Tucker v. Wells

• Citation: 20 S.W. 114,111 Mo. 399
• Parties: Tucker v. Wells, Administrator, et al., Appellants
• Decision Date: 02 July 1892
• Court: United States State Supreme Court of Missouri

20 S.W. 114

111 Mo. 399

Tucker v. Wells, Administrator, et al., Appellants

Supreme Court of Missouri, First Division

July 2, 1892

Appeal from Platte Circuit Court. -- Hon. J. M. Sandusky, Judge.

Affirmed.

Jas. W Coburn for appellants.

(1) The proviso in the latter part of section 2689, Revised Statutes 1879, authorizing husband and wife to mortgage a homestead clearly forbids the husband alone to mortgage it. The mortgage to Tucker, executed by Moore alone, without the joinder of his wife, is void. Riecke v. Westenhoff, 85 Mo. 642; Kaes v. Gross, 92 Mo. 659; 9 American & English Encyclopedia of Law, pp. 485, 486, and notes. It is void, not merely as to the homestead rights of the wife, but absolutely and wholly void. Conway v. Elgin, 38 N.W. 370, and note; Barton v. Drake, 21 Minn. 299. Such a mortgage does not even constitute an incumbrance on the land. Thompson on Homesteads [1 Ed.] sec. 590, p. 490; Day v. Adams, 42 Vt. 510. (2) Prior to 1879 the husband could, by his sole conveyance, defeat the prospective right of the wife to homestead. This was remedied by the proviso in section 2689, Revised Statutes, 1879. This proviso did not prevent the husband by his abandonment of the homestead, or other act, from defeating the wife of the present enjoyment of the homestead. This was remedied by giving her the right to file her claim to it, thus securing her and her children in a home despite the acts of her husband. Thompson on Homesteads [1 Ed.] sec. 230, and following. (3) The mortgage being so void, the note it was given to secure was barred by the statute of limitations, as it was dated in 1873. If the only effect of the mortgage was to prevent the statute of limitations running against the note, then the note was a debt to be proved against the estate, and not a charge against the land. (4) The agreed statement shows that the whole land was worth only $ 3,000, and that the prior mortgage to Gabbert amounted to over $ 1,500, making the value of the land, after satisfying the Gabbert mortgage, less than $ 1,500, the limit for a homestead. (5) The mortgagor, Moore, being dead, it was necessary to make his administrator a party to the foreclosure suit. Revised Statutes, 1889, sec. 7082.

N. B. Anderson for respondent.

(1) The mortgage is not barred. Lewis v. Schwenn, 93 Mo. 26; Booker v. Armstrong, 93 Mo. 58, and cases cited. Besides giving the mortgage is an acknowledgment in writing of the existence of the debt and, therefore, directly within the letter of the statute. Revised Statutes, 1879, sec. 3248. (2) First. Section 2689, Revised Statutes, 1879, gives every householder a homestead. Second. Section 2693, Revised Statutes, 1879, gives his widow and minor children the homestead in case of the death of the householder mentioned in section 2689, supra. Third. The latter part of section 2689, supra, gives the wife the right to file her claim in her husband's homestead, but she has no vested interest in it as a homestead until she does so. Thus, it will be seen that the Missouri homestead law provides for three kinds of homesteads: The first takes effect when the deed to same is filed for record; the second, upon the death of the husband; and the third, when the wife files her claim. But the wife in this case never filed any claim of homestead; therefore, it never took effect. But independent of all this defendants cannot take advantage of the homestead exemptions even if they existed in this case. Parks v. Ins. Co., 100 Mo. 373; Osborne v. Schutt, 67 Mo. 712; Furlong v. Thomson, 19 Mo.App. 367; Hombs v. Corbin, 20 Mo.App. 507: Thompson on Homesteads, secs. 820, 458, 487. (3) The case of Riecke v. Westenhoff, 85 Mo. 642, has no application to the case at bar, because in that case the point is not made that the widow had not filed her claim for homestead. The cases, Kaes v. Gross, 92 Mo. 659; 97 Mo. 186; 99 Mo. 549, have no application to this case, because in those cases the testator willed his property, and, as a will does not take effect until after the death of the testator, the will is counteracted by section 2693, Revised Statutes, 1879, which gives the homestead to the widow and minor children upon the death of the husband.

Barclay, J. Sherwood, C. J., Black and Brace, JJ., concur.

OPINION

Barclay, J.

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 Wells is his administrator.

I. The first point is that the mortgage is void because 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 by the wife, the statutory disability of the husband to deal independently with the homestead (as in this instance) does not attach.

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...