11 Iowa 375 | Iowa | 1860
Lead Opinion
The cause was submitted to the court below
The mortgage was duly signéd'-ánd acknowledged by both husband and wife, the premises were described therein by ■numbers, metes and bounds, but it was not expressly stated that it was the homestead that was intended thereby to- be transferred to complainant. The question presented by appéllants for the consideration of this court is whether the homestead of respondents is liable to be sold under a mortgage of this character for the debt of the husband alone, or .whether the husband and wife, when they executed and delivered to complainant the mortgage upon the homestead 'thereby waived its exemption from judicial sale.
' Under our statute, the homestead of every head of a family is exempt from judicial sale, when there is no special declaration of the statute to the contrary. There are exceptions, however, to this general exemption. It is liable to be "sold for taxes, under a mechanic’s lien, for debts contracted prior to the passage of the homestead act, or to the purchase thereof, or for debts created by written contract by persons having the power to convey and expressly stipulating that the homestead should be liable therefor. It is also provided by section 1247 of the Code (sec. 2279 of the Revision) that a conveyance by such owner is of no validity unless the husband and wife, (if the owner is married,) concur in and sign
Did the legislature, in the adoption of this section, intend to embrace mortgages within the meaning of the term conveyance? Giving to the word conveyance a construction according to the approved usage of language, or the peculiar and appropriate meaning it has received in law, would it not apply to, or include mortgages as well as absolute transfers of titles? “A mortgage is the conveyance of an estate by way of pledge for the security of a debt and to become void upon the payment of it.” 4 Kent Com. 138. “A mortgage may be described to be a conveyance of lands by a debtor to his creditor,” &c. Bouv. L. D. “Mortuum vadium, dead pledge, or mortgage, is where a debtor actually conveys lands to his creditor,” &c. Walker’s Am. L. 293. “A mortgage is a conveyance of property and passes it conditionally to the mortgagee.” United States v. Foster, 2 Cranch. 358. “A mortgage is not only a lien for a debt, but it is something more, it is a transfer of the property itself as a security for the debt.” Conrad v. Atlantic Insurance Co., 1 Bet. 441. “A mortgage is the conveyance of an estate.” 1 Hilliard on Mortgages, 2. “A mortgage not only creates a lien but operates to transfer to the mortgagee a qualified or conditional estate,” &c.; and a “ mort'gagee is a purchaser within the meaning of our registry law.” Porter, et al, v. Green, et al, 4 Iowa 571.
The authorities, without exception, speak of a mortgage as a conveyance. We are inclined to think that our legis
We also think that this court has regarded a mortgage as a conveyance and recognized the validity of a mortgage upon the homestead when the husband and wife concur in executing the same. The purchaser at the sale, under the foreclosure of a mortgage executed by a husband and wife, of their homestead, obtains a title good against a prior mortgage of the homestead executed by the husband alone, although in a suit to foreclose such prior mortgage the husband and wife are made parties and make no defense. Alley v. Bay, 9 Iowa 509. .So also in the case of Dickson, et ál, v. Ohorn, et al, 6 Iowa 19, the right to incumber the homestead by a mortgage is clearly recognized. The court in their opinion say, “ that Chorn and Dickson and their wives might at their option execute a mortgage upon their homestead to any creditor,” &c. “ The extent of the incumbrance in such case would be to secure the particular debt named,” &c. Again, in speaking of the homestead, it is said, “ that the law gives to these debiors the right to claim their property as exempt and sets it apart for the benefit of their families. By the concurrence of those who may convey it, it may be incumbered,” &c. The right of the husband and wife
We conclude that a mortgage is a conveyance within the meaning of section 1247,as above recited. And when the husband and wife concur in and execute a mortgage upon their homestead they thereby waive their right to hold the same as exempt from judicial sale.
A mortgage thus executed is valid and confers upon the mortgagee the right to foreclose the same as if it had been given upon any property other than the homestead.
Judgment affirmed.
Lowe, C. J. dissenting.
Dissenting Opinion
dissenting. — As the provisions of the home- . stead law are of very great interest and importance to the people of this State, it is to be regretted that this court should be divided in sentiment in regard to its object and policy. Nevertheless, I have been unable to persuade myself that a majority of the court have reached a proper conclusion in the interpretation of its terms or true meaning ; and therefore it is made my duty, by law, briefly to state the grounds of my dissent. Undoubtedly the primary object of this humane law, was to protect those members of ■ the family who are least capable of protecting themselves (such as the wife and children) from the misfortunes that not unfrequently overtake the husband in business, in the vicissitudes of trade, in the recklessness of adventure, or in the more common habits of improvidence and dissipation. This object being patent from the whole scope and intendment of the law, it follows that that interpretation of its provisions which best accomplishes this object without doing violence to its express terms, is the one that should be adopted. This rule of interpretation admits of no departure. Now, to my mind, the construction given to the first five sections of this law by my associates,, defeats its main purpose or policy.
