Lassen v. Vance

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. The defendant, James Yance, resided, with his wife, upon certain premises as the tenant of Francis Melius, for some two years prior to the fourth of January, one thousand eight hundred and fifty-six. On that day, defendant, James Yance, borrowed of plaintiff three thousand dollars, and executed to him a note, and a mortgage upon the premises, and at the same time took from Melius a conveyance to himself. The money borrowed of the plaintiff was paid to Melius for the lot. The defendant James Yance, and wife, continued to reside upon the premises, and claimed the right of homestead as against the mortgage to plaintiff. The Court below decreed the sale of the mortgaged premises, and Yance and wife appealed to this Court.

It would seem that the defendants, Yance and wife, have neither an equitable or legal right of homestead in the mortgaged premises. The deed from Melius to James Yance, and the mortgage from him to plaintiff were simultaneous acts, and the money borrowed was the entire amount paid for the lot. The money of plaintiff paid for the lot, and it certainly would be an exceedingly harsh rule of law, that would defeat his mortgage upon the very property purchased with the money furnished by himself.

In his Commentaries, Chancellor Kent says:

“ A transitory seizin for an instant, when the same act that gives the estate to the husband conveys it out of him, as in the case of a conusee of a fine, is not sufficient to give the wife dower. FTor is the seizin sufficient when the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor, or to a third person, to secure the purchase-money, in whole or in part.” 4 Kent, 39.

The doctrine laid down by the learned American commentator was fully sustained by the Supreme Court of the United States in the case of Mayberry v. Brien and others, 15 Peters, [27521]. Also, by other cases. 1 Sanford Ch. R., 76; 4 Leigh, 30; 15 John. R., 458 ; 4 Mass. R., 30; 6 Texas, 303.

The deed and mortgage being simultaneous, were but parts of the same transaction. 15 Johns. R., 462; 4 Mass. Rep. 569; 12 Mass., 352.

Judgment affirmed.