Gordon v. Deavitt

• Decision Date: 25 November 1910
• Citation: 78 A. 113,84 Vt. 59
• Parties: GORDON et al. v. DEAVITT et al.
• Court: Vermont Supreme Court

78 A. 113

84 Vt. 59

GORDON et al.

v. DEAVITT et al.

Supreme Court of Vermont. Washington.

Nov. 25, 1910.

Rowell, C. J., and Watson, J., dissenting.

Appeal in Chancery, Washington County; Willard W. Miles, Chancellor.

Bill by Hattie M. Gordon and another against Thomas J. Deavitt and others. Decree for orators, and defendants appeal. Modified, affirmed, and remanded, with directions.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

T. J. Deavitt and Edward H. Deavitt, for appellants.

R. M. Harvey and John W. Gordon, for appellees.

MUNSON, J. T. R. Gordon and his wife, the oratrix Hattie, executed to the Capital Savings Bank & Trust Company, to secure notes of the said T. R., a mortgage of certain premises owned by the said T. R. and occupied as a homestead. T. R. Gordon afterwards gave three other mortgages of the premises to different parties, signed only by himself, in the first two of which the homestead was excepted. The defendant Deavitt became the assignee of the first of these three mortgages, and brought a foreclosure suit thereon, making T. R. Gordon and the holders of the two later mortgages parties defendant, and obtained a decree which became absolute. After this the bank obtained a decree on its mortgage, foreclosing T. R. Gordon, the oratrix Hattie, and the defendant Deavitt. The oratrix Hattie paid the amount of this decree within the time limited for redemption, and now claims to be subrogated to all the rights of the bank. The defendant contends that the payment by the wife extinguished the Bank indebtedness; and claims, further, that, if the payment did not have this effect, it merely entitled the wife to a contribution from the other parties benefited thereby.

The homestead of a housekeeper or head of a family consists of a dwelling house, outbuildings, and land used in connection therewith, not exceeding $500 in value, and used or kept by such housekeeper or head of a family as a homestead. V. S. 2179; P. S. 2544. The statute provides that no homestead nor interest therein shall be conveyed by the owner, if a married man, except by way of mortgage for the purchase money, unless his wife joins in the execution and acknowledgment of the conveyance; but that a conveyance thereof or of an interest therein not so made and acknowledged shall be inoperative so far only as relates to the homestead. V. S. 2189; P. S. 2553. It is provided, further, that, when such homestead or lands included therein are mortgaged by the joint deed of husband and wife, the joining of the wife in such mortgage shall have no other effect than to bar her claim to the homestead as against such mortgage, and that if such mortgage includes lands other than the homestead, and the owner thereof dies, such other lands shall be first sold by the executor or administrator and applied on the mortgage, and the residue only rest on the homestead. V. S. 2191; P. S. 2555.

The history and original form of some of these provisions may have a bearing upon the question at issue. In the first homestead act (No. 20, Acts of 1849) the provision regarding alienation, apart from an exception as to purchase money, was as follows: "Such homestead shall not be alienated or mortgaged by the owner thereof, if a married man, except by the joint deed of such husband and wife. * * *" By No. 18, Acts of 1858, it was provided that the above section should be so construed that if the homestead, or any lands including the homestead, belonging to a married man, had been or should be mortgaged by the joint deed of husband and wife, the joining therein by the wife should have "no other effect than to bar her right or claim to such homestead as against said mortgage." By No. 36, Acts of 1860, it was enacted that whenever any deed, mortgage, lease, or conveyance of the homestead, except mortgages for the purchase money, should be executed by the owner thereof, if a married man, without his wife joining therein, such deed, mortgage, lease, or conveyance should be "wholly inoperative to convey any right, title or interest in such homestead," and that the rights of the parties, and of all persons claiming under them or either of them, should "be and remain the same as if no such deed had been executed." This provision was condensed in the revision of 1863, but without changing its substance. Gen. St. c. 68, § 10. The provision restricting the effect of the wife's execution of a mortgage was omitted from that revision, but it was re-enacted by No. 17, Acts of 1865, in terms identical with the act of 1858. Since then the provision declaring the husband's sole deed of the homestead to be wholly inoperative, and that restricting the effect of the wife's joining in the mortgage, have both been retained; and they are now included in P. S. 2553 and 2555, as before stated. In Abell v. Lothrop, 47 Vt. 375, decided in 1875, it was said of the section regarding alienation that "no more explicit language could be used to negative the right of the husband to convey either his own or his family's interest in the homestead ;" and it was accordingly held that a deed signed by the husband alone is absolutely void as regards the homestead, and leaves the title to it as if no deed had been executed. This decision was questioned in Whiteman v. Field, 53 Vt. 554, but the doctrine of the earlier case was reasserted in Martin v. Harrington, 73 Vt. 193, 50 Atl. 1074, 87 Am. St. Rep. 704, and again in Davis v. Davis, 81 Vt. 259, 69 Atl. 876, 130 Am. St. Rep. 1035.

