Smith v. Lackor

23 Minn. 454 | Minn. | 1877

Cornell, J.

As respects defendant’s homestead claim, and the assignment of his interest without the consent and signature of his wife, it is difficult in principle to distinguish the case at bar from Wilder v. Haughey, 21 Minn. 101, and Hartman v. Munch, 21 Minn. 107. In those cases it was ■expressly held that a vendee, in the occupancy of an eighty-acre tract of land as a homestead, under a contract of purchase, when a portion only of the purchase-money had been paid, or was due, held such an equitable interest therein as constituted him an owner, within the meaning of the homestead act, and that any assignment or mortgage of such his interest, without the consent and signature of his wife, was invalid and void. We see no reason to doubt the doctrine •of those cases, and though the point made by counsel for plaintiff herein — that the disability imposed upon the husband, by section 2 of the homestead act, in respect to his power of alienation without the signature of his wife, must bo strictly construed as confined to land of which he is the legal, and not the equitable, owner — does not appear to have been discussed by the court in the opinions given in those cases, yet it was necessarily involved and decided upon the facts as therein presented. Moreover, it is apparent from the language of section 2 that its provisions were designed to apply to the same property made subject to exemption by the 1st section of the statute. Its language is: “/Such exemption shall not extend to any mortgage thereon lawfully obtained, but such mortgage or ■other alienation of such land by the owner thereof,” etc. This clearly refers to the same exemption mentioned in the preceding section, and protects the wife against any alienation^ without her consent and signature, of whatever property may lawfully be held as a homestead under its provisions, whether the same is held by a legal or equitable title.

'The position of defendant’s counsel — that the debt contracted for the lumber which was used in the construction ■or erection of the dwelling-house on the lot in question was :a part of the purchase price paid for the homestead— was distinctly repudiated by this court in Cogel v. Mickow, 11 Minn. 475, in which it was said, in reference to such a debt, “ It is no more a part of the purchase-money (of the-real estate) than the price of a fruit-tree or a fence-post,, used for the improvement of the property, would be.” The tiling to which the homestead right attaches, under the statute, is not the house, considered alone as personal property severed from the freehold, but the real-estate interest of the owner in the land, ivhich carries with it the dwelling as an appurtenance and part of the realty. Any debt contracted in the purchase of this real-estate interest represents-, in whole or in part, the purchase-money of the property, but not debts incurred in making improvements or erections thereon of any kind. The indebtedness to Itohrer for lumber, which was used in the erection of defendant’s dwelling-house, constituted no part of the purchase price of his homestead, and the mortgage security which he attempted to give thereon for such debt, being without his wife’s signature, was invalid and of no effect.

Judgment affirmed.