30 W. Va. 358 | W. Va. | 1887
On the first day of December, 1874, Henry G. Davis and others conveyed to Cornelius Moran lots Nog. 169 stud 170 in
On April 2,1880, Cornelius Moran and Bridget, his wife, executed to W. C. Clayton, trustee, a deed of trust on said homestead property, together with all the household and kitchen furniture, and all the hotel, bar, and ten-pin alley fixtures in the house, to secure a large amount of debts. This deed was properly acknowledged by Moran and wife on the third day of April, 1880, and the same day admitted to record. This deed was by its own terms “ subject to the homestead, as this clause shows;” “but the lots in Keyser above conveyed are subject to the homestead right of O. Moran to the amount of $1,000.00 as shown by his declaration of homestead, duly recorded,” etc.
On December 27,1881, Moran and wife executed another deed of trust to the same trustee, conveying the homestead lots, to secure the debt of the defendants Clark and Boyd; amounting then to $1,000.00. In this deed, we find the following, in the granting clause, after describing the two lots : “Together with all the buildings, fences, and other impx-ove-
On May 10, 1883, the said Moran and wife executed still another deed of trust on said homestead lots and appurtenances to W. 0. Clayton, trustee, to secure the payment of a note of $1,000.00 payable to James Clark & Co. This deed contains the following: “ And the homestead right, to the amount of $1,000.00, set apart by the said O. Moran by his declaration of homestead, recorded in said county of Mineral, in deed book 5, page 190, is hereby waived and set aside, so that this conveyance is wholly free therefrom.” This deed was properly acknowledged by Moran and wife on the tenth May, 1883, and on the same day admitted to record.
The trustee, Clayton, advertised and sold the property, and Cornelius Moran filed his bill in the Circuit Court of Mineral county at June rules, 1885, in which he set up the foregoing facts, and insisted that he could not incumber and waive his homestead* and also that said property was sold for an inadequate price, and was purchased by the defendant and James Clark. He alleges, also, other reasons for setting aside the deed, and prayed that the court would declare his right to a homestead of $1,000.00 in value in said property, and that the deed be set aside, and declared null and void; and, if the court deemed it necessary, that under its decree the property might be sold, and his homestead preserved to him; and for general relief. Answers were filed by Clayton, the trustee, also by defendants Boyd and James Clark, insisting that the sale was proper, and that the homestead was waived by both Moran and wife in the said deeds of trust.
On the twentieth of January, 1886, the court decided that Cornelius Moran had the right by deed of trust, in which his wife united, to convey his right, of homestead in the said property, and that the homestead, by said deed, passed to the trustee, and that the court could not set aside the deed,
On September 18,1886, the court entered a final decree in the cause, in which the affidavits were considered, and in open court James Clark offered to increase Ins bid to $2,500.00, after the court had indicated that in its opinion the price was low. Clark’s offer was accepted, and the sale confirmed to him at $2,500.00. Moran thereupon moved the court to set aside out of said purchase-money $1,000.00 as his claim of homestead in said property, to be disposed of or- invested for his benefit in such way as the court might direct; which motion the court refused to grant, and proceeded to order the proceeds of the sale to be distributed, and further ordered that “ if the plaintiff, or some one for him, shall, within twenty days from this date, give to said special commissioner a bond with good security in the penalty of $200.00, with condition that on a resale of said property it shall sell for $2,750.00, or the parties to the said bond will pay the sum of $200.00, then the said commissioner shall resell the said property on the same
From the decrees of the twentieth of January, 1886, and the eighteenth of September, 1886, the plaintiff Moran appealed; Appeal granted on November 6,1886.
