141 Va. 355 | Va. | 1925
delivered the opinion of the court.
The single question involved here is whether, or not a husband may convey a homestead in real property directly to his wife, so as to bar his heirs at law, who are not his children, aftej her death, frpm thereafter claiming the property as his heirs at law.
C. J. Russ, on September 15, 1910, claimed his homestead exemption in certain real estate in Norfolk by proper homestead deed, and shortly thereafter, on November 10, 1910, by his sole deed, in which his wife, Lelia M. Russ, did not join, conveyed it directly to her. C. J. Russ died intestate without descendants, and the plaintiffs here, his brothers and sisters, are his heirs at law. His widow, Lelia M. Russ, the grantee in the deed, married Walter A. King, and died intestate in 1913, leaving her husband, Walter A. King, surviving as her sole heir at law, the defendant.
There was a jury trial and the court instructed them that the deed from O. J. Russ to Lelia M. Russ, dated November 10, 1910, is a valid and subsisting deed, and that they should find for the defendants. The verdict and judgment of which the plaintiffs are here complaining followed.
The errors assigned are, the granting of the instruction asked by the defendants and the refusing of two instructions offered for the plaintiffs, one to the effect that the deed was invalid, and directing the jury to find for the plaintiffs, and the other to allow them damages for the fair rental value, during the period the defendant held possession thereof. So that, if the instruction which was given correctly construed the deed and statute applicable to these facts, the judgment should be affirmed; if not, it should be reversed.
The clause of the statute in force at the time of this
In Thompson on Homesteads and Exemptions, section 473, this is said: “The policy of those statutes which restrain the alienation of the homestead without the wife joining in the deed is to protect the wife, and to enable her to protect the family, in the possession and enjoyment of a homestead, after one has been acquired by the husband. They are not intended to
In accordance with this view, it has been held in Riehl v. Bingenheimer, 28 Wis. 84, that a conveyance of an undivided three-fourths of the husband’s homestead to one as trustee for the grantor’s wife and two children was not void for want of the wife’s signature, since it was not an “alienation” of the homestead, within the meaning of the statute.
In Waples on Homestead and Exemption, page 395, section 9, this, which is well supported by the cases, is said: “Family protection being the object of the law when inhibiting alienation, there is no contravention of the spirit of the law when the homestead is conveyed to' his wife, or to his wife and children, by the owner who is the head of the family.” And again in the same section: “Though a statute provides that ‘the homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife,’ yet the husband alone may convey it to his wife. If the transaction is free from fraud, and the- rights of creditors and subsequent purchaser's are not contravened, there is no necessity for both husband and wife to join in conveying to a third person, that such person may then deed the property to her. The direct conveyance is as good as though the title had taken the circumlocutory course through a third party as trustee. The rule fails when the reason fails. The rule is that both spouses shall join in the conveyance; what is the reason? This restraint upon alienation is for the protection of the marital parties, especially the wife, and to secure a home for the family.”
Among the leading cases is. Burkett v. Burkett, 78 Cal. 310, 20 Pac. 715, 3 L. R. A. 781, 12 A. S. R. 58. In distinguishing the cases which hold such conveyances invalid when made to third parties, this is said: “The eases cited construe the statute as exacted in the interest of the wife, where the declaration is by the husband, and hold that no conveyance in derogation of her rights under the homestead can be effective unless she joins in the same. But all of the eases relate to conveyances to third parties, which are necessarily in derogation of her homestead rights. It is true the case of Tipton v. Martin [71 Cal. 325] was a conveyance to the wife, but only in trust and for the benefit of the cestui que trust. The case before us presents an entirely different question. The conveyance was not in derogation of the homestead rights of the wife. Being a conveyance of the legal title from one of the joint owners of the homestead right to the other, the property must be held to remain a homestead as before. The requirement of the statute that the wife shall join in the conveyance only applies to a conveyance or abandonment of the homestead. As the deed under consideration did not in any way affect the homestead, it is not within the statute, and no reason occurs to us for holding such a conveyance to be void.” There the wife’s title under such a deed was held good against her husband who was the grantor in the deed, and from whom she had been subsequently divorced.
Turner v. Bernheimer, 95 Ala. 241, 10 So. 750, 38
Such deeds, in many States where the restraining statutes are similar, have been very generally upheld, as is apparent from the cases which we are about to cite. In addition to the cases which we have already cited, we find: Tatum v. Tatum, 191 Ala. 45, 67 So. 977; Bassett v. Powell, 178 Ala. 340, 60 So. 88; Wallace v. Feibelman, 179 Ala. 589, 60 So. 290; Luhrs v. Hancock, 6 Ariz. 340, 57 Pac. 605; affirmed by U. S. Sup. Ct. in Luhrs v. Hancock, supra; and Kindley v. Spraker, 72 Ark. 228, 79 S. W. 766, 105 A. S. R. 32; Polk v. Stephens, 126 Ark. 159, 189 S. W. 837; Harsh v. Griffin, 72 Ia. 608, 34 N. W. 441; Beedy v. Finney, 118 Ia. 276, 91 N. W. 1069; Furrow v. Athey, 21 Neb. 671, 33 N. W. 208, 59 Am. Rep. 867; Hall v. Powell, 8 Okla. 276, 57 Pac. 168; Earl v. Mundy (Tex. Civ. App.), 227 S. W. 970; Thompson v. McConnell, 107 Fed. 33, 46 C. C. A. 124; Rawlins v. Dade L. Co., 80 Fla. 398, 86 So. 334; Wehe v. Wehe, 44 N. D. 288, 175 N. W. 366.
It is urged by the plaintiff in error here that a husband should not be allowed “to claim his homestead as the head of a family, and then, as it were, resign as head by making a deed to his wife. Then it is further said that such a deed, “if valid, would bar even his curtesy, so that thereafter the wife could convey the property to an entire stranger without the husband joining at all in the deed to the stranger.”
For the contention that the husband could be barred even of his curtesy by the sole act of his wife,
For these reasons the judgment will be affirmed.
Affirmed.