Goodrich v. Brown
| Decision Date | 10 April 1884 |
| Citation | 18 N.W. 893,63 Iowa 247 |
| Parties | GOODRICH v. BROWN ET AL |
| Court | Iowa Supreme Court |
Appeal from Lee District Court.
ACTION on a promissory note and to foreclose a mortgage given to secure the same. The court rendered judgment upon the note but refused to render a decree of foreclosure of the mortgage. The plaintiff appeals.
AFFIRMED.
J. F Smith, for appellant.
Craig Collier & Craig, for appellee.
The mortgaged premises consist of lot 8 in block 130 in the city of Keokuk. At the time of the execution of the mortgage, lot 8 and the east half of lot 7, adjacent thereto, were occupied by the mortgagor, the defendant, Jeremiah Brown, and his wife, the defendant, Mary Brown, as their homestead. The mortgage was executed by Jeremiah Brown alone. Both he and his wife now resist the foreclosure of the mortgage, setting up in their answer the fact that the premises were occupied by them as their homestead. They rely upon section 1990 of the Code, which provides that "a conveyance or incumbrance by the owner is of no validity, unless the husband and wife, if the owner is married, concur in and sign the same joint instrument."
The plaintiff contends, however, that, while it is true that the husband alone cannot execute a valid mortgage upon the property constitution a homestead within the meaning of the statute as exempt from execution, yet he may change the boundaries of his homestead, and that the mortgagor in this case, having elected to execute a mortgage upon a part of the homestead premises, must be deemed to have elected to change the boundaries, and to confine the homestead to the part not mortgaged. But in our opinion this position cannot be sustained. We see nothing in the transaction, except the mere intent on the part of the mortgagor to charge lot 8 with the lien of the mortgage. If, indeed, the mortgage had been executed by both husband and wife, and its validity had been indisputable, we could not infer that they intended to waive their right to claim that the property was exempt, except as against the mortgage. Evans v. St. Paul Harvester Works, ante, p. 204.
The provision as to a change of boundaries upon which the plaintiff relies is found in section 2000 of the Code. That section provides that "the owner may from time to time change the limits of the homestead, by changing the metes and bounds, as well as the record of the plat and description, or may change it entirely." The provision as to change of metes and bounds seems to have reference to a case where a homestead has been selected and set out from a larger tract, under the provisions of section 1998. Whether, even in such a case the husband could, without the concurrence of the wife, narrow the limits of the homestead by changing the plat thereof, with the mere intent to gain the right to make a valid mortgage on the part thrown out, without leaving the amount substantially which the law allows as exempt, is, to say the least, doubtful; but we need not determine such question, because we find no intent to change the limits of the homestead.
One other question is presented, and that is, as to whether the plaintiff was not entitled to a decree of foreclosure, in the absence of any averment or proof that the one-half of lot 7 embraced in the homestead did not amount to one-half of an acre.
Section 1996 of the Code provides that, if the homestead is within a town, it must not exceed one-half acre in extent. Under this section, it is certain that the defendants cannot hold as against the plaintiff, or any other execution creditor, more than half an acre. The plaintiff has his judgment, which operates as a lien upon the premises, subject to the defendants' homestead rights, and, if the premises embrace more than half an acre, he has his speedy remedy. The officer holding an execution issued upon his judgment may, under section 1998, cause the homestead to be marked off, if the defendants...
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