The principal question to be decided in this cause is whether the deeds of trusts from Moran and wife, conveying the property set apart as a homestead, are valid. It is insisted, by counsel for appellant, that said deeds are void; that they had no right, and were not authorized, to so incumber the homestead. They undoubtedly had the right, as we shall see, to thus create liens on the homestead, unless prohibited by the Constitution, or statute made in pursuance of the Constitution. It is a rule that exemption laws are to be construed favorably towards the debtor, to advance the object of the Constitution and statute in their favor. Kimpton v. Bronson, 45 Barb. 632; Becker v. Becker, 47 Barb. 499. The law seems to be well settled that a waiver of .a debtor’s right to claim personal property as exempt from execution, when attempted to be made by an executory contract, is ineffectual, and will not be enforced. Therefore a clause added to a promissory note “ waiving the benefit of all exemption laws ” is contrary to public policy, and void. Kneettle v. Newcomb, 22 N. Y. 249, 78 Amer. Dec. 186; Recht v. Kelly, 82 Ill. 147; Carter's Adm'r v. Carter, 20 Fla. 558; Branch v. Tomlinson, 77 N. C. 388; Curtis v. O'Brien, 20 Iowa 376; Maxwell v. Reed, 7 Wis. 582; Blalock v. Elliott, 59 Ga. 837; Denny v. White, 2 Cold. 284; Phelps v. Phelps, 72 Ill. 545; Moxley v. Ragan, 10 Bush 156.
In Kneettle v. Newcomb, 22 N. Y. 249, Denio, judge, said : “ I am of opinion that a person contracting a debt can not agree with the creditor that in case of non-payment he shall be entitled to levy his execution on property exempt from levy by the general laws of the State. The statutes which allow a debtor, being a householder, and having a family for which he provides, to retain, as against the legal remedies of his creditors, certain articles of xjrime necessity, to a limited amount, are based upon views of policy and humanity which would be frustrated if an agreement like that contained in these notes, entered into in connection with the principal
In Carter's Adm'r v. Carter, 20 Fla. 569, the Court, by Randall. O. J-, said: “We have been unable to find in reports, text-books, or digests that it has been held anywhere, except in Pennsylvania, that a written agreement, contained in a note, to waive the right to claim an exemption of personal property from levy and sale to satisfy a judgment rendered on the note, has been sustained; and even in that
In Recht v. Kelly, 82 Ill. 141, the Court said, after citing a number of authorities : “ The principle of the cases is that the exemption created by the statute is as much for the benefit of the family of the debtor as for himself, and for that reason he can not, by an executory contract, waive the provisions made by law for their support and maintenance. Such contracts contravene the policy of the law, and hence are inoperative and void. The owner may, if he choose, sell or otherwise dispose of any property he may have, however much his family may need it; but the law will not aid him in that regard, or permit him to contract in advance that his creditors may use the process of the courts to deprive his family of its benefit and use, when an exemption has been created in his favor. Laws enacted from considerations of public concern, and to subserve the general welfare, can not be abrogated by mere private agreement.”
In Reed v. Bank, 29 Gratt. 719, it was held that the act (Oode 1873, ch. 183, § 3,) which authorizes the waiver of the homestead exemption is not in conflict with the eleventh
Bowman v. Smiley, 31 Pa. St. 225, 72 Amer. Dec. 738, is a case in conflict with the decisions above cited. There it was held on the broadest grounds, without any statutory authority, that a debtor may waive his statutory privilege of exemption from execution of a portion of his property; that waiver of exemption from execution, made at the time the debt is created, is based on the same consideration as that on which rests the liability to pay, and is irrevocable. The waiver in this case was in the body of the judgment on which the execution issued from the levy of which the debtor sought to have the property relieved. The opinion was delivered by Strong, J., in 1858, and no case is cited in the opinion.
