Godfrey v. Thornton
| Decision Date | 24 May 1879 |
| Citation | 1 N.W. 362,46 Wis. 677 |
| Parties | GODFREY v. THORNTON and others |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Manitowoc County.
Foreclosure of a mortgage. The defendants John H. Thornton and Ellen Thornton, his wife, and Thomas Windiate and Cornelia Windiate, his wife, answered that the premises covered by the mortgage were at the time the instrument was made, and still were, the homestead of said John H. and Ellen Thornton, the alleged mortgagors; that the persons who subscribed the mortgage as witnesses were not present at the signing of the mortgage by the alleged mortgagors; that they never signed as witnesses at the request of said Ellen Thornton, and she never knew that they signed as such witnesses; and that said Ellen Thornton never acknowledged the execution of said mortgage by her, before any officer entitled to take such acknowledgment. The answer of John H. Thornton further alleged, that in October, 1875 (subsequent to the execution of the mortgage), he was adjudicated a bankrupt in the proper federal court; that the name of the present plaintiff was duly inserted in the list of creditors in said bankruptcy proceeding, and his claim under the note and mortgage here in suit was duly scheduled, and he was duly notified of the proceeding; and that in January, 1876, said John H. Thornton perfected a composition with all his creditors under the then existing bankrupt laws of the United States, which was ratified by decree of the court, and the said Thornton released from such proceedings and discharged from all his debts and obligations, and his property restored to him subject only to liens existing thereon at the time of the filing of the petition in bankruptcy. It appears also from the pleadings, that, at a date subsequent to that of the mortgage in suit, Thomas Windiate took a quit-claim deed of the premises from John H. and Ellen Thornton, and executed to them at the same time a contract to reconvey on payment of certain sums there named.
The findings of the court were in accordance with the answers as above stated; and judgment was rendered thereupon in favor of the defendants, declaring the mortgage void, and dismissing the complaint. Plaintiff appealed from the judgment.
Judgment reversed and cause remanded.
For the appellant, there was a brief by H. G. & W. J. Turner, and oral argument by Wm. F. Vilas. They contended, among other things, 1. That the statute (sec. 52, ch. 49, R. S. 1849; sec. 24, ch. 134, R. S. 1858) required only the signature of the wife, and not attestation or acknowledgment thereof, to give validity to a mortgage of the homestead. This is the view taken in all the cases in this court except one. Phelps v. Rooney, 9 Wis. 70; Platto v Cady, 12 id., 461; Green v. Lyndes, id., 404; McCabe v. Mazzuchelli, 13 id., 478; Spencer v Fredendall, 15 id., 666; Riehl v. Bingenheimer, 28 id., 87; Barker v. Dayton, id., 367; West v Ward, 26 id., 579. In Hait v. Houle, 19 Wis 472, the evidence showed that Mrs. Houle did not sign the mortgage, or that her signature was obtained by fraud. The chief justice discusses the evidence at some length, and comes to the conclusion that Mrs. Houle did not acknowledge the mortgage, and that therefore it was wholly inoperative as to her. It seems to have been unnecessary to pass upon her failure to acknowledge the instrument, since it appears that she did not execute it. Under a similar statute in Minnesota, it is held that the signature of the wife is sufficient. Lawver v. Slingerland, 11 Minn., 447. Moreover, in this state, the witnessing and acknowledging of a conveyance are necessary only for the purpose of entitling it to record; and the statute provides for either proof or acknowledgment in the case of a married woman joining with her husband in the conveyance of her property, as well as in other cases. R. S. 1858, ch. 86, secs. 1, 12, 17 et seq.; McPherson v. Featherstone, 37 Wis. 632; Gilbert v. Jess, 31 id., 110; McMahon v. McGraw, 26 id., 614; Quinney v. Denney, 18 id., 486; Myrick, v. McMillan, 13 id., 188. 2. That the bankruptcy proceedings did not operate as a satisfaction of the indebtedness secured by the mortgage. Plaintiff's claim was scheduled by the bankrupt as a secured claim; it is not suggested in any of the bankruptcy proceedings that plaintiff took any part therein, proved his claim, or even had notice of the proceedings; his name is not among the names of those who accepted the compromise; the order ratifying the compromise restores to the bankrupt his property, subject to all liens existing thereon at the time of filing his petition; and the premises in suit, as the bankrupt's homestead, were not affected by the proceedings. After the institution of those proceedings, plaintiff had three remedies: he might rely upon the security; he might abandon it, and prove his whole debt; he might be admitted as a creditor only for the balance remaining after deducting the value of the security. Bump on Bankruptcy, 8th ed., 615-17. His claim was not due at the time of the filing of the petition, and he elected to rely upon the security.
