111 Mo. 399 | Mo. | 1892
This is an action to foreclose a mortgage. It was commenced July 10, 1889.
The facts on which the judgment in the circuit court rests were submitted there by an agreed statement, upon which that court found for the plaintiff. Defendants appealed in proper form.
The mortgage covers land which was occupied as a homestead by William Moore and his wife during his life. He died in 1887. Defendant Well's is his administrator.
I. The first point is that the mortgage is void Tbecause the wife did not join in it. The husband, Mr. Moore, alone executed it, August 8, 1879, to secure his note, dated January 15,1873.
That section of the homestead law by which this case is governed (Laws, 1873, p. 16, same as section 2689 of 1879) requires joinder of the wife in a mortgage of the homestead property (standing of record in the husband’s name) only where her claim to the property, as such homestead, has been filed and recorded as provided in that section. “After the filing of such claims, duly acknowledged, the husband shall be debarred from, and incapable of, selling, mortgaging,” etc., the homestead; but, until such claim be filed
Here it is admitted that no such claim was ever filed or recorded. So the mortgage in question must be held a valid charge upon the property, under the section mentioned and section 1 of Laws of 1875 (p. •60), same as section 2693 of the revision of 1879.
Our homestead statute differs from the laws of ■other states on this subject, rendering their decisions inapplicable. On the point under discussion the terms of our law are so clear as to dispense with the necessity of any elaborate inquiry into its meaning.
II. It is next claimed that, as this action to foreclose was not begun until more than one year after the publication of the administrator’s notice of his letters, •a certain judgment against the deceased, in favor of a Mr. Hall (which had been filed and classified in the probate court within the year), is entitled to'priority ■of payment in the course of administration.
This point was raised by the answer of Hall, who intervened and was made a party defendant in the trial ■court. (It is not claimed in this connection that plaintiff’s mortgage is barred by the short special statute of limitations in favor of such estates.)
Hnder the administration law, the mortgaged ' property is the primary fund for the satisfaction of the •secured debt (Revised Statutes, 1889, sec. 190); and, until at least a probate allowance for a deficiency is asked against the general estate, no question of priorities in the allowance or classification of this demand can arise. The mortgage creditor is certainly entitled, in this proceeding, to first exhaust his security, according to the terms of the mortgage. That is the only relief asked by him in the present case.
Ten years had not passed since the creation of the incumbrance when this action was instituted. Within that period at least, such proceedings may be begun as the cases last cited establish.
IY. Moreover, it appears from the agreed case that Mrs. Moore died in July, 1889; and that neither she nor her husband left any minor children. So that, under the ruling of this court in Poland v. Vesper (1878), 67 Mo. 727, plaintiff would clearly have been entitled to enforce his mortgage, subject to the widow’s estate of homestead; and, for stronger reason, he would be entitled to enforce it after the expiration of that estate; provided always that that security was valid in its inception.
We think it was, for the reasons stated in the first paragraph of this opinion. That proposition is, indeed, decisive of the case, and, as we resolve it, leads to an affirmance of the judgment.