Brunsdon v. Brunsdon
| Decision Date | 19 November 1924 |
| Docket Number | 36266 |
| Citation | 200 N.W. 823,199 Iowa 1099 |
| Parties | MARY L. BRUNSDON, Appellant, v. T. B. BRUNSDON et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED APRIL 8, 1925.
Appeal from Polk District Court.--L. L. THOMPSON, Judge.
ACTION in equity, to quiet title to certain real property in the city of Des Moines against an alleged mortgage lien and a claim (not a mechanics' lien) for labor and material furnished for a residence erected on the said premises during the building season of 1920 by the appellee T. B. Brunsdon. Decree establishing and confirming the lien of the mortgage and establishing and foreclosing an equitable lien in favor of T. B. Brunsdon for the material and labor furnished for the building. Plaintiff appeals.--Reversed as to the mortgage lien, and modified and affirmed as to the other claim.
Modified and affirmed as to the claim of T. B. Brunsdon reversed as to the mortgage of the appellee Turner.
Charles Hutchinson, for appellant.
C. C Putnam, Judson E. Piper, and Stipp, Perry, Bannister & Starzinger, for appellees.
I.
Mary L. Brunsdon, appellant herein, and William M. Brunsdon were, at the time of the transactions involved in this controversy, husband and wife. T. B. Brunsdon is the brother of appellant's husband. Appellant and her husband, on April 13, 1914, obtained a contract for a deed to Lot 5, and on February 23, 1918, a contract for a deed to Lot 6, all in Block 3, Broadmoor, an official plat in the city of Des Moines. Harry H. Polk & Company was named as grantor in each of said contracts, which ran to appellant and her husband jointly. On or about March 20, 1920, appellant assigned her interest in the contracts to her husband, who, on April 9th following, assigned the same to his brother, T. B. Brunsdon, one of the appellees herein. The consideration agreed to be paid for the lots was paid in monthly installments; and on May 11, 1920, T. B. Brunsdon paid the balance, of $ 154.98, due thereon, and received a warranty deed to himself to the property. On January 1, 1921, T. B. and William M. Brunsdon entered into a written contract for the reconveyance of the premises to the latter, upon the payment of $ 7,950, in the manner and upon the terms specified in the contract. There was an old residence on Lot 5 at the time the contract for a deed was entered into. Appellant and her husband moved upon the property and resided in the old residence until May 8, 1918, when it was totally destroyed by fire. A garage having in the meantime been erected upon Lot 6, the family moved into it, where they lived until Thanksgiving, 1920, when they moved into a new house erected thereon by T. B. Brunsdon, which forms the subject-matter of this controversy. On February 1, 1920, T. B. Brunsdon executed a mortgage upon the described premises to James K. Turner, one of the appellees herein, to secure the payment of a loan of $ 2,000. William M. Brunsdon built the foundation for the new residence at his own expense. T. B. Brunsdon furnished all of the material and labor and constructed the house, in pursuance of an oral contract between himself and William M. Brunsdon, by the terms of which title was to be taken by the former, and a new contract for a deed was executed by him to William M. after the improvement was completed. As already stated, a written contract was subsequently executed, in pursuance of this oral agreement. Appellees filed separate answers to appellant's petition, the appellee Brunsdon pleading as defenses ratification and estoppel, and Turner setting up the mortgage executed to him by T. B. Brunsdon. As affirmative relief, both prayed that their respective claims be established as liens upon the property. No mechanics' liens were filed, either for labor or material furnished, against the property.
The court entered judgment in rem against the property in favor of T. B. Brunsdon for $ 4,367, the balance due him, and established the same as a lien upon the property, decreed a foreclosure thereof, and ordered special execution to issue if not redeemed by appellant within 90 days, barring all right of redemption after that date. The court also confirmed and established the lien of the mortgage, making the same senior to the other lien. Subject to the above, the court found that appellant was the owner of the property in fee simple, and quieted title in her. No appeal was taken from this portion of the decree. The decree quieting title in appellant was no doubt based upon a prior decree entered September 1, 1922, in an action brought by appellant for a divorce, by the provisions of which she was given all the right, title, and interest of her husband in the property in question.
We will first dispose of the issues tendered by the answer and cross-petition of the appellee T. B. Brunsdon. Although appellant and her husband were in possession of the property under a contract for a deed, only, it nevertheless constituted their homestead. Stinson v. Richardson, 44 Iowa 373; Johnson County Sav. Bank v. Carroll, 109 Iowa 564, 78 N.W. 247. The statute exempting the homestead from judicial sale is as follows:
See, also, Section 10150, Code of 1924.
Because of certain additions therein to Section 2976, Code of 1897, we will set out Section 10155, Code of 1924, which specifies and classifies the debts for which the homestead is liable.
The portion italicized above first appears in Chapter 237, Acts of the Fortieth General Assembly.
One of the contentions of appellee, which we will later discuss, is that the property in question is liable for the purchase price thereof. Construing Section 2976 of the Code of 1897, we have repeatedly held that the homestead is not exempt from execution on a judgment for purchase money. Christy v. Dyer, 14 Iowa 438; Hyatt v. Spearman, 20 Iowa 510; Campbell v. Maginnis, 70 Iowa 589, 31 N.W. 946; Clifton Land Co. v. Davenport, 130 Iowa 94, 106 N.W. 365. Unless the claim of appellee may be classified as purchase money, or the pleas of ratification and estoppel or of an equitable lien may be sustained, the property in question is exempt from execution on any judgment entered in favor of appellee against either appellant or her husband.
Before proceeding to a final discussion of the facts or the authorities relied upon by appellee to sustain his pleas of ratification and estoppel, attention should be directed to certain statutory provisions relating to conveyances of the homestead.
The only thing assigned by appellant was her joint interest in the contract to her husband. This manifestly did not in any way affect or alter the status of the property as a homestead. The exemption thereof from execution is for the benefit of the family, and not for the husband or wife alone. Green v. Farrar & Wheeler, 53 Iowa 426, 5 N.W. 557; Harsh v. Griffin, 72 Iowa 608, 34 N.W 441. The homestead can only be conveyed by a joint instrument, signed by both the husband and the wife. This is the plain provision of the statute, which has frequently been construed and applied in the decisions of this court. Belden v. Younger, 76 Iowa 567, 41 N.W. 317; Barnett v. Mendenhall, 42 Iowa 296; Clay v. Richardson, 59 Iowa 483, 13 N.W. 644; Donner v. Redenbaugh, 61 Iowa 269, 16 N.W. 127; Clark v. Evarts, 46 Iowa 248; Alvis v. Alvis, 123 Iowa 546, 99 N.W. 166; Keeline v. Clark, 132 Iowa 360, 106 N.W. 257. Although we have held that the joint assignment of a title bond by the husband and the wife is sufficient to convey the homestead (Rubelman v. Rummel, 72 Iowa 40, 33 N.W. 354), nevertheless, under the doctrine of the above mentioned cases, the assignment of the contracts by William M. Brunsdon to appellee was wholly void. This has been specifically held with reference to similar transactions. Belden v. Younger, supra. Further, we have held that a conveyance of the homestead by the husband under a power of attorney from the wife is void ( Keeline v. Clark, supra); and that a conveyance by the husband is not validated by the act of the wife in subsequently executing a separate instrument of conveyance thereto (Alvis v. Alvis, supra); and that the oral consent of the wife to the execution of a written contract signed by the husband alone does not meet the requirements of the statute (Donner v....
To continue reading
Request your trial