McLaughlin v. Hart
Synopsis
Mortgaging Homestead.—If the husband' and wife own a tract of land, a part of which is claimed as a homestead, and both execute a mortgage ‘ on the whole tract to secure a debt, and the husband afterwards executes a • mortgage upon the part not covered by the homestead to secure his debt, and the first mortgagee forecloses, malting the other mortgagees parties, the second mortgagees cannot insist that tho homestead be sold, but the decree 'should direct the part not covered by the homestead to be first sold, and if the proceeds satisfy the first mortgage that the homestead be reserved from sale. The second mortgagees must rely on the surplus, if any, arising from the sale of the part not covered by the mortgage.
By the Court: It is clear that as against the McLaughlin mortgage Mrs. Hart had the right to insist that the outside lands included [640]in that mortgage should he exhausted before resorting to the homestead tract. In this view these outside lands constituted, to the extent of their value, a security provided against the possible sacrifice of her homestead to pay McLaughlin’s debt. This security, for obvious reasons, could not be impaired to her injury without her consent. The debts are owing by her husband, and the liens of the junior mortgagees upon the outside lands were created by him alone and without her consent, and to hold that these latter mortgagees may, for their own benefit, compel a sale of the homestead to satisfy the McLaughlin mortgage, would be in .effect to create a lien in favor of the junior mortgagees upon the homestead of Mrs. Hart without her consent.
Decree affirmed; remittitur forthwith.
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