The first section of this law, being section 1245 of the Code of 1851, declares that the homestead of every head of a family shall be exempt from judicial sale except as therein specified. These exceptions are all enumerated in two other sections, to-wit, sections 1248 and 1249. The first of these refers to taxes and mechanics’ liens. Section 1249 reads as follows: “It (referring to the homestead) may also be sold on execution for debts contracted prior to the passage of the law, or prior to the purchase of such homestead, or for those created hy written contract executed by the persons having the power to convey, and expressly stipulating that the homestead is liable therefor.”
It is only under these enumerated exceptions that the
The question for the determination of the court is, whether such a mortgage falls ' within the above exceptions. I am myself clear in the opinion that it does not, for the reason that it does not conform in its execution and terms to the meaning and positive requirement of the last exception in section 1249. I do not mean by this declaration that a mortgage is not of the description of written contracts included in said section; on the contrary I think they are primarily alluded to, for the expression “ having the power to convey ” necessarily, ex vi termini, refers to that class of written contracts of indebtedness which are to be executed' in the form of conveyances by the parties themselves. What can these be except mortgages and deeds of trust? We know that they constitute an important class of indebtedness and that judicial sales are constantly being made" tinder them. I do not say that ordinary notes and bonds were not intended also to be embraced in this exception. This is quite probable. Yet I insist that debts in this form, judging from the natural import of the language employed,, are not so distinctly meant or contemplated, as were mortgages or that class of debts created by written contracts which take the form of conveyances by way of pledge or security for the debt, because the words of the law are that they must be executed by the persons ‘'-having the poiver to convey.” I take it, therefore, that mortgages and deeds of trust were primarily intended to be included in this section.
This point established, the next question presented is, how shall the mortgage be executed in order to bring the homestead within the exception, so as to subject it to judicial sale? Surely, in the manner prescribed by the law.
Now it seems to me that we can not be at a loss to discover the true meaning and policy of this law, nor the; motive which led to its enactment. It was to bring clearly within the contemplation of the parties executing the mortgage, (and especially the wife,) the fact that their homestead was to be rendered liable for the debt described therein, so that neither of them might be deceived or imposed upon or induced to sign an instrument which -would endanger their homestead, without a distinct knowledge of the fact.
- The thought expressed in this law, or the evil intended to be guarded against by it, is obvious. It is a well known fact that not one woman in fifty, perhaps, would recognize her homestead when simply described by its legal subdivisions, bounds or numbers. And hence she would be liable to be misled either by the artifices of others, or by her own negligence, whereas if her attention was directly challenged to the fact that she was incumbering her homestead, she might pause and reflect before she acted.
I presume it would be conceded that if the homestead was to be sold on an execution issued upon a judgment founded upon a note of hand signed by both husband and wife, but which did not contain the stipulation required by the law, that the sale -would be illegal and would not divest the parties of their home if they chose to assert their rights. Well, does section, 1249 make any distinction in this respect' ■between a note and a. mortgage ? Certainly none, and it is .
I have already anticipated in part the answer to this view of the subject in my allusions to the policy of this law, and the particular evils which were intended to be obviated. But conceding that such would be the legal intendment of the instrument, yet as a matter of fact we know that it is quite possible, to say the least, that this effect might be at vainance with the actual intention of the parties, or without the actual assent of one or both, as for instance, where the wife failed to recognize her homestead by the legal description set out in the mortgage, and signed the same without knowing that her home would be liable by that act to be taken from her. Now, the policy of this law is to avoid this disagreement between the legal effect of the instrument and the actual assent or concurrence of the parties, and to secure their harmony by requiring in all cases of written liabilities for money intending to affect the homestead, that there should be an express covenant that the same should be liable for the debt. That this was the legislative intent, is too plainly expressed in words to admit of much doubt in my mind. 'With the policy of such a law the court has nothing to do. Nor are they at liberty to abridge or add to any law whatever, for this would be legislation.
