Van Reynegan v. Revalk
Before: Burnett, Murray
Synopsis
Where, after judgment of foreclosure had been taken in an action against the husband solely, on a mortgage on the homestead premises, executed by him alone, the husband and wife joined in a mortgage to a third party: Held, that the foreclosure bound no one as to the homestead, and that the second mortgage was absolute as against the homestead.
The wife’s decease before the second mortgage was recorded, does not impair it as against a void mortgage.
The cases of Revalk v. Kraemer, and Dorsey v. McFarland, affirmed.
Burnett, J., after stating the facts, delivered the opinion of the Court—Murray, C. J., concurring. The questions arising in this case have been decided by this Court in the cases of John Revalk and wife v. Kraemer et al., July, 1857, and of Dorsey v. McFarland and Downey, April, 1857.
The property being the homestead, the mortgage to Kraemer and Eisenhardt was void, and. could not be rendered valid by the subsequent death of the wife. The proceedings in the case of Kraemer and Eisenhardt, in the Twelfth District Court, did not bind either Revalk or his wife, as to their right of homestead. They had the right to mortgage or sell in the same way as if those proceedings had not been instituted. Pixley and Smith had a right to take their mortgage. .Their failure to record until after the death of Mrs. R., could, in no wise, impair their rights as against a void mortgage.
The- judgment of the Court below is reversed, and that Court will enter a decree for the plaintiff.
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