Alt v. Banholzer
| Decision Date | 18 December 1888 |
| Citation | 39 Minn. 511,40 N.W. 830 |
| Parties | ALT v BANHOLZER. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
A mortgage (not for purchase money) of his homestead, by a married man, without his wife's signature, is void. Following former decisions. 1
The fact that the husband and wife are subsequently divorced will not render it valid.
The covenants of title in such a mortgage will not operate as an estoppel against the mortgagor or his assigns.
In order that covenants in a deed may work an estoppel, it must itself be a valid instrument.
Appeal from district court, Hennepin county; HICKS, Judge.
Action by Anna M. Alt against Frederick Banholzer to have a mortgage declared void. Judgment for plaintiff, and defendant appeals. For former opinion, see 29 N. W. Rep. 674.
Jordan, Penney & Hammond, for appellant.
Thomas Canty, for respondent.
The only facts here material are that a married man executed upon his homestead a mortgage, (not for purchase money,) with covenants of title, but without his wife's signature. Subsequently the wife obtained a divorce, and, having since become the purchaser of the premises, brings this suit against the mortgagee to have the mortgage adjudged void. Inasmuch as the court finds as facts that the mortgagee knew when he took the mortgage that the mortgagor was a married man, and that the plaintiff, when she purchased, did not agree to pay the mortgage, the questions involved on a former appeal (36 Minn. 57,29 N. W. Rep. 674) do not now rise. Two or three well-settled propositions of law are decisive of the case.
1. Under our statute a conveyance or mortgage (not for purchase money) of his homestead, by a married man, without his wife's signature, is absolutely void, and is not rendered valid by the fact that the premises subsequently lose their character as a homestead. Barton v. Drake, 21 Minn. 299. Decisions from other states, construing their statutes as protecting only what may be called the “homestead right,” and hence holding that the husband has an estate in the premises outside of and beyond that right, which may be the subject of a sale or mortgage by his sole deed, are not in point.
2. The fact that in this case the wife has since obtained a divorce from the mortgagor is immaterial. A decree of divorce does not relate back, but takes effect only from the date of the judgment.
3. The covenants in the mortgage cannot operate as an estoppel by deed against the mortgagor or his assigns. To work an...
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...children. Martin v. Harrington, 73 Vt. 193, 50 A. 1074, 87 Am. St. Rep. 704. Nor by a subsequent divorce. Alt v. Banholzer, 39 Minn. 511, 40 N. W. 830, 12 Am. St. Rep. 681. This court so held in most unmistakable language in Herron v. Knapp, Stout & Co., 72 Wis. 553, 556, 40 N. W. 149, 150,......
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...Ball, 2 Dall. 270; Butler v. Court &c., 101 P. 481; 16 Cyc. 777; Gray v. Zehner, 72 P. 228; R. R. Co. v. Plow Co., 41 N.E. 483; Alt v. Banhalzer, 40 N.W. 830; Goff Hankins, 39 N.E. 294.) A married woman is not estopped by deed not executed in accordance with the statute, nor does estoppel i......
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