Lawver v. Slingerland

11 Minn. 447 | Minn. | 1866

By the Court

Berry, J.

The complaint shows that on the 19th day of June, 1860, William Lawver was the owner in fee simple of lot 6, block 41, in the city of Ned Wing, with the dwelling house thereon, and together with his wife, Eliza Lawyer, and their children, resided thereon, occupying and claiming the same as a homestead; that on the same day, for the purpose of securing a certain note running from him to the appellant, the said "William Lawyer executed and delivered to the appellant a mortgage upon said lot, which mortgage was signed by the said Lawyer and his wife, and duly recorded; that said mortgage is in the usual form, contains the usual covenants, and purports to have been duly acknowledged by the parties thereto, and by the said Eliza separately and apart from her said husband; that it was signed by the said Eliza in the presence of her husband, and of one witness only; that its contents were not explained to her before or at the time of signing; that she did not know at the time of signing what it was; that had she known that it was a mortgage upon the homestead, she would have absolutely refused to sign the same; that her acknowledgment was not taken separate and apart from her husband, but in his presence; that the said Eliza did not know that she had signed her name to a mortgage upon said homestead, until on or about September 1st, 1861; that the apjiellant has commenced to foreclose said mortgage by advertisement. A perpetual injunction is prayed for, and a decree declaring the mortgage null and void. A demurrer having been interposed and overruled, an appeal was taken to this court. In the view which we take of this case, it is only necessary to consider one point made on the hearing. The act for a homestead exemption, passed August 12th, 1858, and found on pages 569, 510, Pub. Stat., after declaring of what a homestead shall consist, and that it “shall not be subject to attachment, levy or sale upon execution, or any otherprocess,” &c., &c., proceeds to -enact that, “ such exemption shall not extend to any mortgage thereon lawfully obtained, but such mortgage or other alienation of such land by the owner 'thereof, if a married man, shall not be valid withont the signature of the wife to the same, unless such mortgage shall be given to secure the payment of thé purchase money or some part thereof.” The owner of real property in fee simple having the right to mortgage the same at his pleasure, by virtue of his absolute ownership, may do so by conforming his conveyance to the ordinary requirements of statute. If there be any exception in the case of a homestead, it must be found in the statute to which the homestead right owes its existence. This, as we have already seen, provides that “ a mortgage * * * of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same, «fee.” The signature alone of the wife is required. The mortgage spoken of is, “a mortgage by the owner, if a married man,” not a mortgage by the owner a/nd his wife. The signature is required in token of her assent to a mortgage by the owner, her husband, not for the purpose of making her a party to the mortgage in the same sense in which her husband is a party. It is objected that to hold that the signature is sufficient without attestation or separate acknowledgment, is to introduce an anomaly into our law relating to the conveyance of real property or interests therein by married women. It was in the power of the Legislature to fortify the homestead by whatever safeguards were deemed necessary. If, in the exercise of legislative discretion it was deemed only necessary to provide that the homestead should not be mortgaged without the signature of the wife, no consideration of public policy can authorize us in putting such construction upon the law as will render the attestation of the signature, or an acknowledgment by the wife indispensable, however imperfect in our opinion may be the protection which any other construction would throw around the homestead. Under the old homestead law, page 363, Sec. 93, Rev. Stat. (1851,) it was provided that “ no release or waiver of such exemption shall be valid, unless the same shall be in writing, subscribed by such householder and Ms wife, if he have one, and acknowledged in the same manner as conveyances of real estate are by law required to be acknowledged.” The difference between this language and that of the statute of 1860, by which a signature only is in terms required to render a mortgage of the homestead valid, is significant, and furnishes no inconsiderable ground from which to infer that the change in the mode of waiving or conveying the homestead right was made ex industria; and it is proper perhaps to add, that following on in the same direction, the Legislature of .1866 have repealed the statutory provision by which a separate acknowledgment was required when a deed was executed by a married woman. No point appears to be made in behalf of the respondents as to the facts alleged in the complaint with regard to the ignorance of Mrs. Lawver respecting the contents of the mortgage. There is no allegation of any attempt to conceal its- contents from her, or to mislead her with regard to the object or purpose of the mortgage, or of any other fraudulent practice upon her. If she signed it in ignorance of its contents, it would seem that she must attribute the consequences to her own neglect and carelessness.

The order overruling the demurrer is reversed.

McMillan, J.

The second section of the “homestead act,” under which it is claimed the mortgage involved in this action is void, is as follows : “ Such exemption shall not extend to any mortgage thereon, lawfully obtained, but such mortgage or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same, unless such mortgage shall be given to secure the payment of the purchase money or some portion thereof.” Comp. Stat. p. 510, Sec. 93.

I am of opinion that under this section the complaint must show affirmatively that the mortgage was not given to secure the purchase money or any part thereof. Here is an exeeption in the enacting clause of the statute which must be negatived by the plaintiff in the first instance. Spiereo v. Parker, 1 Term R. 141. This is not done in the complaint in this case. Upon this ground, without expressing any opinion upon the question considered and determined by the majority of the court, I concur in the conclusion that the order overruling the demurrer should be reversed.