Olson v. Nelson

3 Minn. 53 | Minn. | 1859

Lead Opinion

By the Oou/rt

— Elandrau, J.

The hnortgage in the complaint set out, was executed on the 23d day of June, 1856, and consequently must be governed by the laws then in force, as to its validity or invalidity. It was executed by the Plaintiff in Error alone, and was upon his homestead, he being at the time a married man.

It is claimed by the Plaintiff in Error, that the signature of the wife was essential to the validity of the instrument, and we are cited to Sections 93-94 of the JR. S. on page 363. Section 93 declares what character of homestead “ shall be exempt from sale on execution or other process of a Court,” and covers the case of the Plaintiff in Error, herein, and provides that “ no release or waiver of such exemption shall be valid unless the same shall be in writing, subscribed by such householder and his wife, if he have one, and acknowledged in the same manner as conveyances of real estate are by law required to be acknowledged.”

Section 94, as amended by the laws of 1854, page 103, declares that “ such exemption shall not effect any laborers’, mechanics’ or other lien for labor performed, or materials furnished in the erection, alteration or repairs of any building, or addition thereto, on such land, nor extend to amp mortgage thereof lawfully obtained, nor to any sale for non-payment of taxes or assessments thereon, nor to any debts contracted, or liabilities incurred for the purchase of said land.”

It is quite evident that the intention of the Legislature was to exempt from “ sale on execution, or other process of a Court,” this homestead, as against any general indebtedness that the owner might incur, not connected with the land itself, or the improvements thereon; and they have made such exceptions only as will prevent the owner from increasing the value of his land at the expense of those who furnish him with the labor or materials to do it, as will protect the public in the collection of taxes and assessments, and as will include liens voluntarily created by mortgage.

The exemption and the exceptions to its operation must be read together; they are one act; and as to the class of claims excepted, it cannot be said that there ever was any exemption at all; the land stands in relation to them, as any other land of the owner would; exactly as if the law had never been passed at all. Such being the case, there can be no such thing as a “ waiver or release ” of the exemption in such cases, as it never existed; and that provision of Section 93, which says, that “ no release or waiver of such exemption shall be valid unless the same shall be in writing, subscribed by such householder and his wife, if he have one,” &c., cannot refer to any of the excepted class of claims, among which is a mortgage lawfully obtained.

These words “release or waiver of such exemption,” can ouly refer to an “ execution or other process of a Court,” and prevent the husband from acting alone when the homestead is so attacked, as it is only exempted from such process, and we think the exemption being limited as it is to such process, a mortgage lawfully obtained, and taxes and assessments would have been collectable against it without any exception in their favor.

If there was any doubt about the meaning of the Legislature being as we have interpreted it, it would be cleared away by the act of 1858, on the same subject, the first Section of which provides for a homestead exemption against any process from a Court, and the second Section limiting the extent of such exemption, uses the very words of the Bevised Statutes in reference to a mortgage, adding, what the Plaintiff in Error claims for that act, to wit: “ 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 of the same, unless such mortgage shall be given to secure the payment of the purchase money or some portion thereof,” making it quite evident that the Legislature of 1858 deemed the legislation of 1851 imperfect in this particular.

The Plaintiff in -Error claims that the word “ release,” as used in the statute includes a mortgage. The view we have taken of the application of that word, is an answer to this point, but there is a still further one, which is, that the statute being one exempting a debtor’s property from the payment of his debts, is in derogation of the common law, and must be strictly construed. Rew vs. Alter, 5 Denio, 119. We recognized this principle in the case of Grimes vs. Bryne, argued at the December term of this Court, in 1858. We cannot extend Dy implication, statutes of this nature.

The judgment should be affirmed.

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Dissenting Opinion

Mr. Chief Justice Emmett

dissenting, filed the following opinion:

I am unable to agree with my learned associates in the construction they give to the homestead exemption law of 1851. It has seemed to me, that the exemption of a homestead, is intended more for the benefit of the debtor’s family, than of the debtor himself; to guard the wife and children against the rapacity of creditors, and the improvidence as well as the misfortune of the husband and father. Such a construction, therefore, should be given the statute as would afford the protection contemplated by the passage of the act. Put to so construe it as to permit the husband, by a simple mortgage, in which the wife does not join, and of which perhaps she is utterly ignorant, to bind the homestead, to the entire exclusion of the family, is to deprive the wife and family of all protection from the law, and enables a weak or unworthy husband to sacrifice the hallowed home with all its clustering associations, to satisfy the demands of unfortunate creditors. Such a construction to my mind defeats the very object of the law, opens wide the door to fraud, and invites the schemes of the unprincipled and

I regard the homestead law as recognizing these family rights, and placing them beyond the control of the husband as well as his creditors. Sec. 93, provides that no release or wamer of the exemption of the homestead shall be valid unless the same be in writing, signed by the householder cmd his wife, if he have one, and acknowledged, in the same manner that conveyances of real estate are acknowledged; evidently intending by this provision to put it out of the power of the husband to deprive the family of the homestead, without the full consent of the wife. Can we then reasonably come to the conclusion that in the very next Section, and indeed in the very next sentence, the Legislature intended to undo what they hadjust done, and give the husband absolute control over what they had just guarded with such zealous care ? The succeeding Section, it is true, provides that “ such exemption shall not extend to any mortgage thereof lawfully obtained,” but this must be construed with reference to the provisions of the Section preceding, and the general object of the exemption. I hold that a mortgage is here referred to, only as being one mode of releasing the homestead from the exemption attached to it, and believe that the words “ lawfully obtained,” have direct reference to the manner in which that release must be executed, according to the preceding Section, in order to be valid and binding on the wife. If, however, the husband could without consent of the wife, mortgage the homestead at pleasure, and the exemption does not extend to such a mortgage, then the homestead law which we have affected to regard with so much favor? as protecting the family against the husband as well as the creditor, becomes a mere farce.

If this statute must have a literal construction, and the exemption cannot extend to mortgages, it would, in my opinion, be but reasonable to confine its application to such mortgages only, as had been obtained, prior to the passage of the law. This it is conceived would be more in accordance with the spirit of the age, and the design of the Legislature, as generally understood and acted upon from the time this law was passed, to the commencement of the present action.

The act of 1858, is referred to, as establishing the construetion asked by the Plaintiff, but to my mind, that act is declaratory only, and tbe provision referred to, inserted only to put the question here at issue beyond controversy.