37 Kan. 496 | Kan. | 1887
Opinion by
This is a peculiar case, and, in view of all the facts and circumstances proven at the trial and found by the court below, the relieving hand of a court of equity ought to be extended to the plaintiff in error, if the court has power to manipulate it. Whether it has or not, is the question.
The defendant in error, Hiram V. Simmons, was indebted to the plaintiff in error in a large sum of money. This indebtedness was evidenced by five promissory notes signed by Hiram V. Simmons alone. To secure their payment, a mortgage was executed on land occupied by Simmons, his wife and children, as a homestead. The mortgage was signed by Emeline Simmons, the wife of Hiram V. Simmons, as well as by the husband. The title to the homestead was in Hiram V. Simmons; the land is situated in Chase county; and the plaintiff in error is a resident of Jefferson county. In October, 1878, at a time when two or more of the notes were due and unpaid, Hiram y. Simmons and the plaintiff in error met inyalley Falls, in Jefferson county, and made an agreement that Hiram y. Simmons was to borrow the sum of fifteen hundred dollars from the Kansas Loan and Trust Company, or from other persons, and pay the same to the plaintiff in error on amount due on said notes. In order to enable Hiram y. Simmons to make the loan, it was agreed by the plaintiff in error that he would release and discharge the mortgage held by him, so that the sum of fifteen hundred dollars should be and constitute a first lien on the land, and that the plaintiff in error would pay all the expense accruing by said loan; that the said Hiram y. Simmons was then to execute a note for the remainder due the plaintiff in error, and secure the
The question then is: Can she be bound by a contract respecting her homestead right, to which she is not a party, and to which she has never given her consent ? There is no necessity for assigning reasons to justify a negative answer to the question; it is too plain for argument. But it is said that she has taken advantage of the agreement, and acted upon it, so far as it resulted to her own benefit, and that in consequence of this participation in its benefits, equity requires that she should assume its liabilities and reciprocal obligations. There would be much more force and greater equity in the assertion, if the record showed that before she joined in the execution of the mortgage to the Kansas Loan and Trust Company, she had been made acquainted with all the terms and conditions of the agreement made between her husband and the plaintiff in error at Valley Falls; and the appeal would be still stronger if the plaintiff in error had exercised the most ordinary prudence respecting this trans
It is said that the plaintiff in error is entitled to the interposition of the equitable power of the court, because of mistake, surprise, accident or fraud in the contract with Simmons at Valley Falls, and that the discharge and release of his mortgage ought to be canceled for that reason. Counsel for plaintiff in error in his brief says: “ It may be difficult in this case to determine with absolute certainty under which of these precise heads the plaintiff is entitled to relief;” and at the bar he contended that “the circumstances of the case bordered on all of them.” The difficulty with us is to make an application of the principles by which a court of equity grants relief on the ground of fraud, accident, mistake, or surprise, to a party to a contract, to one who was not a party, or had no knowledge of such contract. If we are to enter into an Inquiry of that kind, it is well to define its limits in the beginning. This is the precise question: When three persons have ■an interest in the subject-matter of a contract, and two of these interested, without the presence or knowledge of the
To authorize this court to exercise its equitable power to afford relief, and to declare a rescission of this contract, so far as the discharge and release of the mortgage of the plaintiff in error is concerned, it must appear that there was some misleading act of the defendant that induced the plaintiff in error to execute the release. In this case Hiramy. Simmons agreed to execute a second mortgage on the homestead, to secure the amount due on the notes held by the plaintiff in error. They both knew the wife’s consent was necessary to the validity of such a mortgage, because that is the law, and they are conclusively presumed to know the law; and they are presumed to contract with reference to the law, and the law is a part of their contract. Even if Simmons knew the law, and the plaintiff in error did not, and Simmons was aware of the ignorance of the plaintiff in error in this respect, it would not be sufifi
The plaintiff in error has enforced his right in this case by judgment against Hiram V. Simmons, for the full amount due him, and this furnishes a complete answer to the first cause for equitable interference in the case. We know it is alleged in the petition, and is among the findings of the court, that Simmons is insolvent; but all a court of law has to do to prevent equitable interference in this class of cases, is to furnish a remedy. Its obligation does not go to the extent of a collection of the judgment. The plaintiff in error is not without
“ In matters of positive contract, it is no ground for interference of equity, that the party has been prevented by accident from deriving the full benefit of the contract on his side; and the reason is, that he might have provided for such contingencies by his contract, if he had so chosen.” (Story’s Eq. Jur., 13th ed., p. 104, and authorities cited in foot-note.)
