77 Mass. 332 | Mass. | 1858
This is a writ of entry to foreclose a mortgage, made by the defendant, of his homestead estate, which was exempted, by St. 1851, c. 340, from sale or levy on execution. And the question is, whether his wife joined in the deed of mortgage, within the meaning of the sixth section of that statute, which declares that “ no conveyance by the husband of any property, exempted as aforesaid, shall be valid in law, unless the wife join in the deed of conveyance.” ■
The court are of opinion that the defendant’s wife did not “join in the deed of conveyance,” within the meaning of the statute above cited. That statute exempted a debtor’s homestead from sale or levy on execution, and provided that the exemption should continue after his death, for the benefit of his widow and family, until his youngest child should be twenty one years of age, and until the death of his widow. The same provision was made in St. 1855, c. 238. And though both these statutes were repealed by St. 1857, c. 298, yet there was a proviso that such repeal should not affect any rights that might have been acquired under those statutes. By St. 1851, c. 340, § 6, which was in force when the mortgage to the plaintiffs was made, and on which this case must be decided, this right of exemption from sale or levy on execution shall not be defeated by the husband’s conveyance of the homestead, unless his wife join in the deed of conveyance. The manifest intent of this section is, that the wife’s right in her husband’s homestead, like her right