First National Bank v. Bruce

Fitzgerald, C. On April 12, 1889, defendant A. L. Bruce mortgaged the premises described in the complaint, and valued at two thousand dollars, to secure the payment of a certain promissory note executed by him to plaintiff for the sum of five hundred dollars. On April 28, 1890, said mortgage was duly recorded. On April 7, 1890, defendant I. A. Bruce, wife of said A. L. Bruce, who, with her husband and children, were then, and for two years prior thereto had been, actually residing on and using said premises (which was common property) 'as a home, declared a homestead thereon, without any knowledge on her part, if that be material, at the time of such declaration, that they had been previously mortgaged by her husband to plaintiff. In July, 1889, the defendant A. L. Bruce made and filed his homestead application and claim, under the homestead laws of the United States, on certain land adjoining said premises, and in February, 1890, he hauled several hundred feet of lumber on said claim, with which he afterwards built a house thereon, commencing the construction thereof about the 1st of March, and completing the same between the 10th and 17th of April following. On April 17,1890, defendants moved with their children and household goods from the land described in the complaint into the house built on the United States homestead claim referred to, where they continued thereafter to reside and make their home for about five months, when they abandoned the United States homestead claim and returned to the land described in the complaint, where they have ever since resided. It further appears that at the time the defendant I. A. Bruce filed her said declaration of homestead on said premises, she had full knowledge of all her husband’s acts in relation to said United States homestead claim, and that she intended to move with him therefrom to said claim, -which she afterwards did on April 17th following.

This action is brought to foreclose the above-mentioned mortgage, and I. A. Bruce, the wife, is joined as [79]a party defendant. Judgment was given in favor of plaintiff against defendant A. L. Bruce for the full amount of the note, with interest and costs, and in favor of the defendant I. A. Bruce against plaintiff for costs. The appeal is taken by plaintiff upon the judgment roll alone.

The only question presented by this appeal is, whether, upon the facts as above stated, the premises in question are subject to execution or forced sale in satisfaction of a judgment or decree founded on a debt secured by mortgage thereon, executed by the husband before, but not recorded until after, the declaration of homestead was made by the wife, such declaration having been made by her with full knowledge at the time of her husband’s intended removal from the premises, and with the intention on her part to remove therefrom with him.