3. Creation on homestea
The strong arm of the law, and the relieving hand of equity, are both powerless to take from the wife the hearthstone and the shade-trees of the homestead, except by her free and voluntary consent as prescribed in the fundamental law of the state of Kansas. We are not without authority to sustain this view; and while it is doubtful whether in any other state there is a constitutional provision as mandatory in its terms, and peremptory in its requirements respecting alienation of, or the
“It seems scarcely to admit a doubt, that after a mortgage upon the homestead given in the ordinary form and signed by the wife, had been paid, it would be incompetent for the husband alone, by verbal agreement or otherwise, to revive the mortgage, and attach its security to other debts. To hold otherwise would defeat the clear intent of the statute. For whenever the signature of the wife could be obtained to a mortgage upon the homestead, the prohibition would be substantially destroyed, as the husband could keep that mortgage in existence as security for new debts to an indefinite amount. It seems clear that this cannot be done.”
In Campbell v. Babcock, 27 Wis. 512, Lyon, J., commenting on Spencer v. Fredendall, says:
“It was held in that case, that the husband could not without the concurrence of the wife, by any act of his, give vitality to a mortgage on the homestead, that had once been paid. In other words, the court held that the act of the husband alone could not reinstate and give life to such mortgage after it had become fimctus oflieio.”
In this case, by agreement between Simmons and the plaintiff in.error, the mortgage of the plaintiff was discharged of record. The consideration of the discharge was partly paid, and the conditions upon which it was discharged were partly performed by Simmons. All this, too, was done without the knowledge or consent of his wife. This mortgage being discharged of record, and partly paid, and all this done in accordance with the exactions and conditions of a contract made by the mortgagee, to—
“ Hold that her husband, without her consent or knowledge, could transform an inoperative document into a valid and binding mortgage, seems to be a gross perversion of the law which was made for her protection. The restriction that the iaw imposes upon the alienation of the homestead by the hus*507 band, is a most valuable right to the wife, and is doubtless founded in wise consideration of public policy. But that restriction would be practically removed and defeated, were we to hold that Mrs. Babcock is estopped by the act of her husband from availing herself of the defense that the mortgage is void. We find no authority for pushing the doctrine of estoppel in pais to that extent.” (Campbell v. Babcock, supra.)