But in Firmstone v. Mack, 49 Pa. St. 387, 88 Amer. Dec. 507, the same Court expressly held that an agreement of a laborer to waive the proviso of the statute exempting wages
It is apparent that there is no serious conflict of decisions on the proposition that where the statute provides for the exemption of property, that a debtor can not, by a mere ex-ecutory contract, bind himself to waive the benefit of the statute. From this it is argued that when such exemptions are provided for by statute, that the debtor can not, even when there is no statute forbidding it, incumber by lien either his personal property or his homestead set apart by
In the case above cited from 2 Dill. 320, (In re Gross,) it was held that under the statute (of Nebraska the husband and wife may make a valid mortgage of the homestead property ; and that an express waiver of the homestead right is not essential to the validity of such mortgage. Dillon, J., after quoting the statute which provides for the exemption of the homestead property, says: “ There is no provision in the statute prohibiting the alienation, sale, or mortgage of the homestead, or of any of the other property exempted by the statute from judical sale; nor is there any provision respecting the mode of conveying the homestead; but there are general provisions relating to the manner of conveying real property, in conformity with which the mortgage here in question was executed. Under these circumstances, I perceive no difficulty in the question here presented. The legal title to the lots occupied as a homestead being in the husband, he and his wife, by joining in an absolute conveyance thereof, might undoubtedly make to the purchaser a perfect title. There being no restriction on the right of disposition, I think it equally clear that they could in this mode make a valid mortgage upon the homestead. ”
In Bank v. Lyon, 52 Miss. 181, Simrall, O. J., quoted the
The Constitution of Nevada provides: “A homestead, as provided by law, shall be exempt from forced sale under any process of law, and shall not be alienated without the consent of husband and wife, when that relation exists: * * * provided, the provisions of this section shall not apply to any process of. law obtained by virtue of a lien given by the consent of both husband and wife; and laws shall be enacted providing for the recording of such homestead within the county in which the same shall be situated.” In March, 1865, the Legislature passed the act declaring that “ no morL
Article 7, § 1, Const. Ga., adopted in 1868, is as follows: “ Each head of a family, or guardian or trustee of a family of minor children, shall be entitled to a homestead of realty to the value of $2,000 in specie, and personal property to the value of $1,000 in specie, both to be valued at the time they are set apart; and no court or ministerial officer in this State shall ever have jurisdiction or authority to enforce any judgment, decree, or execution against said property so set apart, including such improvements as may be made thereon, from time to time, except for taxes, money borrowed and expended in the improvement of the homestead, or for the purchase-money of the same, and for labor done thereon, or material furnished therefor, or removal of incumbrances thereon. And it shall be the duty of the general assembly, as early as practicable, to provide by law for the setting apart and valuation of said property, and to enact laws for the full and complete protection and security of the same to the sole use and benefit of said families as- aforesaid.” In 1868 the Legislature passed an act, one provision of which declared, to the property set apart as a homestead: “ Said property so set apart can not be incumbered or aliened by the husband ; but if the same be incumbered and sold by him and his wife jointly, or if they, with the approval of the ordinary for the time being, indorsed on the incumbrance or deed, said in-cumbrance or deed shall be as valid as if said property had never been so set apart.” In 1876 the Supreme Court of Georgia held that, “ after a homestead has been claimed and set apart, it can not be incumbered by mortgage, .except for the objects specified in the Constitution. A mortgage on the homestead, executed jay husband and wife, and apjjroved by the ordinary, which purports to be made to secure a debt for money borrowed, ‘ to enable us tq carry oil oqr farming
In Van Wickle v. Landry, 29 La. Ann. 330, it was held that “ a mortgage on property exempt under the homestead act can not be enforced and the owner of such property may sell the same free from the mortgage he has imposed on it.” The suit was mpon a promissory note of defendant, the payment of which was secured by a mortgage on a tract of land containing about 67 acres. The plaintiff asked payment for the amount of the note and interest, and for the recognition and enforcement of the mortgage. The defendant admitted the execution of the note and mortgage, but denied that the mortgage could be recognized or enforced, because the property was exempt from seizure by the provision of the homestead act of 1865. Manning, O. J., said: “ If this were a nova qumtioiri this Court, whether the execution of a mortgage by a debtoris not of itself a waiverof the exemption of the property mortgaged, we should be inclined to give to this deliberate act of the mortgagor a significance and effect in keeping with the express declaration of the mortgagee; but the scope and effect of the act providing for the exemption has been too often adjudicated by this Court to permit its consideration as an original proposition, and it is in deference to the doc
In the case of Lanahan v. Sears, 102 U. S. 318, it was held that where a party, on receiving an absolute deed, covenants with his grantor to reconvey the lands when the money which it was given to secure shall be paid, both instruments must be taken together as constituting a mortgage; and, further, that the mortgagee of a homestead in Texas can not maintain ejectment therefor if the “forced sale ” thereof be prohibited by the Constitution of the State which was in force at the date of the mortgage. This was an appeal from the Circuit Court of the United States for the Western District of Texas. Section 15, art. 12, of the Constitution of Texas, adopted in 1868, is as follows: “The Legislature shall have power, and it shall be their duty, to protect by law from forced sale a portion of the property of all heads of families. The homestead of a family, not to exceed two hundred acres of land, not included in a city, town, or village,) or any city, town, or village lot or lots not to exceed five thousand dollars in value at the time of their designation as a homestead, and without reference to the value of any improvements thereon, shall not be subject to forced sale for debts, except they be for the purchase-money thereof, for the taxes assessed thereon, or for labor and material expended thereon; nor shall the owner, if a married man, be at liberty to alienate the same, unless by the consent of the .wife, and in such manner as may be prescribed by law.” The Circuit Court overruled a demurrer to the injunction bill, and, the defendant declining to answer, the court decreed in favor of the complainants.
