13 Iowa 579 | Iowa | 1862
Various grounds are set out in the bill for setting aside the decree of foreclosure, the sheriff’s sale, the deed from Packard to Reynolds, and protecting complainant in his homestead, and title to all the land sold by the sheriff, but it is manifest, and substantially admitted in the argument, that in the court below the decision turned upon a construction of the homestead statute, as applied to the actual facts and circumstances of the case. And this might well be so, for, as against Reynolds, neither defects in the petition for foreclosure, variance between the notice and petition, the supposed blending therein of law and equity jurisdiction, the fact that the decree was drawn up by petitioner’s attorney, that it was not signed by the judge, that the sheriff’s deed to Packard was insufficient in its recitals, that the premises were sold for $362, when worth from $1,200 to $2,000, nor all of them combined, would be sufficient to defeat his title. The cardinal question is, (and it is to reach this point, that the petition is, for the most part, drawn,) whether the sale of the homestead is void, or whether, under the circumstances disclosed, Reynolds acquired any title thereto, as against the mortgagor.
The statute expressly enacts that a conveyance of the homestead is of no validity, unless the husband and wife concur in, and sign the same. (Code, 124-7, Revision 2279.) And that a conveyance by mortgage signed by the husband alone, under such a statute, is invalid. See the following cases: Alley v. Bay, 9 Iowa, 509; Yost v. Devault, Id., 60; Williams v. Swetland, 10 Id., 51; Dorsey v. McFarland,, 7 Cal., 342; Richards v. Chase, 2 Gray, 1; Williams v. Starr, 5 Wis., 534.
But these questions remain. What effect does the subsequent death of the wife have ? How far is complainant concluded by the foreclosure proceedings ? Does his subsequent marriage before the foreclosure affect the question ?
And so, again, if complainant had not been married at the time of the foreclosure, he could not now raise the question. • For, if unmarried, he was the only person who could defend, or insist upon the homestead right. And though the mortgage was invalid for want of the wife’s signature, yet he might or not insist upon such invalidity. It is as if he had been sued upon a note declared void by statute, or one that he had fully paid, or one obtained by fraud, and had failed after personal service, to make his defense. In such a case, the judgment concludes him of course, and we see no reason why the same rule does not apply in the present instance.
The mortgage being invalid at the time of its execution the subsequent death of the wife would not change its character. If her right therein had been a mere dower interest, the deed without her signature would have been good to the extent of his right, and her death would have put an end to any claim of dower. But the right of the wife to the homestead differs from that of dower, and the provisions of the statute as to its conveyance or incumbrance
The mortgage was invalid then, when made. If complainant had not been married at the time of the foreclosure, or if the present wife had been made a defendant in that action, the homestead exemption could not now be set up. It then remains to inquire what effect shall his subsequent marriage and the nonjoinder of the wife have upon respondent’s title.
The necessity of making the wife a party, or allowing her to intervene in an action affecting the homestead, is not very clearly settled by the authorities. In California and Texas, (in which states, by the way, more important questions touching the homestead right have been settled than in any others,) it is held that husband and wife should be joined; that if, on foreclosure, she is not joined, her rights are not affected, and that it is error to refuse to allow her to intervene. (Sargent v. Wilson, 5 Cal., 504; Tadlock v. Eccles, 20 Tex., 782; Revalk v. Kraemer, 8 Cal., 66; Cook v. Klink, Id., 347. And see Wesnier v. Farnham, 2 Mich., 472.) The cases in 8 Cal., hold that if the husband alone is made a party and defends, his rights are not concluded by the decree, and he may, notwithstanding, join with his wife in a bill to restrain the carrying of the decree into effect.
In our own state, the question has undergone some discussion. Sloan v. Coolbaugh, 10 Iowa, 31, was a bill in equity by the husband to restrain a sale under a mortgage with power of sale, (the mortgage being signed by the husband and wife,) and it was there held that the wife was not a necessary party. In Helfenstein & Gore v. Cave, 3 Iowa, 287; the plaintiffs brought ejectment, and the husband set up the homestead claim. During the progress of the
“ We are not inclined,” he continues, “to settle the question definitely, as to her becoming a party under the above circumstances, since the cause does not demand it; but it seems apparent, that without assuming some such positions as those above indicated, there is no call or occasion for letting her in. Of what benefit would it be ? What would she gain, or what can she do ? What is her position, as she asks admission now? The husband appears and defends, and she does not pretend the contrary. She does*586 not claim that he has refused or neglected to do some necessary act, which she has supplied. She simply sets up a right to the homestead, as the wife of the defendant, and as the mother of a family, without reference to what her husband has done or omitted to do. This claim of right we cannot recognize, and, therefore,' it is our opinion that the court erred in permitting her to come in as a party defendant.”
Following what we believe to be the spirit of ourstatutej and especially after the construction given to it by these cases, we are inclined to the opinion and so hold, that the wife is not a necessary party to every action which may affect the homestead. If she is a party to the mortgage foreclosed, then of course, if not a party to the foreclosure, she would not be concluded by anything done. In that case, however, it would by no means follow that the husband, if a party, would not be estopped, though the wife might not be. The cases in California (8th, 66, 847,) go much beyond what we regard the correct rule under our statute, in holding that if the husband alone is made a party, and defends, his rights are not concluded. He might, it is true, join with the wife in a bill to restrain proceedings under such a decree, but this, as it seems to us, upon the ground of protecting her rights, and not because there was any right of his left for adjudication. In other words, as he could, if sued alone, set up the exemption, he could not, after decree upon that question, still insist, for himself, upon the same claim.
But assuming that she is not a necessary party, and that there has been a foreclosure of a mortgage which she did not sign, does it follow that the decree to which she is not a party estops either or both of them from claiming the exemption. Or take the very facts of this case. When the complainant married, in 1857, there was no valid incumbrance upon his homestead. His present wife, therefore,
Under the testimony, it is impossible to ascertain how much was bid for the homestead, and how much for the other mortgaged property. The sale should, therefore, be set aside, and a new one ordered, so much of the decree, however, as sets aside the entire order of foreclosure is reversed. It is good, as against the husband, as to the amount found to be due, and also, so far as it forecloses his interest in the mortgaged premises. The cause will be reversed and remanded, with instructions to proceed in a manner not inconsistent with this opinion.
Reversed.