185 Iowa 909 | Iowa | 1919
This action is brought to foreclose a certain real estate - mortgage executed and delivered by one Ealph Williamson to the plaintiff on the 24th day of July, 1916, given to secure two promissory notes, which then represented a valid indebtedness due from the said Ealph to the plaintiff (his father). Ealph was, at the time, a married man, and the property covered by the mortgage was his homestead. His wife did not join in the mortgage. She is the defendant herein, and claims that the mortgage is void for that reason.
It appears that Ealph and this defendant were married October 3, 1906, and soon after their marriage, entered into possession of this property, and occupied the same as a homestead, — that is, lived in it as a home, — until some time in August, 1914, when she left, and went to Texas.
“Provided, however, that the mortgage in favor of Calvin Williamson be confirmed and charged as a valid and subsisting lien against said real estate. Providing further, that the defendant take said real estate subject to the liens of the mortgages held by said Calvin Williamson.”
At the time the decree was entered, neither husband nor wife was in the physical possession of this property. They were not occupying it as a home. It had been rented to and was in the possession of tenants, who occupied under a/ lease from the husband.
On the 2d day of April, 1917, in pursuance of the decree hereinbefore referred to, Ealph Williamson, the husband, executed and delivered to his wife a quitclaim deed to the premises in controversy, duly signed and acknowledged, conveying all his right in the property to her, subject to the mortgage of Calvin Williamson (plaintiff here
In his petition, plaintiff pleads the notes and mortgage executed as aforesaid, and this decree, and asks that the mortgage be declared a lien upon the property in controversy, superior 1o any claim of this defendant, and that a special execution issue for the sale of the property.
This case involves the effect of this decree upon the rights of this defendant. It is true that our statute provides (Section 2971 of the Code, 1897) :
“No conveyance or incumbrance of the homestead, if the owner is married, is valid, unless the husband and wife join in the execution of the same joint instrument.”
The only right this defendant (the wife) had in that property at the time was the right of possession, — the homestead right. It appears that neither had any property except this homestead, at the time the divorce proceedings were instituted, and that, in her petition, she claimed a right to alimony out of this property. The subject-matter and the parties were both, before the court. The husband’s right in the property was that of fee owner. The wife’s right in the property was the inchoate right of dower. Both had the homestead right. These rights were all before the court, at the time it undertook to make a disposition of the property in its decree, and it did make a disposition of it. This was in the nature of community property, and the equities and rights of the parties in this property were before the court for consideration and adjustment. The property equities of the parties were before the court for adjustment. The court had before it a full view of the parties and their circumstances, the prop
On the whole record, we think the court erred in dismissing plaintiff’s petition, and the cause is reversed and remanded for a decree in accordance herewith. — Reversed and remanded.