47 So. 113 | Miss. | 1907
Lead Opinion
delivered the opinion of the court.
The general doctrine that a valid mortgage may be executed to pass after-acquired property is too well settled to require citation of authorities. The precise question presented for decision on this record is simply this: Can husband and wife execute a mortgage on an after-acquired homestead, which shall be good to bind that after-acquired homestead when it comes into existence ? Some things are perfectly clear:
First. ■ A man may execute a mortgage, good at law or in equity, on what he now actually owns.
Second. A man may execute a mortgage, good at law or in equity, on what he does not now own actually, but what he potentially owns, as a crop to be grown in fifteen months. Everman
Third. It is equally elementary that a man may execute a mortgage, not valid at law, but valid in equity, on property that he does not then own, either actually or potentially, but which he may afterwards acquire. In all such cases the principle is that such an instrument is treated as a contract to convey the after-acquired property, when the acquisition takes place in the future. Nothing can possibly be added to the clearness and force with which this whole subject is treated in 2 White & Tudor’s Leading Cases in Equity, pt. 2, p. 1605 et seq. A mere expectancy or possibility or hope of something to come, as the hope that the grantor may acquire property by devise from one still living and who has not made his will, are good in equity within this principle, though utterly void at law. In Wilson’s Estate, 2 White & Tudor’s L. C., pt. 2, p. 325, a conveyance by a woman, in contemplation of marriage, of all the estate which she then had, or should thereafter acquire for her separate use during life, and after her death to her children, was held to confer an equitable title to property which was subsequently bequeathed to her by an uncle. The great Chief Justice Gibson of Pennsylvania delivered the opinion in that case, and in the course of it said: “ Indeed, it is no more than the familiar principle that he who executes a conveyance on valuable consideration, purporting to pass a title before it is in him, will be bound to make it good whenever he acquires it.” The principle is stated in many ways, and is illustrated by an overwhelming array of authorities, from which we select one or two. In the note referred to, at page 1606, supra, it is said: “ It has notwithstanding been held that such possibilities, and even the expectancy of one who has no present claim of any kind, may be
Perhaps the clearest and best statement anywhere to be found is that of the Lord Chancellor in the House of Lords, in Holroyd v. Marshall, 10 House of Lords, 191, which'is given in full because of its great clearness; “ It is quite true that a deed which professes to convey property which is not in existence at the time is a conveyance void at law, simply because there is nothing to convey. So in equity a contract which engages to transfer property which is not in existence cannot operate as an immediate alienation merely because there is nothing to transfer. But if a vendor or mortgagor agrees to sell or mortgage property, real or personal, of which he is not possessed at the time, and he receives the consideration for the contract, and afterwards becomes possessed of property answering the description in the contract, there is no doubt that a court of equity would compel him to perform the contract, and that the contract would, in equity, transfer the beneficial interest to the mortgagee or purchaser immediately on the property being'acquired. This, of course, assumes that the supposed contract is one of that class of which a court of equity would decree the specific performance. If it be so, then immediately on the acquisition of the property described the vendor or mortgagor would hold it in trust for the purchaser or mortgagee, according to the terms of the contract;
The doctrine is also stated with very marked clearness by Mr. Pomeroy in his work on Equity Jurisprudence (Student’s Ed.), § 1236, and also sections 1285-1291. In section 1288 Mr. Pomeroy says: “ In other words, the doctrine of equitable assignment of property to be acquired in future is much broader than the jurisdiction to compel the specific performance of contracts. In truth, although a sale or mortgage of property to be acquired in future does not operate as an immediate alienation at law, it operates as an equitable assignment of the present possibility, which changes into an assignment of the equitable ownership as soon as the property is acquired by the vendor or mortgagor; and because this ownership thus transferred to the assignee is equitable, and not legal, the jurisdiction by which the right of the assignee is enforced, and is turned into a legal property, accompanied by the possession, must be exclusively equitable, a court of law has no jurisdiction to enforce a right which is purely equitable. This, in my opinion, is the only correct and sufficient rationale of one of the most distinctively equitable doctrines in the whole scope of equity jurisprudence.” These citations are abundantly sufficient to correctly and clearly and accurately state the true principle upon which the doctrine rests in equity that a mortgage of after-acquired property, or of any expectancy' or possibility, is good in equity to pass that future interest, whenever it shall be acquired, by virtue of the mortgage as between the parties. It will, of course, be understood that we are not speaking here of a ease in which the rights of any creditors or any third parties whatsoever are involved. The question is one arising simply between the original parties to the instruments.