Mr. Justice Field, who delivered the opinion of the Court, after referring to the constitutional provision, said: “The premises in question, therefore, could not be sold under any decree in a suit for the foreclosure of the mortgage. The prohibition of the Constitution extended to any species of compulsory disposition of the homestead, whether denominated a sale or otherwise. A similar prohibition in the Constitution of 1845 was so construed by the Supreme Court of the State in Sampson v. Williamson, contained in 6 Tex. 101. In that case, Chief Justice Hemphill said that ‘the Constitution obviously intended that the homestead should be ex
The Supreme Court in this cause but does what it always had done, — recognized the construction which the court of last'resort in a State puts upon its own Constitution. It- here recognized the distinction made by the Supreme Court, of Texas, that a sale under a decree of foreclosure was a “ forced sale ” within the meaning of the constitutional provision, and inhibited by it. But the very case cited by Mr. Justice Field, Sampson v. Williamson, 6 Tex. 101, makes a distinction which, to my mind, is more fanciful than real, between a mortgage with no power to sell, and a mortgage or deed of trust, with power therein to sell the premises. A sale under a decree of foreclosure, the court says, is a “ forced
In Black v. Rochmore, 50 Tex. 95, the Court, by Bonner, J., said: “As an abstract proposition, it would seem to accord fully'with justice that both the husband and wife and their estate should be bound by an express agreement, entered into with all the formalities of law, to make the homestead a security for an indebtedness, created, perhaps, upon the very faith of this security. Such contracts, when coupled with a power of sale, have been repeatedly held valid if executed in the lifetime of the husband. Jordan v. Peak, 38 Tex. 429. As limitation was placed upon the power to encumber the homestead, it is perhaps to be regretted that the distinction first intimated in the case of Sampson v. Williamson, 6 Tex. 102, has obtained by subsequent decisions approving it, which discriminated against this power when sought to be enforced under the safeguards of judicial process, and in favor of it when executed by the unrestrained will of a trustee, who is generally the beneficiary in the trust.”
In Wing v. Cropper, 35 Ill. 256, it was held that a sale by a decree of a court of equity, in a suit to foreclose a mortgage, under an order to the master to make the sale, is a forced sale, as much so as if the sale were made under a fieri
In Peterson v. Hornblower, 33 Cal. 266, the court holds that the phrase “ forced sale, ” as used in the eleventh article, § 15, Const., which provides that the “ Legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families, ” and, where used in the several statutes passed in pursuance of this constitutional requirement, is not synonymous with “ sale on execution, ” etc., but means a sale against the will of the owner, and does not apply where the owner consents directly to the sale, or does so indirectly, by consenting to or doing those acts or things that necessarily or usually eventuate in a sale; as for instance, a sale under a power contained in a mortgage, or a decree of foreclosure. This decision is in accord with the current of authority; nearly all cases so hold and, it seems to us, with reason. It is hard to see how a sale can be called “ forced ” where one consents, either directly or indirectly, that it shall be made, and in the very instrument in which the lien is created. He does it directly when he executes a power of sale, and he does so indirectly when he does that which at the time was intended in a certain contingency should eventuate in a sale of the property.
