Brignardello v. Cooper

• Decision Date: 04 January 1915
• Docket Number: 85
• Citation: 172 S.W. 1030,116 Ark. 103
• Parties: BRIGNARDELLO v. COOPER
• Court: Arkansas Supreme Court

172 S.W. 1030

116 Ark. 103

BRIGNARDELLO v. COOPER

No. 85

Supreme Court of Arkansas

January 4, 1915

Appeal from Garland Chancery Court; Jethro P. Henderson, Chancellor affirmed.

Affirmed.

M. S Cobb, for appellants.

1. The mortgage was void. It was a homestead and the wife did not join in the execution of the mortgage nor acknowledge it. 94 Ark. 107; 26 L.R.A. (N.S.) 574; 57 Ark. 242; 60 Id 270; 64 Id. 493; 71 Id. 286; 144 Ill. 203; 118 Iowa 458; 41 N.W. 317; 33 Kan. 53; 22 So. 134; 18 Id. 318; 108 Ark. 297; 69 Id. 596; 80 N.W. 1087. The residence of the husband is the residence of the wife. 29 Ark. 280; 27 Miss. 704; 34 L.R.A. 287, and cases supra.

2. The question is not res adjudicata, nor is the wife estopped. 94 Ark. 107.

3. The wife had the right to intervene by bill in the nature of a bill of review. 81 Ark. 154; Kirby's Dig., §§ 3902-3; 108 Ark. 297; 58 Ga. 403; 7 Dillon 351; 14 R. I. 55; 36 L.R.A. 385, and note.

Charles C. Sparks and Martin, Wootton & Martin, for appellees.

1. The wife can not maintain the action. 3 Enc. Pl. & Pr., p. 590; 104 Ark. 567; 94 Ark. 107; Story, Eq. Pl., § 421; 98 Ark. 15.

2. The homestead claim is res judicata. Kirby's Dig., § 3902; 94 Ark. 110; 108 Ark. 297; 59 Id. 211; 104 Id. 316; 101 Id. 104; 68 Id. 79.

3. Appellants never impressed this property with the character of the homestead. 69 Ark. 597; 1 Martin Chy. 40; 57 Ark. 179; 76 Id. 575; 78 Id. 479; 84 Id. 362; 94 Id. 107.

MCCULLOCH, C. J. HART and KIRBY, JJ., dissent.

OPINION

MCCULLOCH, C. J.

Appellant, Dominic Brignardello, an Italian by birth, came to this country many years ago and left his wife and child in his native land. He settled in Memphis, Tennessee, and lived there several years and then moved to the city of Hot Springs, in this State, where he still resides. He became the owner of certain lots of real estate in Hot Springs, on which a house is situated, and he mortgaged the property to appellee, Cooper, to secure payment of a debt for borrowed money. His wife did not join in the conveyance. She had not come to this country at that time, and, according to the testimony of appellee and his witnesses, said appellant held himself out as an unmarried man and obtained the loan from appellee on the faith of such representation. Appellee instituted an action against said appellant in the chancery court of Garland County to foreclose the mortgage, and was met with the plea that said appellant was a married man, that the property embraced in the mortgage was his homestead and that the mortgage is void on account of the fact that the wife of the mortgagor had not joined in the execution of the instrument. Issue was joined on that plea, evidence was adduced, and the court rendered a decree in favor of appellee, foreclosing the mortgage. There was no appeal from that decree. Subsequently, appellants, Dominic Brignardello, and his wife, Mariah Brignardello, instituted this proceeding in the nature of a bill of review, praying that the decree of foreclosure be set aside and the mortgage declared to be void on the same ground which had been pleaded in the former suit, namely, that the mortgaged property constituted the homestead of the mortgagor and that the wife had not joined in the execution of the instrument. The court sustained a demurrer to the bill and rendered a decree dismissing it.

If the wife is entitled to relief, under the facts stated, she can have that relief in an independent suit and this proceeding can be so treated. It is therefore unnecessary to decide whether or not she can attack the decree by proceedings in the nature of a bill of review.

The wife is not a necessary party to a suit to foreclose a mortgage executed by the husband, save for the purpose of barring her inchoate right of dower. To hold otherwise would be to say that the wife's interest in the homestead is direct and not one derived from the fact that it is the homestead of the husband as the head of the family. The homestead right depends upon the impressment as such and the continued occupancy thereof. He may abandon it and thus destroy the homestead right. Pipkin v. Williams, 57 Ark. 242, 21 S.W. 433; Sidway v. Lawson, 58 Ark. 117, 23 S.W. 648; Farmers' Building & Loan Association v. Jones, 68 Ark. 76, 56 S.W. 1062; Mason v. Dierks Lbr. & Coal Co., 94 Ark. 107, 125 S.W. 656; Stewart v. Pritchard, 101 Ark. 101, 141 S.W. 505; Brown v. Brown, 104 Ark. 313, 149 S.W. 330; Newman v. Jacobson, 108 Ark. 297, 158 S.W. 134.

We have a statute here which provides that "a debtor's right of homestead shall not be lost or forfeited by his omission to select and claim it as exempt before the sale thereof on execution * * * but he may * * * set up his right of homestead when suit is brought against him for possession, and if the husband neglects or refuses to make such claim his wife may intervene and set it up; provided, if the debtor does not reside on his homestead, and is the owner of more land than he is entitled to hold as a homestead, he or his wife, as the case may be, shall select the same before sale." Kirby's Digest, § 3902. Now, this statute, so far as its terms are expressed, applies to sales of the homestead under execution, and it is only by analogy that it can be applied to a suit in equity to foreclose a mortgage. It will be seen that the statute gives the wife the right to select and claim the homestead only in case the husband "neglects or refuses to make such claim," and it can have no analogous application except in those cases. So, if the wife has the right to intervene in a foreclosure suit for the purpose of claiming the homestead, it is only where the husband fails to claim it, and such is not the case here. The husband did set up the claim to the homestead and his claim proved ineffectual. He failed to successfully maintain his claim, and there has been an adjudication against him which bars the right of the wife to assert a similar claim. Farmers Building & Loan Association v. Jones, supra.

In the case just cited, which was a suit against the husband and wife to foreclose a mortgage, in the execution of which the wife had not joined, the court said: "While the act of March 18, 1887, is a limitation upon the right of the husband to convey his homestead, except by the consent of his wife it does not in any manner affect or restrict his right of abandonment. This right he has by virtue of his marital and parental authority, and when he has chosen to exercise it, as he did here, he renders the property...