Herron v. Knapp, Stout & Co.

• Decision Date: 08 October 1888
• Parties: HERRON v. KNAPP, STOUT & CO. COMPANY.
• Court: Wisconsin Supreme Court

72 Wis. 553

40 N.W. 149

HERRON

v.KNAPP, STOUT & CO. COMPANY.

Supreme Court of Wisconsin.

October 8, 1888.

Appeal from circuit court, Dunn county; E. B. BUNDY, Judge.

Action by John O. Herron against the Knapp, Stout & Co. Company under Rev. St. Wis. § 3186, relating to actions to quiet title, to establish plaintiff's claim to the undivided half of the N. E. 1/4 of the S. E. 1/4 section 24, town 27, range 13. From a judgment dismissing the action, with costs, plaintiff appeals.John Kelly, Jr., for appellant.

Hunt & Freeman, for appellee.

COLE, C. J.

The father of the plaintiff executed the mortgage in question upon his homestead in 1872. At that time the mortgagor was a married man, and the mortgage was not signed by the wife. The simple question is, was the mortgage valid? The court below held that it was, and dismissed the action. A bare reference to the statute would seem to be all that was necessary to show that the decision of the learned circuit court was erroneous. After exempting the homestead from sale upon execution, the statute, in effect, provides that such exemption shall not extend to any mortgage on the homestead lawfully obtained; but that any such mortgage, or other alienation of the homestead by the owner thereof, if a married man, shall not be valid without the signature of the wife. Section 24, c. 134, 2 Tayl. St. 1871. The statute is plain and explicit that the mortgage shall not be valid without the signature of the wife to the same. We are not at liberty to refine upon the language, and destroy the effect of the provision by construction. In the decisions which this court has made under the statute, its spirit and intent have been scrupulously and faithfully maintained. It is needless to refer to the many cases where the question has been considered in one aspect or another. In the late case of Ferguson v. Mason, 60 Wis. 377, 19 N. W. Rep. 420, which counsel on both sides have cited to sustain their respective views, Mr. Justice LYON says: “It is the settled law of this state, repeatedly recognized and enforced by the judgments of this court, that a conveyance by a married man of his homestead, containing no reservation of the homestead right, is null and void.” 60 Wis. 390, 19 N. W. Rep. 424. We are invited by respondent's counsel to reconsider this case, and qualify the doctrine laid down in it. We decline to do so while the statute remains unchanged. The meaning and proper effect of the language used leave no room for doubt as to the intention of the legislature. It would be a violation of all rules of construction to hold that a mortgage by the husband of the homestead, without the signature of the wife to the same, was valid, after the homestead right had expired. This would be pure legislation, importing into the statute important words which the legislature did not see fit to use.

Is there, then, any fact or circumstance which takes the mortgage out of the rule of the statute? We do not perceive that there is. It appears that the mortgagor had owned and occupied the land embraced in the mortgage as a homestead, from some time in 1866 continuously until his death, in 1880. In 1866 he married his second wife, who lived with him on the land until 1867, when she left the homestead and her husband, and went to live in the city of Eau Claire, where she continued to reside separate from him during his life-time. On his death she did not return and occupy the homestead, but did receive the rents thereof as his widow, until her death, in 1885. The mortgage was then foreclosed by advertisement, and a certificate of sale issued to the respondent. Now, does the fact that the wife was living apart from her husband, when the mortgage was executed, dispense with the necessity of her signature to the instrument to make it valid? We can see no reason or ground for holding that it did. The husband continued to occupy the homestead, and the marital relation also continued to...