Edwards v. Simms

• Decision Date: 20 March 1903
• Docket Number: Civil 809
• Citation: 71 P. 902,8 Ariz. 261
• Parties: ARTHUR J. EDWARDS, Administrator of the Estate of Edward P. Hayden, Deceased, Plaintiff and Appellant, v. CHARLES F. SIMMS et al., Defendants and Appellees
• Court: Arizona Supreme Court

71 P. 902

8 Ariz. 261

ARTHUR J. EDWARDS, Administrator of the Estate of Edward P. Hayden, Deceased, Plaintiff and Appellant, v. CHARLES F. SIMMS et al., Defendants and Appellees

Civil No. 809

Supreme Court of Arizona

March 20, 1903

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Edward Kent Judge. Affirmed.

The facts are stated in the opinion.

Joseph H. Kibbey, for Appellant.

Baker &amp Bennett, for Appellee.

The wife cannot sell or convey her interest in the homestead to the husband. Welsh v. Rice, 31 Tex. 689, 98 Am. Dec 556; Kitterlin v. Milwaukee etc. Ins. Co., 134 Ill 647, 25 N.E. 772, 10 L.R.A. 220; Anderson v. Smith, 159 Ill. 93, 42 N.E. 306; Flege v. Garvey, 47 Cal. 372; Freirmuth v. Steigleman, 130 Cal. 392, 80 Am. St. Rep. 138, 62 P. 615.

The deed in question is not acknowledged in the manner required by the statute then and now in force regarding acknowledgments by married women of instruments conveying the homestead, in this, that the certificate of acknowledgment does not show that she was examined separate and apart from her husband. Rev. Stats. 1887, pars. 226, 2581.

This defect in the acknowledgment is fatal to the effect of the instrument as a conveyance of the homestead. Pease v. Barbiers, 10 Cal. 437; Landers v. Bolton, 26 Cal. 393; Ewald v. Corbett, 32 Cal. 493; Flege v. Garvey, 47 Cal. 371; Leonis v. Lazzarovich, 55 Cal. 52; Looney v. Adamson, 48 Tex. 619; Berry v. Donley, 26 Tex. 745; Rice v. Peacock, 37 Tex. 392; Sibley v. Johnson, 1 Mich. 380.

Separate conveyances by husband and wife of the homestead are void. Hart v. Church, 126 Cal. 471, 77 Am. St. Rep. 195, 58 P. 910; Flege v. Garvey, 47 Cal. 371.

OPINION

SLOAN, J.

-- Arthur J. Edwards, as administrator of the estate of Edward P. Hayden, deceased, brought suit against Charles F. Simms and George T. Brosius, as executors of the last will and testament of James T. Simms, deceased, Hanna T. Simms, the Simms Improvement Company, and others, to foreclose a mortgage given by James T. Simms in his lifetime to secure a note for three thousand dollars on property described as lots 1, 7, 9, 11, 13, 15, 17, 18, 19, 20, and 21 in block numbered 1 in Simms' Addition to the city of Phoenix. The court below found the mortgage to be null and void, and entered a personal judgment against the executors of the estate of James T. Simms, deceased, for the amount of the note, with interest thereon. Edwards, as the administrator of the estate of Hayden, deceased, has appealed from this judgment.

The answer of the defendant Hanna T. Simms averred that James T. Simms died on or about September 20, 1898, and that she was his surviving wife; that the premises mortgaged were acquired during the marriage between said James T. Simms and herself; that on the first day of November, 1887, and again on the twelfth day of October, 1888, the said James T. Simms filed declarations of homestead, covering the premises mortgaged; that subsequently, on the thirtieth day of December, 1893, she, as the wife of the said James T. Simms, made her declaration of homestead on the same premises, and the same had never been released, relinquished, sold, granted, conveyed, or abandoned by the said James T. Simms or by herself. The trial court found the mortgage to be null and void for the reason that at the time the same was given the premises were the community property of James T. Simms and Hanna T. Simms, his wife, and covered by the declaration of homestead made by the latter.

From that part of the judgment declaring said mortgage null and void, Edwards, as the administrator of the estate of Hayden deceased, brings this appeal. The appellant complains of the court's ruling in sustaining defendants' objection to the introduction of a certain deed purporting to be a release executed by Hanna T. Simms to her husband, James T. Simms, prior to the execution of the mortgage and her declaration of homestead, "of all her right, title, and interest or estate, either real, contingent or expectant, and of every nature and description whatsoever, in and to the property which her husband, James T. Simms, owned or possessed, or which he may hereafter acquire during his lifetime," etc. The bill of exceptions in this case does not contain a copy of this deed, nor does it set forth its contents, nor does it anywhere appear in the record. In the abstract filed, the appellant recites the granting clause of the...