35 Neb. 829 | Neb. | 1892
There is in this case one question which, according to our conclusion, is decisive of the controversy, viz., the effect of a mortgage by a husband, the head of a family, upon the homestead in this state, having at the time an, insane wife in' another state. From the pleadings and proofs it appears that the defendant William Gosson, with his three children, removed from Illinois to this state in the year 1879, and has ever since resided upon and occupied the premises in controversy as a homestead, his family in this state consisting of his three children, whose ages do not appear, and a housekeeper. At the time of his removal to this state the defendant had a wife, Margaret Gosson, who was and still is insane and an inmate of an asylum for the. insane in the state of Illinois, and who is still the wife of said defendant. It further appears that said Margaret Gos-
In Alexander v. Vennum, A. recovered judgment against M., the owner of a homestead in Iowa. The latter conveyed to Y., the defendant, his insane wife joining in the execution and acknowledgment of the deed, and immediately thereafter abandoned the property as a homestead. It was held that the conveyance by M. was void, on account of the insanity of his wife, and that a sheriff’s deed to A. in pursuance of an execution sale to satisfy the judgment in his favor passed the title to the property.
The statutory provision for the conveyance or incum
2. It is contended, however, that the defendant William Gosson is now estopped to claim the property as a homestead by reason of having represented himself tobe a single man. He is in the mortgage described as a single mah, and it is alleged that the credit represented by the mortgage was given on the faith of his statement to that effect. Defendant on the other hand denies that he ever represented to plaintiff that he was a single man and alleges that the latter accepted the mortgage with full knowledge of all the facts. The evidence upon that issue is conflicting and does not call for an examination here. Estoppel will not supply the want of power, or make valid an act prohibited by express provisions of law. The statute in effect declares a conveyance or incumbrance of the family homestead by the husband alone void not only as to the wife, but also as to the husband himself. Therefore neither is estopped from asserting the homestead right as against the grantee or mortgagee. Such is the view sanctioned by the clear weight of authority and supported by the soundest reasoning. (Connor v. McMurray, 2 Allen [Mass.], 202; Barton
3. The decree of foreclosure is defended by counsel for appellee on the ground that the property in question exceeds $2,000 in value, and that the mortgage, is valid as to the excess over and above that amount. The value of the homestead is, we think, under the issues in this case wholly immaterial. It is not doubted that in a proper proceeding-the homestead property in excess of the statutory limit may be subjected to the satisfaction of a mortgage by the husband. But if such relief is sought it should be by pleadings which put in issue the value of the homestead. The case of Swift v. Dewey, 20 Neb., 107, was in a proceeding in the nature of a creditor’s bill and is therefore not in point. (See Black v. Dusk, 69 Ill., 74; Thompson on Homesteads and Exemptions, 481.) We think, however, that the claim of appellee with respect to the value of the property is not sustained by the evidence in the record. The present value of the homestead, according to the preponderance of the evidence, is between $1,800 and $2,000, certainly not to exceed the amount last named. The decree of foreclosure will be reversed and the cause remanded to the district court with directions to enter judgment for the plaintiff for the amount of the notes introduced in evidence.
Judgment accordingly.