In White v. Owen, 30 Gratt. 43, it was decided that a deed of trust to secure a debt executed by the grantor and his wife, conveying real and personal property which had been previously set apart by the husband as his homestead, has priority over the homestead exemption, and the said property may be subjected to satisfy the.debt. The Constitution of Virginia provides that every householder or head of a family shall be entitled to hold his property, to be selected by him, not exceeding the value of $2,000.00, in addition to what is exempted by the poor laws, “ exempt from levy, seizure, garnishing, or sale under any execution, order, or other process. ” Another section of the same. article declares : “ Nothing contained in this article shall be construed to interfere with the sale of the property aforesaid, or any part thereof, by virtue of any mortgage, deed of trust, pledge,
Mr. Freeman, in his note to Poole v. Gerrard, 65 Amer. Dec. 482, has well and forcibly said : “ The law of homestead is so entirely statutory, and the statutes of the different States concerning it are so various, and so often amended, that it is difficult to formulate any general principles or rules relating to any branch of- the subject. There is, however, a fair degree of uniformity of statutory and case law upon the general subject of conveyance of homesteads. * * * The power of alienation is not derived from the statute relating to alienation of homestead. It is an incident of the ownership of the property, independent of the homestead law; and the directions and prohibition of the statute as to the alienation are mere restrictions upon this antecedent power. Without any such restriction, the property passes by a conveyance as if there were no homestead. No express waiver of the homestead is essential, unless the statute requires it, because, the property having passed by the conveyance, the homestead necessarily ceases. ”
From our investigation of this interesting subject, these propositions are naturally deduced: That the people in their Constitution, as far as future debts may affect it, have the right to provide for any sort of a homestead, guarded as they please; subject to restrictions, or without restrictions; to prohibit the owner of the homestead from incumbering it, or to permit it to be done as in their wisdom they may see fit. That, unrestricted by the Constitution, the Legislature may exercise the same power. That where there is neither constitutional nor statutory prohibition, as incident to the right of ownership, the owner of the homestead may sell or incum
We will now examine our own constitutional and statutory provisions as to the subject, and see if, under these principles, the deeds of trust are valid or otherwise. Section 48, art. 6, Const. 1872, pro'vides that “ any husband or parent residing in this State, or the infant children of deceased parents, may hold a homestead of the value of one thousand dollars, and personal property to the value of two hundred dollars, exempt from forced sale, subject to such regulations as shall be prescribed bylaw: provided, that:such homestead exemption shall in no wise affect debts or liabilities existing at the time of the adoption of this Constitution: and provided, further, that no property shall be exempt from sale for taxes due thereon, or for the payment of purchase-money due upon said property, or for debts contracted for the erection of improvements thereon. ” In Speidel v. Schlosser, 13 W. Va. 688, a majority of this Court held that this section of the Constitution does not, exproprio vigore, confer aright to a homestead. It simply imposed on the Legislature the duty to pass an act whereby a homestead of not less than $1,000.00 might be claimed by any husband or parent residing in this State, or the infant children of deceased parents,, which should be free from forced sale for debts or liabilities, other than those named in the said section 4S, as deemed proper bv the Legislature. The same point was decided in Holt v.
The first homestead act under this Constitution is chapter 193, Acts 1872-73, which provides, by section 9, that “any husband or parent, desiring to obtain the benefit of such homestead, shall make a declaration of such intention, and therein describe, with convenient certainty, such homestead, so that it may be distinguished from other property. If such husband or parent should die before making and recording a declaration of such intention, the same may be made by the widow, guardian of the infant' childreu, or some person appointed by the Circuit Court or County Court of the county for that purpose; which declaration of such intention shall be acknowledged before some officer authorized to take acknowledgment of deeds for record, which the party shall have duly recorded in the clerk’s office of the County Court of the county in 'which such homestead is situated, in a book to be kept for the purpose.” All this was done in this case.
