Harsh v. Griffin

Oct 14, 1887
Reporters:
,
Before:
Beck
Beck, J.—

I. The facts upon which the interests of the several parties to the suit are based are shown by the pleadings and tbe evidence to be as follows: ‍​​‌‌‌‌​​‌​‌​​‌​‌​‌​​​‌​‌‌‌‌​‌‌‌​​​​​‌‌​​​‌‌​​‌‌‌‍The father of plaintiff’s wards, before bis marriаge with their mother, executed two mortgages upon the property in controversy to *609seсure certain promissory notes made by Mm to defendant. After the marriage he conveyed thе property to the mother of the wards; and subsequently he and she united in the execution of anоther mortgage to defendant on the property to secure another promissory note executed by both of them. An action was brought to foreclose these mortgages. The wards’ mother and certain lienholders were made defendants in the action, who set up as a defеnse that the father, at time of the execution of the notes ‍​​‌‌‌‌​​‌​‌​​‌​‌​‌​​​‌​‌‌‌‌​‌‌‌​​​​​‌‌​​​‌‌​​‌‌‌‍and mortgages, was insane, which was known to defendant. Before the cause was tried, the father died, and his administrator was substituted as а defendant. The property covered by the mortgages was occupied by the father and mother, until his death, as their homestead, and has since been occupied in the same way by the mother with her family. A decree was entered, foreclosing the mortgage, upon which a spеcial execution was issued, and the property was sold thereon to defendant, the mortgagee.

1. moetgage: imnorheirs’ parties?13 remedy* redeception: II. The plaintiff claims that defendant acquired by the foreclosure and sale the interеst held by his wards’ mother in the property, being an undivided one-third thereof, and that, as his wards were not parties to the proceeding, they hold, as heirs, title to the ** undivided two-thirds. In our opinion, the interest of рlaintiff’s wards in the property is nothing more or other than to redeem from the mortgage. It is true they were necessary parties to the foreclosure proceedings, which, for the reason that they ‍​​‌‌‌‌​​‌​‌​​‌​‌​‌​​​‌​‌‌‌‌​‌‌‌​​​​​‌‌​​​‌‌​​‌‌‌‍were not joined therein, did not cut off their right to redeem. The proceeding, because of the non-joiner, was not wholly void, and certainly did not defeat defendant’s rights as a mortgagеe. These rights are such that he holds the property, subject to the liens of the mortgages, from which plaintiff’s wards may redeem, for the reason that their equity of redemption had not been cut оff. Surely, it will not be claimed that a mortgagor, or one standing in his shoes, as an heir, can bring an actiоn against the *610mortgagee to partition the mortgaged land. His only right is to redeem. Even should the forеclosure proceedings be regarded as voidable as to plaintiff’s wards, defendant’s rights ‍​​‌‌‌‌​​‌​‌​​‌​‌​‌​​​‌​‌‌‌‌​‌‌‌​​​​​‌‌​​​‌‌​​‌‌‌‍under thе mortgage are not affected. He still has the right to hold the property until it be redeemed. In support of these familiar doctrines, see Jones, Mortg., § 1395; Porter v. Kilgore, 32 Iowa, 379; Knowles v. Rablin, 20 Id., 101; Anson v. Anson, Id., 55; Veach v. Schaup, 3 Id., 194.

2._: _: inort|agor heirs boímd.’ III. The issues involving the sanity of the father of рlaintiff’s wards was raised by an answer filed in his lifetime, and, after his death and the substitution of his administrator, was detеrmined in favor of defendant. As against his estate, it was an adjudication establishing the validity of the mortgаges as liens upon the property thereof. Plaintiff’s wards ought to be bound by this adjudication; for it determines the liabilities of the estate for the debt, and the validity ‍​​‌‌‌‌​​‌​‌​​‌​‌​‌​​​‌​‌‌‌‌​‌‌‌​​​​​‌‌​​​‌‌​​‌‌‌‍of the mortgages. The adjudication does not affect their right of redemption. But should it be assumed that it does not bind them, they cannot maintain this action.’ The evidence does not tend to show insanity of the mortgagor when the first two mortgages were executed. Whatever may be their right as to the last mortgage, their only rights as to the other two are to redeem. These mortgages, therefore, stand in the way of plaintiff’s claim for thе partition of the property.

3. hove-veyáueeby wiiemvue join. 1Y. Counsel for plaintiffs insist that the deed executed by the father оf plaintiff’s wards to their mother was void, for the reason that the property conveyed was the homestead of the parties, and the wife of the grantor did not join as grantor m the conveyance to herself. The position is this: A deed by a husband to his wife of their homestead is void, unless the wife joins therein, thus executing a deed to herself of her own interest in the property. Code, § 1990, is relied uрon to support this position, It provides that a deed of a homestead is not valid, unless the husbаnd and wife join therein. The case of a deed to *611tbe wife is not within the spirit of this section, which surely cannot intend that the wife should do the vain and absurd thing of executing as grantor a deed to herself as grantee. But, if we assume for the purpose of the case that the deed is void, the rights of defеndant under the last mortgage are alone affected. He holds the other two mortgages аs liens upon the land, which can be removed by plaintiff in no other way than by redemption.

“We havе disposed of all the questions in the case, and reach the conclusion that the petition of plaintiffs ought to be dismissed. Eeversed.