dissenting opinion:
The petition for rehearing relied upon the cases of Tisdale v. Risk, 7 Bush, 141; Melone v. Armstrong, 79 Ky., 248; Ratcliffe v. Mason, 92 Ky., 190, 13 R., 551, 17 S. W., 438; Johnson v. Cantrill, 92 Ky., 59, 13 R., 497, 17 S. W., 206. Those cases were not overlooked on the former consideration of the case. But a reference to them will disclose that every one of them involved a sale of lands to satisfy a purchase-money lien. The statute being construed and applied provided that the wife should not be endowed of land of her husband, sold in good faith to satisfy a purchase-money lien thereon. Section 2135, Ky. St. Nor is she endowed of land sold by him, but not conveyed, before the marriage. No right of hers was or could be affected by the proceedings if either the land had been sold by the husband before the marriage, but not conveyed, nor if it was sold in good faith to satisfy a purchase-money lien. For her right as potential do.wress had never attached to the land. However, we apprehend that even in such state of case it would not be improper to join thei wife as a party defendant, under proper allegations, so> that the complete title might be assured to the purchaser.. But in the matter of a mortgage in which she has joined,, or which purports to be signed by her, the case admits that, she had a right in the premises, but asserts that she has: divested herself of it by an act which, under the statute, when executed by her before certain officiate and under certain formalities, extinguishes her right as against the plaintiff’s debt. That is true, but it is no truer than that the husband is by a similar act alone divested of his right in the land as against that debt. Why should not she have her day in court, as well as he, before their rights shall be foreclosed? Perchance, she did not sign the mortgage, *238or that she did so under duress, or by reason of the fraudi or deceit of the mortgagee, or she may have been non co.mpos at the time, or an infant, or she may have executed it for a certain consideration from the mortgagee to her, which had failed. Can it be said that she should be precluded, by a judgment in an action to which she is not a party, from making any such defense? There is an obvious distinction between one’s never having had a title, and having conveyed it as pledge or security for a debt. In the first instance the person may well be ignored. In the second there is always, under our practice, such an interest as permits the person whose property is to be taken in satisfaction of the debt to be heard and to redeem. The case of Helm v. Board (decided on the same day as was this case), 24 R., 1037; 70 S. W., 679, was likewise a case where a purchase-money lien had been enforced. The statute gave the wife, in that event, dower only in the surplus of land or its proceeds at the sale to enforce the lien. Helm v. Board merely followed Tisdale v. Risk, supra, and the other cases cited, and was cited in the opinion in this case as being in harmony with its doctrine.
For these reasons, and those stated in the original opinion, I can not concur in the opinion now filed by the majority of the court in this case. '
Chief Justice Burnam and Judge Nunn concur in this dissent.Petition by appellant for rehearing overruled.
Whole court sitting.