For the respondent, there was a brief by Nash & Schmitz, and oral argument by S. U. Pinney. They contended that the absence of attestation or acknowledgment of the wife's signature rendered the mortgage void. While at common law a deed was not invalid for lack of attestation, and while, under the Territorial Statutes of 1839, which merely provided that a deed attested and acknowledged should "be good," etc., neither attestation nor acknowledgment was held necessary to the validity of the deed (13 Wis. 188; 18 id 485; 26 id., 614; 31 id., 10), yet these decisions related solely to that statute. McPherson v. Featherstone, 37 Wis. 632. Sec. 8, ch. 86, R. S. 1858, however, provided that "deeds executed within this state, of lands or any interest in lands therein, shall be executed in the presence of two witnesses, who shall subscribe their names to the same as such," etc. This statute (which has been ever since in force, and is substantially embodied in sec. 2216, R. S. 1878) is peremptory and mandatory; and its object is to prescribe a safer mode of conveying land than those previously in use. Daerflinger v. Hilmantel, 21 Wis. 566; Wendel v. Durbin, 26 id., 390; District Township v. Dubuque, 7 Iowa, 284; Webster v. French, 12 Ill., 302; McCune v. Weller, 11 Cal., 54; Dryfus v. Bridges, 45 Miss., 247; Norwegian Street, 81 Pa. St., 349; Hob., 298; Sid., 56; Stra., 1125; 2 Term, 395; Rex v. Loxdale, 1 Burr., 447. The effect of the wife's failure to acknowledge a mortgage of the homestead is expressly adjudicated in Martin v. Dwelly, 6 Wend., 9, and Carr v. Williams, 10 Ohio, 305; and also in this state in Hait v. Houle, 19 Wis. 472. The defense in the last named case was fraud and undue influence in procuring the wife's signature to the mortgage, as well as the fact that she never acknowledged it. Although the question of fraud and undue influence was ably and eloquently presented to the court by the wife's counsel, the court chose rather to reverse the judgment on the ground that the mortgage was not acknowledged by her. That decision has stood unquestioned for fourteen years. The extent of the wife's rights in respect to the homestead was then comparatively a new subject, and this court was at liberty to place such a construction upon the statute (which was a remedial one) as sound policy dictated, or as appeared most likely to effect the beneficent object of the law. After the law has been thus expressly determined, and has remained settled so long, the decision ought not to be disturbed. Ram on Leg. Judg., 200-212. The rule then adopted is clearly calculated to protect the wife in the enjoyment of her homestead, and preserve her against any but a voluntary alienation. The safeguards of attesting witnesses and a public acknowledgment are requisite to secure her from violence, undue influence, and deception. It would be difficult to suggest reasons of equal importance for now changing the construction of the statute. Eyster v. Hatheway, 50 Ill., 521; Armstrong v. Ross, 20 N. J. Eq., 109; Ford v. Teal, 7 Bush, 156; Fisher v. Meister, 24 Mich., 447; Laird v. Scott, 5 Heisk., 314. It has long been the law of this state that when a married woman joins in her husband's deed in order to bar her right of dower, her execution of it must be duly acknowledged (sec. 13, ch. 86, R. S. 1858); but with the vast majority of people the homestead is the entire real estate of the family, and it can hardly be seriously argued that the legislature has taken greater care of dower than of homestead rights. The wife's homestead rights are similar in kind to her dower rights, but are greater in degree and more valuable, because they are present and actual instead of future and contingent. Statutes concerning alienation of homesteads and those relating to the barring of dower, being in pari materia, should receive a similar construction. The question here is entirely apart from the question what would be a sufficient deed if the wife were conveying her separate property. Fisher v. Meister, 24 Mich., 447. A decisive consideration in this case seems to be, that the statute requiring the wife's signature to an instrument for the alienation of a homestead, after it had been construed in Hait v. Houle, was substantially reenacted in sec. 2203, R. S. 1878. This was a legislative approval and adoption of that construction. Ex parte Matthews, 52 Ala., 51; O'Byrnes v. The State, 51 id., 25; Cota v. Ross, 66 Me., 161. In fact, when the revisers of 1878 reported to the legislature sec. 2203, they appended thereto as an explanatory note a reference to Hait v. Houle--a clear proof that the legislature approved and adopted the doctrine of that case in...
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