All three of the propositions which we have thus far stated are elementary. There is no room for any controversy as to the
Counsel for appellee give as their reason for denying the power of husband and wife to do this, as between the original parties, that public policy is somehow or other infringed. There is no public policy as to homesteads, except that which the statute has declared; and that public policy, so far as contracts are concerned, like a mortgage upon a homestead, is confined exclusively to providing that such instruments shall not be valid unless joined in by the wife in the manner marked out by the law. This mortgage, in this case, was properly executed by husband and wife for a valuable consideration in the manner provided by law, and, that done, there is no element of public policy with regard to homesteads in this case that can be said to have been infringed. It was perfectly competent for the husband and wife to execute the mortgage, or not to execute it. They had perfect liberty and freedom to so contract or not — ■ to execute the mortgage or not. There is nothing on earth in it, except whether they did desire to make that sort of contract, and did make it, and did make it in the manner marked out by the law. Whenever it is conceded, as, of course, it must be, that husband and wife may execute a valid mortgage in prcesenti on a homestead which they now own, it must follow inexorably that they may also execute a mortgage on a homestead which they may thereafter acquire. Public policy as to homesteads is no more infringed by a mortgage on a homestead to be acquired than it is by a mortgage on a homestead then owned at the time of the execution of the mortgage. There is nothing
It is not a question of the kind of property which may be bound under an after-acquired clause in a mortgage. No such distinction as that will stand the test of logic. It is a question, merely and simply, of whether a mortgage of any property to be acquired in the future is good in equity between the parties.
Finally, it is palpable that counsel have fallen into a manifest error with respect to public policy affecting homesteads by misapplying the doctrine of Trotter v. Dobbs, 38 Miss., 198,
The claim of Charles Varnado for $150 and interest, purchase money of the land, is, of course good on the facts of this case against the mortgage. The result is that the decree of the court below on direct appeal is reversed in so far only as it denied the liability under the mortgage of the after-acquired homestead. Such homestead will, as. we hold, pass under said mortgage, subject to the claim of $150 just specified.
On the cross-appeal the decree is also reversed. -It is for the Louisiana courts to adjudicate as to lieu and sale of lands in Louisiana. In all other respects the decree is affirmed.
Dissenting Opinion
delivered the following dissenting opinion.
I cannot agree with the court in its announcement of the law in this case. The only point of difference is upon the question
The only validity which attaches to this kind of conveyance is derived from the equity courts. But, in order to enforce future-acquired property contracts in mortgages, equity will not act in eases where it destroys the public policy of the state. The equity of the public in the preservation of so necessary a policy of the state as that of the right -of a citizen to acquire the exemption allowed by law is stronger and higher than can possibly be in the equity of a creditor to contract away the right from the debtor. When certain formalities have been complied with, the homestead may be sold or incumbered. While the exempt property may be sold or incumbered, and its natural increase mortgaged, when it is actually owned, we have found no authority which holds that the debtor may preclude himself by any sort of an executory contract from the right to acquire a homestead. Such an executory contract is void, both in law and in equity. In section 354, vol. 1, Page on Contracts, it is held that “ a covenant in a contract whereby the promisor agrees in advance to waive his right of exemption in his property is void in most jurisdictions, on the theory that the statute is enacted for the protection of necessitous debtors, and to allow them to
The reason of the law applies with just as much force to the waiver of the prospective right to acquire a homestead by virtue of the future-acquired property clause in a deed in trust as it does to the waiver of exemption by the debtor from execution. In truth, there is more reason to apply this rule to the future-acquired clause contained in trust deeds, for the reason that, if it is ripheld, it is not only a waiver of exemption, but it is a waiver before the debtor ever acquired the property on which the waiver is to operate. The limitations on the rule as to the upholding of contracts in reference to future-acquired property should not be relaxed, but should be more rigid. No rule of law could be announced which would be more inimical to the policy of the exemption laws, and open wider the door to oppression, than to hold that a party taking a mortgage could in
I rest my view of this case on the broad ground that a clause-of this sort in a deed in trust cannot operate to defeat the acquisition of future exemptions, by the mortgagor. If a mortgagor own a homestead or other exempt property actually in existence at the time, he may mortgage that property, though it be exempt, and the increase of that property. He may mortgage his homestead and the crops to be grown on his homestead, because these things have a potential existence; but he may not in his mortgage convey away prospectively his right to acquire a homestead. No creditor ever took a security from his debtor, relying on property to be after acquired as sole security. Eew debts would be made if the creditor had to rely for his security on the future possible acquisitions of a debtor. The creditor relies on more tangible security. This exact case has not been before decided by this court; but all the authorities unanimously hold that a debtor cannot waive his exemption right, and that is what this contract does.
The authorities quoted in the opinion in chief have no application to this case. There was no question of exemption discussed there, or thought of.