5 Nev. 233 | Nev. | 1869
By the Court,
On the twenty-fourth of April, 1865, Hopper, the respondent
After maturity of the note and its nonpayment, Hopper brought suit against the maker thereof to recover judgment upon the note, and for a decree of foreclosure against the mortgaged property. Thereupon, the wife, Ellen Mary Parkinson, appeared, and of her own motion was made codefendant in the action. The joint answer of these defendants admits all of the issuable averments contained in the complaint: but by way of defense to the foreclosure proceeding, they set up in themselves a homestead right to the mortgaged premises, and ask that it may be adjudged good as against said mortgage. The answer alleges the marital relations of the parties defending, such as to entitle them to claim the benefit of our homestead laws: “ That from, on, and since the twenty-fourth of April, 1865, they, with their family of children, have continuously resided and lived upon said premises, and have since said time occupied said premises as a homestead; and that they do now claim, hold, and occupy the same as a homestead, and that on the ninth of March, 1869, Ellen Mary Parkinson, one of said defendants, made and filed in the proper office, in due conformity with law, a statement declaring her intention to hold and claim said premises as a •homestead.” The value of the property, it is conceded, does not exceed five thousand dollars.
By consent the issues of fact were tried by the Court, without a jury, and thereupon the findings were in accordance with the allegations of the complaint, fully covering the averments therein stated, “ that the note and mortgage were executed simultaneously, and to secure the payment of the purchase money of the aforesaid premises.” The Court furthermore found, in respect to the new matter alleged
The argument in support of the appeal presents the following points: “ First, the property sought to-be subjected to the payment of this debt is a homestead; second, a mortgage of a homestead not exceeding five thousand dollars in value, executed by the husband alone, is absolutely void ; third, a vendor’s lien does not exist where mortgage security is taken for the purchase money.”
In respect to a vendor’s lien — taking up the several propositions in the most convenient order — it is sufficient to reply, that the question is not involved in this case. The action is not for the enforcement of á “a vendor’s lien,” in the distinctive sense that term is used, but the proceeding is simply in the form authorized by the statute where a debt has been secured by mortgage on real property.’ The pleadings, judgment, and decree, properly so treat it. So the argument and authorities directed to this point have no bearing upon the case in hand.
The other two points, and the argument of counsel in support of them, are founded mainly on the theory that the findings of fact (for beyond such finding, in respect to matters of fact, we cannot look, seeing that in no way has the evidence been brought up)> show, that at the time said mortgage was executed — the twenty-fourth of April, 1865 — the appellants had acquired a homestead right to the property in question. To this it is replied by opposing counsel, that, at best, defendants are only shown to have a homestead. therein commencing on the twenty-fifth of April, 1865, as the language used in the finding “from and since the twenty-fourth,” excludes the twenty-fourth, and is equivalent to fixing
The exemption claimed by defendants in this case must be tested by the constitutional and statutory provisions pertaining to homesteads.
Section thirty, article four of the Constitution, .provides that “ a homestead, as provided by law, shall be exempt from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon.” * * *
The Act approved March 6th, 1865, (Stats. 1864-5, 225, Sec. 1) declares that “ a homestead consisting of a quantity of land, together with the dwelling house thereon and its appurtenances, not exceeding in value the sum of five thousand dollars, to be selected by the husband and wife, or either of them, or other head of a family, shall not be subjected 'to forced sale on execution, or any final process from any Court.” * * *
Section two (Stats. 1864-5, 226) provides that “ a mortgage or alienation to secure the purchase money, or pay the purchase money, shall be valid if the signature of the wife be obtained to the same.” * * *
Defendants’ counsel, proceeding upon the theory that immediately upon the execution of the deed a homestead right vested in defendants, insists that any mortgage is void as against such right, unless the wife joins in its execution, in pursuance of section two of the Act above quoted. . Rut the difficulty lies here. The premises are wrong. There can be no such thing as a homestead right as against the purchase money, unless the lien, whether created by mortgage or existing by way of a vendor’s lien, has been relieved in some lawful way.
“ And, even if executed subsequently to the declaration of homestead,” as aptly expressed by Justice Rhodes in the case last cited, “ it would be held by any Court in which it might be foreclosed, upon the plainest principles of equity, to have priority over the homestead claim, unless the Court was prepared to hold that the Act was a legislative device to enable purchasers to swindle vendors.” The circumstances, as well as the constitutional and statutory provisions reviewed in the case last referred to, are somewhat different from the one at bar; but, nevertheless, the governing principles are the same, and fully warrants a like conclusion.
It follows, therefore, from the views herein expressed, that the decree must be affirmed.
It is so ordered.