Wilson v. Christopherson, 53 Iowa 481

Wilson v. Christopherson

53 Iowa 481 | Iowa | 1880

Adams, Ch. J.

v. homescSaiVlmortgage: husBand and wife. Section 1988 of the Code provides that “ where there is no special declaration to the contrary the homestead of every family, whether owned by the -i , -i .„ “ husband or wile, is exempt from judicial sale.” _ . ¡Section 1990 provides that “a conveyance or incumbrance by the owner is. of no validity unless the husband and wife, if the owner is married, concur in and sign the same joint instrument.”

Two questions are presented in this case. The first is as to whether the answer shows that the forty acres in question constitute the homestead of the defendant’s family, and if so, second, whether Even Christopherson concurred in and signed the same joint instrument within the meaning of the statute, so as to create a valid incumbrance.

There is no express statement that the defendants constitute a family, or that as a family they hold the forty acres in question as their homestead. The appellee insists, therefore, that it does not appear that the forty acres is a homestead within the meaning of the statute. But the answer describes the defendants as husband and wife, and expressly avers that the property is their homestead, and we cannot think that the defendants had the intention of using the word homestead in any other than its statutory sense.

The second question is more difficult -of determination. Even Christopherson signed the mortgage with her husband. Did she “ concur in and sign the same joint instrument?” In one sense she certainly did. But did she concur in and sign *483it as an incumbrance? In other words, must she be regarded, by reason of her signature, as subscribing to and concurring in that part of the instrument whereby the incumbrance was ’designed to be created?

If that had been her intention, she should properly have joined in the granting part of the instrument. According to the purpox-t of the instrument, she joined merely for the purpose of releasing dower. In our opinion, we should not be justified in holding that she is bound further than the instrument expressly purports to bind her. Sharp v. Bailey, 14 Iowa, 387; Fuller & Co. v. Hunt, 48 Iowa, 163.

It is not claimed by plaintiff that a mere release of dower by the defendant Even was sufficient of itself, strictly considered, to make the xnortgage valid as against the homestead. Its validity is claimed upon the ground of what must be deemed to be her probable intention in the matter. But it was her right to understand the instrument precisely as it reads, and it is not -for us to say that she did not.

The view here expressed is in harmony with Edgell v. Hagens, ante, 223, and is, to some extent, supported by it. In that case the court refused to go beyond the instrument. In our opinion the demurrer was improperly sustained.

Reversed.