The statutes relating to the levying of executions on property which includes a homestead must be referred to because of their connection with a case relied upon by the defendant. The homestead right is exempt from attachment and execution except upon causes of action existing at the time of acquiring it. Acts 1849. No. 20, §§ 1, 6; P. S. 2544, 2550. In levying an execution upon premises in which there is a homestead, the homestead is to be set out in the manner prescribed, and levy made upon the residue of the premises as in other cases. Acts 1849, No. 20, § 2; P. S. 2545. It was enacted further by Gen. St. c. 68, § 3, that, if such premises were incumbered by a mortgage, the homestead should be set out as before provided, and that the levy should then proceed as in the case of mortgages existing upon distinct parcels of land. In Lamb v. Mason, 50 Vt 345, a levying creditor, whose claim was not enforceable against the homestead, paid a mortgage which covered the homestead to save his rights under the levy; and it was held by a divided court that he became subrogated to the rights of the mortgagee, and could charge the homestead with the payment of its proportion of the mortgage debt. Subsequent to this decision, by No. 74, Acts of 1888, the section last above stated was amended by adding to it the following: "Provided, however, in making such levy only such portion of the mortgage as is in excess of the appraised value of the real estate, aside from the homestead, shall rest on said homestead." P. S. 2546. The force of the above decision as authority for a ratable apportionment of the incumbrance at the instance of an attaching creditor who has become assignee of the mortgage was taken away by this change in the statute. The express restriction of the amendment seems inconsistent with the application of any principle of equity which would increase the burden of the homestead in aid of a creditor whose claim has not been charged upon it in accordance with the statute. Moreover, this court has said that, when equity requires it, the court may deny to the assignee of a mortgage a right which the mortgagee himself could have asserted. Bailey v. Warner, 28 Vt. 87.

The question here is whether the holder of a subsequent incumbrance which did not cover the homestead can reach the homestead interest through the wife's redemption of the premises from a mortgage which covered the homestead; and this must be determined upon a consideration of the statute as a whole. The homestead is an estate or interest created by statute in the property of the husband for the protection of the family. It cannot be conveyed by the husband, "the owner thereof," unless the wife joins in the execution and acknowledgment of the deed. It can be charged with the payment of the husband's indebtedness only by a conveyance so executed The wife is thus invested with the right to bar the husband from selling or incumbering. Her interest springs from the husband's title, but is adverse to his right of transfer. The joint deed, as to her, is not a conveyance of the title, but a mere release or waiver. In the case of a mortgage her concurrence in the execution is no more than a legal and binding consent to the incumbrance. She retains her entire homestead interest subject to that incumbrance, and that interest is paramount to any lien which the husband can place upon the property. Davis v. Davis, 81 Vt. 259, 69 Atl. 870, 130 Am. St. Rep. 1035. In view of these considerations, it cannot be said that Mrs. Gordon's payment of the bank decree was a payment in the interest of her husband, and therefore a payment which extinguished the indebtedness.

But the defendant insists that, if the bank indebtedness is to be kept on foot, the oratrix cannot foreclose against the later incumbrances without subjecting the homestead to a ratable contribution. The right of contribution among persons holding interests in lands affected by a mortgage exists when their relations to one another are such that the one paying pays for the benefit of all. If one pays to protect his own interest, and that interest is independent of and superior to those of the others, the doctrine of contribution has no application. The right depends not merely upon the fact of a common subordination to the indebtedness paid, but upon the relations which the holders of the subordinate interests sustain among themselves. Both points must be considered in determining...