Chase v. Abbott, 20 Iowa 154

Chase v. Abbott

20 Iowa 154 | Iowa | 1866

Cole, J.

i. jtoBTGAnotffew The absolute deed and the bond for reconveyance, together, constituted a mortgage. If it be conceded that at the time they were executed, the plaintiff was the head of the family, and occupying the premises as a homestead, such facts would not affect *158the validity of the conveyance or mortgage. Rev., § 2279. Nor was the lien of the mortgage defeated or impaired by the partial payment and the taking up of the original note and executing a new note for the amount remaining due or unpaid. The mortgage lien remains while the debt is unsatisfied, and a change, of the note or instrument, evidencing the debt, does not affect it. The State of Iowa v. Lake et al., 17 Iowa, 215, and authorities there cited.

H0ME rilMoftie wiie' Under our statute (Rev., § 2217), in the absence of stipulations to the contrary, the mortgagor of real estate retains the legal title and right of possession. Whether this provision is to be limited to mortgages in form, or extends to equitable mortgages also, it is not necessary to determine in this case; since, whatever may have been the interest or the extent of the ownership of Chase in the real estate at the time of his marriage, the rights of the wife in that interest became vested by the marriage. This right of the wife in the homestead is of a higher character, and more in the nature of a vested interest or title, than is a dower right in the other real estate of her husband. It is of such a vested character as clothes her with a right to redeem from a tax sale (under a saving clause in favor of married women) after the time for redemption by the husband has expired. See Adams v. Beale and Wife, 19 Iowa, 61.

3. mobtaAa5¿íar‘ It is a universal rule that the interest of any person in mortgaged property, although acquired subsequent to the mortgage (unless the mortgage contains a power of sale), can only, be divested or barred, by making such person a party to the foreclosure proceedings. There was no foreclosure of this mortgage made by the plaintiff to the defendant, nor was the wife a party to the suit upon the note, and hence her right or equity, whatever it is, has not been barred or foreclosed. Since, therefore, the wife, together with her husband, the judgment *159debtor, is in possession of the premises as a homestead, she claiming in her own right, though derived through the husband, cannot legally be turned out of possession by virtue of an execution against him alone.

4. homemarriaige. But while she may not thus be turned out of possession, it by no means follows that her rights are paramount to the mortgage lien of the defendant. On the contrary, his mortgage being executed by the (now) husband, prior to his marriage and while he had full right and authority to mortgage the property, is a valid lien and, without some other special defense, must be paramount to the rights of the wife acquired by the subsequent marriage. While the mortgagee may, therefore, have the. right to subject the property, by proper foreclosure proceedings,'to the payment of this debt, he has not the right to the absolute possession of the property as against the wife, without making her a party to such proceedings.

_ as a party, This action is brought by the husband alone, and although the rights of the wife have been set up in .the pleadings, and proven by the testimony, she is, notwithstanding, no party to the suit. The question as to the necessity of making the wife a party to a suit involving the homestead right, under our present homestead law; has not been directly determined by this court. In Helfenstein and Gore v. Cave, 8 Iowa, 287, which arose under the homestead act, approved January 15, 1849 {vide Laws of regular session of 2d Gen’l Assembly, ch. 124, p. 152), it was held that the wife was not a proper party; but the court, per Woodward, J., expressly say that they “are not inclined to settle the question definitely as to her becoming a party under ” circumstances where it would be necessary in order to protect her rights. In Sloan v. Coolbaugh, 10 Iowa, 31, the court held, in a brief opinion also by Woodward, J., that under the facts in the case the wife was not so necessary■ a party *160as to justify the District Court in sustaining a demurrer to the petition, because of the failure to join her as a party plaintiff.

The question is, then, to a certain extent at least, an open one in this State and under our present statute, and so regarding it, we proceed to state briefly our views of the correct practice. The right of the wife in the homestead, being, as before stated, a vested right, she cannot be fully and completely barred or divested of that right by judicial proceedings, except upon making her a party thereto. Belknap v. Cook et al., 16 Iowa, 149. It would, therefore, be the safer practice, in all controversies affecting the homestead, to make her a party, and generally she should be a party. Where the husband seeks to enjoin a sale of the homestead or other like proceedings, because it is a homestead, and therefore exempt to him in his own right, we would not now say that the wife was a necessary party. Larson v. Reynolds & Packard, 13 Iowa, 579. And yet, if he should fail in his action, and judgment pass against him, it is reasonably clear that such judgment would not conclude the wife. The absolute safety of the defendant in such case, and the conclusiveness of the judgment as against the wife, could only be effectuated by causing her to be made a party, which he would doubtless have a right .to do.

It was held, in Sargent v. Wilson, 5 Cal., 504, that the wife was a necessary party to a foreclosure proceeding, and that it was error not to allow her to intervene and assert her claim to the premises as a homestead. And in Revalk v. Kraemer, 8 Cal., 66, it was held, that in a case affecting the homestead title to which he alone was a party, and a judgment was rendered against him, that even he was not concluded by the judgment, and might join the wife in a bill to restrain the execution of the decree or judgment. This decision was placed upon' the ground, that since the *161husband could not alone voluntarily do anything whereby he would be divested of the title, he could not be required by judgment of a court to do what he could not do voluntarily. And in Marsh v. Marsh, 9 Cal., 90, where the husband, being alone sued, set up a homestead right, the court held, that the wife should be brought in as a party. See also, Tadlock v. Eccles, 20 Texas, 782; Wisner v. Farnham, 2 Mich., 472.

While it is true that the defendant has not the right in equity to dispossess the wife of the plaintiff of the homestead and take absolute possession thereof himself, he has, nevertheless, an equity paramount to hers, to the extent of his mortgage lien. But the effect of the judgment of the District Court in this case is to defeat that equity of the defendant; for, by his judgment, execution, levy and sale, lie has satisfied his claim; and if he cannot obtain possession of the property purchased in satisfaction of his claim, he will derive no advantage therefrom. It is the province of a court of equity to do full and complete justice, and to that end the judgment of the District Court is affirmed, but with leave to the defendant to institute and prosecute his foreclosure proceedings against the mortgagor, the plaintiff and his wife, the same as if no judgment had ever been recovered, or sale made, and without prejudice therefrom.

Affirmed.