82 Mass. 144 | Mass. | 1860
It is not necessary in the present case to determine whether any homestead right exists in a right to redeem lands mortgaged to an amount exceeding eight hundred dollars, when the wife has joined with her husband in the conveyance to the mortgagee, and released her right of homestead in the premises. The validity of the mortgage which the plaintiff seeks to set aside does not depend on the decision of this question. He contends that the second mortgage on the premises is invalid upon the ground that the wife of the insolvent did not join with her husband in the deed of conveyance, according to the provisions of the St. of 1855, c. 238, § 5; and in support of this position he cites and relies on Richards v. Chace, 2 Gray, 383. But the difficulty in maintaining this proposition arises from the provision in the St. of 1857, c. 298, § 13, by which all titles to real estate in a homestead farm or
The right of the legislature to enact the provision, above cited, confirming titles created by conveyances of a homestead farm or lot, in which the wife did not join, was fully considered in Wildes v. Van Voorhis, 15 Gray, 139, and its validity was there recognized and affirmed.
It follows that the second mortgage is valid, and that the plaintiff is not entitled to redeem the estate, except on payment of the amount due on both mortgages with interest.
Decree accordingly.