consequently, as she will, as a party to this record, be concluded by this judged estoppel, she can never availably assert a right to dower hereafter against the appellees. This assurance of unimbarrassed title is all the appellees should want or can be entitled to in this case.

The judgment for $500 is therefore reversed and the cause remanded for a decree conformable herewith.

Costs will not be adjudged to either party in this court and Mrs. Mcllvain’s improper claim to dower should subject the appellant to all the costs in the circuit court.

Pryor & Barbour, Scott, for appellant. Rodman, for appellee.