The case of Barber v. Babel, 36 Cal. 11, is a very instructive one. The material facts are: Frederick Babel and his wife Sophia, on the 17th of March, 1860, executed a mortgage to plaintiff Julia A. Barber; on the 22d of April, 1861, they filed a declaration to hold the land mortgaged as a homestead, this declaration being required under the California statute. On the 27th of February, 1865, Frederick Babel, alone, executed another note for the amount due the plaintiff, and a second mortgage to secure it on the land, which was accepted in place of the first, it being surrendered, and a discharge and release of it entered of record. To accomplish this, Frederick Babel made false and fraudulent representations to Julia A. Barber, stating to her that said land was not claimed as a homestead. Before taking the second note the plaintiff applied to the wife, Mrs. Babel, to execute a further mortgage, which she refused to do. The note not having been paid, this action was commenced, a statement of the whole facts made, and a foreclosure asked for. The defense relied upon the statutes of limitation, upon the discharge of the first mortgage, and that the second was void without the signature of the wife. Chief Justice Sawyer delivered the opinion of the court, and said:
“The last mortgage was not executed by the wife, and was therefore void. . . . It is claimed, however, that the giving of the new note by the husband in the place of the old, and for the same indebtedness, was an extension of the time of payment of the old indebtedness, and that this extension continued the old mortgage in life; and such must have been the opinion of the district court. This raises the question, as to the power of the husband to affect the rights of the wife in the homestead, in any manner, by his acts alone. The land is impressed with the character of a homestead by executing, acknowledging and recording, in the same manner as convey*508 anees affecting real estate are required to be acknowledged and recorded, a declaration of intention to claim the same as a homestead. . . . Under its provisions, we are of opinion that there is a joint estate or interest in the homestead vested in the husband and wife, . . . and that this interest can no more be affected without her concurrence in the mode prescribed, than the ordinary estates in the lands of others without the concurrence of the parties holding them. The cases of Lord v. Morris, 18 Cal. 482; Lent v. Morrill, 25 id. 499; Lent v. Shear, 26 id. 370; Low v. Allen, 26 id. 141, and other cases to the same effect, establish the principle that after a conveyance of the mortgaged premises, or the transfer of any interest therein, the mortgagor has no power to create, revive, renew, or prolong a charge upon the premises, or interest therein, so conveyed or transferred, while such interest remains in another party. . . . The principles established by these cases directly apply to the case under consideration. The original note and mortgage were valid, but subsequent to the making of this mortgage the defendants duly recorded their declaration of homestead, and thereby became jointly vested with new and important rights, which were inalienable, except in the mode prescribed by the statute. The wife acquired a new, distinct, personal interest, which she did not before have, and which she could not afterward be deprived of by any act of the husband. . . . The mortgage subsequently executed by the husband was not executed by the wife, and was, therefore, if the statute means what it says, invalid and ineffectual for any purpose whatever. The giving of the new note, and extending the time of payment, were also the act of the husband alone, to which the wife was no party. Under the authorities cited, he could no more, indirectly, in this mode, effect the same purpose, by continuing the old lien beyond the time when the action would be barred as to the wife, than in the direct mode attempted of executing a new mortgage and discharging the old. If the lien was continued, it was by virtue of a new-contract affecting this land. To continue the old mortgage in force after it had been barred, and sell under a decree of the-court foreclosing it, would be to effect an alienation through the aid of the court, and a new contract, as clearly and effectually as though the same result should be accomplished by making and foreclosing the new mortgage. The fraudulent representations of the husband cannot affect the question as to the statute of limitations, for the wife was no party to the fraud. She made no*509 representations upon the subject; she expressly refused to execute the new mortgage, and thereby put the mortgagees on their guard. They must have supposed it important to obtain her signature, or they would not have sought it. The declaration of homestead was a matter of public record, and notice to all the world. The mortgagees had the means of knowledge, and as to the wife, at least, they were bound to take notice of the homestead estate. The fraudulent represéntations were the act of the husband alone, and he was no more authorized to prolong the statute of limitations, thereby creating a new right, and to destroy the homestead right in this way, than in any other. He had no power, alone, to affect it in any manner. ... If the mortgagee lost anything by trusting to the false representations of the husband, when the records afforded notice of the true state of the case, the wife is not in fault, and the plaintiff is, unfortunately for the credit of human nature and her own interests, not the first in the business world to find herself a ‘ victim of misplaced confidence.5 55
The case of Snell v. Palmer, 12 Bradw. 337, that of Anderson v. Culbert, 55 Iowa, 233, and that of Tolman v. Leathers, 1 McCr. 329, all bear strongly on the proposition that, however strong the equity, the court is powerless to do it. The logic of all these cases is, that no act of the husband alone can create, extend, postpone, or renew a lien upon a "homestead, without the written consent of the wife in the exact manner prescribed. This case was tried by the court below, a jury being waived; in the original and amended petitions, in the findings of fact, in the entire record, there is no specific allegation or finding that the release and satisfaction of the mortgage was procured by fraud, or occasioned by mistake, accident, or surprise.
We recommend the affirmance of the judgment of the district court.
By the Court: It is so ordered.