Peterson v. Hornblower
Before: Rhodes
Synopsis
Mortgage and Sale of Homestead under the Act of 1851.—The Homestead Act of 1851, providing that “ the homestead % * * shall not be subject to forced sale on execution, or any other final process from a Court,” etc., and that “ such exemption shall not extend to any mechanic’s, laborer’s, or vendor’s lien, or to any mortgage lawfully obtained,” did not limit said exemption to mortgages for the purchase money, but comprehended all that the parties might, in the mode pointed out in the Act, execute for any purpose.
Mortgage of Homestead under the Act of 1860. — Under the amendatory Homestead Act of 1860, a homestead could only be acquired or abandoned by the written declaration of the parties, and no mortgage thereof, to secure a loan or indebtedness, was valid, except to secure the purchase money, and then, if the mortgagor were married and the wife resided in this State, not unless the mortgage was executed and acknowledged by her.
Idem.—In the clause of section two of the Act of 1862, which provides that “ no alienation, sale, conveyance, mortgage, or other lien of or upon the homestead property, shall be valid or effectual for any purpose whatever, unless the same shall be executed by the owner thereof, and be executed and acknowledged by the wife,” etc., the words “ mortgage or other lien,” are descriptive of all other mortgages and liens than those enumerated in said first clause, and conserved and confirmed the right of voluntarily alienating or incumbering the homestead by a compliance with the requirements contained in the Act, as to the mode of its accomplishment.
Mortgage of Homestead. — The husband and wife are not restrained by the Homestead Act of 1862 from mortgaging or otherwise charging the homestead to secure the payment of a loan ; nor is a sale of the same, in pursuance of an express power contained in the mortgage thereof, or a judgment of foreclosure, prohibited ; nor is a voluntary alienation of the homestead by the husband and wife, prohibited.
Forced Sale.—The phrase “ forced sale,” as used in the eleventh Article, section fifteen, of the Constitution, which provides that “ the Legislature shall protect by law from forced sale, a certain portion of the homestead and other property of all heads of families,” and where used in the several statutes, passed in pursuance of this constitutional requirement, is not synonymous with “ sale on execution,” etc., but means a sale against the will of the owner, and does not apply where the owner consents directly to the sale, or does so indirectly by consenting to or doing those acts or things that necessarily or usually eventuate in a sale, as, instance—a sale under a power contained in a mortgage or a decree of foreclosure.
Defective Pleading on Appeal.—The objection that the complaint is defective, because it is not alleged that plaintiff's claim was presented to the administrator for allowance, cannot be taken for the first time in this Court.
Opinion — Rhodes
By the Court, Rhodes, J. : Henry Miller, and Catharine, his wife, on the 5th of April, 1865, executed to the plaintiff a mortgage of certain real estate, to secure the payment of a promissory note given by Miller to the plaintiff for a sum of money loaned by the plaintiff to Miller. In 1861 Miller made a declaration of homestead upon the premises that were subsequently mortgaged to the plaintiff. The only question is whether, under the provisions of the Homestead Act of this State, the mortgage is void.
The first section of the Homestead Act of 1851 provided that “ the homestead * * * shall not be subject to forced sale on execution, or on any other final process from a Court,” etc.; and the third section, providing that “ such exemption shall not extend to any mechanic’s, laborer’s, or vendor’s lien, or to any mortgage lawfully obtained,” is not limited to mortgages for the purchase money, but comprehends all that the parties may execute for any purpose. The section proceeds to declare how such mortgages (as well as sales and other alienations) shall be executed—that is to say, if the owner is a married man, and his wife is a resident of this State, she also must execute and acknowledge the mortgage, unless it be a mortgage to secure the purchase money, in which case her signature is unnecessary. Ho provision is made in this Act for a written declaration of abandonment of homestead.
Several changes in the system were wrought by the Act of 1860. (Stats. 1860, p. 311.) Section one provides that the homestead to be selected by the husband and wife, or either of them, or other head of a family, shall not be subject to [273]forced sale on execution or other final process ; and provides for the selection of the homestead by a declaration in writing, and then declares that the husband and wife shall hold the same as tenants in common. It is provided by section two that “ such exemption shall not extend to any mechanic’s, laborer’s or vendor’s lien, lawfully obtained, hut no mortgage or alienation of any kind, made for the purpose of securing a loan or indebtedness upon the homestead property, shall be valid for any purpose whatever, provided that a mortgage or alienation to secure the purchase money shall he valid if the signature of the wife be obtained to the same and acknowledged by her separately and apart from her husband.” Following this is a provision for the abandonment of the homestead by a declaration in writing, and the further provision that the signature of the wife, who is a non-resident of the State, is not essential to the validity of a mortgage or alienation of the homestead before it has become the homestead. It thus appears that under the Act of 1860 the homestead must be acquired and abandoned by the written declarations of the parties; that no mortgage to secure a loan or indebtedness was valid except a mortgage to secure the purchase money, and the latter must be signed and acknowledged by the wife. Under the Act of 1851 a mortgage of the homestead to secure a loan was valid if executed and acknowledged by the wife, hut under the Act of 1860 it was declared invalid.
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