Kneen v. Halin

• Decision Date: 09 November 1899
• Citation: 59 P. 14,6 Idaho 621
• Parties: KNEEN v. HALIN
• Court: Idaho Supreme Court

59 P. 14

6 Idaho 621

KNEEN v. HALIN

Supreme Court of Idaho

November 9, 1899

PURCHASE PRICE MORTGAGE-SIGNING BY WIFE-COMMUNITY PROPERTY. Where H made settlement upon the public domain subject to the pre-emption laws of the United States, and made pre-emption filing for the same and resided thereon, with his wife, and thereafter, while so residing thereon with his said wife, he borrowed money of K. with which to pay the government price for said land, and executed a mortgage to secure the payment of the same to K., and thereafter, on the same day, made his final proof for said land and paid the government price therefor from the money so borrowed, said mortgage is a purchase price mortgage, and is a valid lien on said land whether signed by the wife or not, and is prior to any right she may have to said land, as community property, by reason of having resided thereon at the date of the execution of said mortgage. The term "price of real property," as used in section 3336 of the Revised Statutes, is the money paid for real property or the debt created by the purchase thereof.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Reversed and remanded, with instructions. Costs of this appeal awarded to the appellant.

S. S Denning, for Appellant.

We contend that we have a purchase money mortgage, which under the common law and our statutes, is given preference over all other claims or liens on the land, even over dower, homestead or community property rights. (See Idaho Rev. Stats., sec. 3336; Smith on Homesteads and Exemptions, secs. 215, 216, 221; 4 Kent's Commentaries, 38, 39; 1 Jones on Mortgages, secs. 464, 466, 467; 28 Am. & Eng. Ency. of Law, 166-174; 19 Am. & Eng. Ency. of Law, 580, 581, and footnote 2.)

George W. Goode, for Respondents, cites no authorities upon the point decided by the court.

SULLIVAN, J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

This is an action to foreclose a mortgage on one hundred and sixty acres of land situated in Latah county. The case was submitted to the trial court upon an agreed stipulation of facts, and judgment went in favor of the defendants, who are respondents here. The appeal is from the judgment and order denying a new trial.

The stipulated facts are substantially as follows: In February, 1891, the defendants, husband and wife, resided upon the one hundred and sixty acres of land described in the complaint, upon which the husband had previously made a pre-emption filing under the laws of the United States. That on the twenty-seventh day of said month, the defendant Gustav J. Halin borrowed from the appellant $ 250, and gave his promissory note, secured by mortgage on said land. The wife did not join in either the note or mortgage. Said money was borrowed with the express agreement that it should be used in payment to the government for the purchase price of said land, and that stipulation as recited in the mortgage is as follows: "This loan is made for the purpose of paying the United States government for the within described tract of land." It is also stipulated that said defendant did make his final proof for said land, and that the money so borrowed was used in paying the government price therefor, to wit, one dollar and twenty-five cents per acre, amounting to $ 200, and that the balance of the money so borrowed was used in payment of land office expenses and witnesses' expenses incurred in making said final proof. The defense to this action is based on the grounds that the respondents, who were husband and wife, were residing upon said land at the date of the execution of said mortgage by the husband, and that the wife did not join in the execution of said mortgage. Respondents rely upon the provisions of section 2921 of the Revised Statutes, which section is as follows: "No estate in the homestead of a married person, or in any part of the community property occupied as a residence by a married person can be conveyed or encumbered by act of the party, unless both husband and wife join in the execution of the instrument by which it is so conveyed or encumbered, and it be acknowledged by the wife as provided in chapter 3 of this title." It is contended that said one hundred and sixty acres of land was community property. If it was community property at the date said mortgage was executed, the mortgage created no lien on the land.

The first question to be determined, then, is, Was said real estate community property at the date of the execution of said mortgage? It is admitted, that respondents were residing on said land when said mortgage was...