Section 11 provides that “ any such husband or parent, except a married woman, at the time of contracting a debt,
The next act on the subject is chapter 114, Acts 1877, in which, in section 3, occurs this, language: “But- nothing herein contained shall affect or impair any right acquired under chapter 193 of the Acts of 1872-73.” In this act the manner of setting apart the homestead is different. In this act is no repealing clause, nor is there any attempt to restrain the owner in his control over the homestead.
The last act on the subject is chapter 19, Acts 1881, (Wurth’s Code, ch. 41.) In section 32 of this chapter it is provided; “But nothing herein contained shall affect or impair any right acquired under chapter 193 of the Acts of 1872-73.” In this act, in section 33, it is provided that if the value of the homestead was more than the sum of $1,000.00 at the time it was set apart, or by reason of permanent improvements put upon it after it was set apart, a creditor could file his bill to subject the excess to his claim. Section 34 provides that, “ in the case of the death of a husband or parent owning such homestead, the benefit thereof shall descend to his minor children, and shall be held and enjoyed by them as such homestead until all of the said infants, at
But it is insisted that the court erred in refusing to set aside the sale. Affidavits were filed in support of the motion to set aside the sale, because it was claimed the property sold for an inadequate price, and thereupon the purchaser offered to let the report of the sale be corrected, and the property reported as sold to him for $2,500.00. This the court did, and the sale was confirmed to Clark at $2,500.00. The affidavits for the owner stated that “affiants believe that in the near future, that the said property can be sold for an advance of from $500.00 to $1,000.00 over the price it was sold to James Clark.” Clark at once offered the $500.00 advance, and the court accepted it. The affiants did not say that at the time it was sold it would have brought,' $2,500.00 or $3,000.00, but they believe that it would in the near future bring that price, in Katie v. Mitchell, 9 W. Va. 492, it was held that the court may, in the exercise of a sound discretion, either affirm or set aside the sale where, from the facts, evidence, and circumstances before it, it appears clearly that the sale was made at a grossly inadequate price; and the court may solve the question upon affidavits or depositions in connection with the fact that a greatly larger jirice is offered to the court for the land, and secured, or offered to be secured; or it may set the sale aside upon any evidence or fact or facts before it which clearly shows that the land sold at a greatly inadequate price. See, also, Hilleary v. Thompson, 11 W. Va. 113; Hartley v. Roffe, 12 W. Va. 401; Beaty v. Veon, 18 W. Va. 291.
In Tremble v. Herold, 20 W. Va. 602, it was held that this
Under the circumstances of this case, we do not think the court would have been justified in refusing to confirm the report, and setting aside the sale. The motion must be decided on the ground of inadequacy of price alone. We have held the deeds of trust were valid. As we have shown, there had been two public sales of the property, not far apart, and at each sale it brought $2,000.00. True, the mere opinion of witnesses say it was worth $3,000.00, and then say they thought in the near future it would bring $2,500.00 or $3,000.00. The public sales test its value, when fairly made, better than the mere opinions of witnesses. One person thought it sold at its full value. It would have been error to set aside the sale under the circumstances, or at least the court did not err in refusing to set it aside. There is nothing in the offer of Clark to show it sold at an inadequate price, as even the $2,500.00 would not pay his liens against it. The acceptance of Clai’k’s advance bid, under the circumstances, was not, therefore, an error to the prejudice of the appellant. As we have seen, it would not have been error in the court to have refused to set aside the sale without any such offer.
It is also assigned as error that the court, in its decree, required the debtor to give a bond of $200.00, before the sale could be set aside. The decree provided : “ But if the plaintiff, or some one for him, shall, within twenty days from this date, give to the special commissioner a bond with good security in the penalty of $200.00, with condition that, on a resale of said property; it shall sell for $2,750.00, or the parties to the bond will pay $200.00, then the said commissioner shall resell the said property on the same terms, and
AFFIRMED.