The doctrine of the courts has always been that beneficial statutes, such as the one under consideration, should be liberally construed. The narrow construction above alluded to would fail to make effectual the object of this law, or reflect its true meaning.
The reasons of my non-concurrence in this exposition of the homestead law will be briefly stated:
First. Section 1247 does not purport upon its face to be an exception to the general right of homestead exemption conferred by section 1245. It does not make the slightest reference to judicial or forced sales as sections 1248 and 1249 do, in which, really, are to be found all the exceptions to the general rights, which, in my opinion, were contemplated by the law. It evidently refers to ordinary alienations- or conveyances of property by bargain and sale, the object of which was to protect the wife in the enjoyment of her homestead if she insisted upon it, against the voluntary conveyance of the husband without her concurrence and signature, in the same way and to the same extent that she is protected from judicial sales. In the absence of the provision contained in section 1247 the husband could sell and convey his homestead and give the purchaser possession1 whether his wife was willing and had. signed the deed or not. But now, under this section, a deed of conveyance transferring the title and ownership of the homestead is invalid unless the husband and wife both join in the execution of the same. So that we find a sufficient reason for the enact- ’ ment of this section without making it to include mortgages, • the manner of executing which, in order to affect the homestead, is specially provided for in section 1247. If it should: be asked why, in a deed conveying the title and ownership of the homestead, there is not the same necessity of an express stipulation, such as is required in a mortgage, to the effect
The position that section 1247 was not intended to include mortgages, derives additional strength from the consideration that under our Code of laws the legal character of a mortgage is essentially changed and simplified from what it was under the old law. Under our reformed system, a mortgage does not transfer to the mortgagee the legal title, the ownership, or the possession ; but simply gives him a specific lien, or a security upon the land for the payment of a debt, while the legal estate or fee, the right of possession and use, all remain in and under the control of the mortgagor until sale after foreclosure, which has the effect to cut off his equity of redemption and to divest his title.
. The mortgagee, even after forfeiture or default in payment of the money could not maintain an actiun of right for the possession of the mortgaged premises prior to a foreclosure and sale, for the reason that he has no title upon which he could found such a suit. Yery different was the nature of a mortgage under the law that generally prevailed before the adoption of the Code. Under it the mortgage created an estate on condition, passed the legal title at once to the mortgagee and gave him the right to sue for the debt, bring ejectment for possession, and foreclose in equity, all at the same time. It was because of these large powers, and especially the holding of the legal title and the right to maintain ejectment, that a mortgage was defined by the elementary writers as a conveyance, which always implies a transfer of the legal ownership. But this definition can have no application to a mortgage under our law, which gives to it no
It is true, in the case of Porter v. Green, 4 Iowa 571, this court properly held that a mortgagee was a purchaser within the meaning of the recording acts of this State. This simply means that a mortgage duly executed, acknowledged and recorded protects a mortgagee to the same extent that a purchaser is protected by the recording of his deed, but not that the mortgagee takes the title and ownership of the property mortgaged in the same sense that a purchaser does • under his conveyance.
In support of the view which I have been compelled to take of the homestead law, I would refer, in conclusion, to the case of Kitchel v. Burquin, et ux, 21 Ill. 42. The decision in that case was founded upon a statute which declared that a homestead to the value of $1000 should be exempt from levy and a forced sale, for debts contracted •.after a given period, by any householder having a family. Among the exceptions to this right mentioned in the statute, is that of a release or waiver by the parties interested, and in regard to this exception the law provides, that “no release or waiver of such exemption shall be valid unless the same shall be in writing, subscribed by such householder and acknowledged in the same manner as conveyances of real estate are by law required to be acknowledged.”
As in the-case at bar, which we have been discussing, the Illinois debtor and his wife had given a mortgage upon their homestead in the usual form' and describing the property truly by its legal subdivisions, or metes and bounds. They pleaded, by way of defense, the homestead exemption. Upon the question whether the mortgage was a waiver, the court held the following language: “ We think a formal release or waiver of the statute must be executed. It must appear feat the privileges and advantages of the act were irt
It only remains for me to say that, in my opinion, the mortgage executed by the defendants in this case, constitutes no incumbrance upon their homestead, and that their homestead can not be legally subjected to a judicial sale under it; and the judgment below should be reversed.
Concurrence Opinion
It would have been equally, if not more satisfactory to me to have based the affirmance of this case upon the last exception contained in the first clause of section 1249 of the Code. As the foregoing opinion, however, places it upon another ground, I content myself with stating, that without being committed to all of the reasoning used, I concur in the conclusion.