Luhrs v. Hancock

• Decision Date: 02 June 1899
• Docket Number: Civil 669
• Parties: GEORGE H. N. LUHRS, Plaintiff and Appellant, v. WILLIAM A. HANCOCK et al., Defendants and Appellees
• Court: Arizona Supreme Court

57 P. 605

6 Ariz. 340

GEORGE H. N. LUHRS, Plaintiff and Appellant, v. WILLIAM A. HANCOCK et al., Defendants and Appellees

Civil No. 669

Supreme Court of Arizona

June 2, 1899

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street Judge. Affirmed.

The facts are stated in the opinion.

Hamilton & Armstrong, for Appellant.

C. F Ainsworth, for Appellees.

"Property exempt from execution is not subject to any claim of the creditor, but is absolutely free from all claims of creditors. No execution or other writ is a lien upon it. The creditor has no claim upon it in any form, and it is impossible to conceive any logical ground upon which property not subject to the claims of creditors can be held to have been fraudulently conveyed." Blair v. Smith, 114 Ind. 114, 5 Am. St. Rep. 593, 15 N.E. 817; Riggs v Sterling, 60 Mich. 643, 1 Am. St. Rep. 554, 27 N.W. 705; Hickson v. George, 18 Kan. 253; Monroe v May, 9 Kan. 476; Dreutzer v. Bell, 11 Wis. 114; Pike v. Miles, 23 Wis. 164, 99 Am. Dec. 148, and note; Cipperly v. Rhodes, 53 Ill. 346; Taylor v. Deusterberg, 109 Ind. 165, 9 N.E. 907.

"A conveyance of a homestead cannot be in fraud of creditors." Patnode v. Darvau, 112 Mich. 127, 71 N.W. 1095. See, also, Bank of Commerce v. Fowler, 93 Wis. 241, 67 N.W. 423; Pike v. Miles, 23 Wis. 164, 99 Am. Dec. 148, and note; Hibben v. Soyer, 33 Wis. 319; Thompson v. Crane, 73 F. 327; Mundt v. Hagedorn, 49 Neb. 409, 68 N.W. 610; Munson v. Carter, 40 Neb. 417, 58 N.W. 931; Merchants' Nat. Bank of Kansas City v. Kopplin, 1 Kan. App. 599, 42 P. 263.

Exempt property may be transferred by the owner, even as a gift to his wife, free from any claims of his creditors. Bailey v. Littell, 34 Nev. 294, 53 P. 308; Waugh v. Bridgeford, 69 Iowa 334, 28 N.W. 626; Robb v. Brewer, 60 Iowa 539, 15 N.W. 420.

A conveyance by the husband to the wife of the homestead is valid though the wife does not join in the deed, notwithstanding that the statutes provide that all deeds must be executed by both husband and wife. Burkett v. Burkett, 78 Cal. 310, 12 Am. St. Rep. 58, 20 P. 715; Stevens v. Castel, 63 Mich. 111, 29 N.W. 828; Lynch v. Doran, 95 Mich. 395, 54 N.W. 882; Harsh v. Griffin, 72 Iowa 608, 34 N.W. 441; Riehl v. Bingenheiner, 28 Wis. 84.

OPINION

DAVIS, J.

-- This was an action by the appellant to recover the possession of five certain lots in the city of Phoenix, and for the value of the rents and profits thereof. The complaint is in the usual form in ejectment cases. The defendants William A. Hancock and Lilly B. Hancock, husband and wife, answered, pleading "Not guilty," and setting up the statute of limitations in bar of plaintiff's right to recovery. Similar defenses were interposed by the defendant Thomas W. Pemberton, who, by way of cross-complaint, also pleaded his ownership and possession of said premises, and asked for affirmative relief as against the adverse claims of the plaintiff. Upon the trial in the court below, the plaintiff was adjudged to have no right, title, or interest in said property, and the defendant Pemberton was adjudged to be the owner and entitled to the possession thereof. From this judgment of the district court the plaintiff prosecutes an appeal.

The record shows the material facts in the case to be substantially as follows: On February 27, 1886, the legal title to the premises in controversy was vested in William A. Hancock, the common source from which both the plaintiff and the defendant Pemberton deraign title. The said premises were inclosed as one tract, with a dwelling-house situated upon lots 14 and 15, and had been occupied by the defendants William A. Hancock and Lilly B. Hancock as a homestead ever since 1873. On the said twenty-seventh day of February, 1886, and while the said premises were so occupied and claimed as a homestead, the said William A. Hancock, for the consideration of love and affection, deeded the same by a direct conveyance to his said wife, Lilly B. Hancock. The value of the said property so conveyed did not at that time exceed the sum of four thousand dollars. On March 5, 1892, certain creditors (Herrick & Luhrs) obtained a judgment in the district court of Maricopa County against the said William A. Hancock for the sum of $2,524.02, upon an indebtedness contracted by him November 1, 1883. An execution was issued upon said judgment April 5, 1892, and the same was levied upon the premises here in controversy, as the property of William A. Hancock. No proceeding was had to set aside the anterior conveyance to his wife, but the said real estate was formally sold under said execution to the plaintiff, George H. N. Luhrs, to whom a sheriff's deed was made on February 4, 1893, conveying the title which is the basis of his ejectment suit. On March 21, 1892, the said Lilly B. Hancock and William A. Hancock had borrowed from one Robert Allstatter the sum of twenty-six hundred dollars, and on the same day, to secure the payment thereof, had executed to the said Allstatter a mortgage upon all of the aforesaid premises. This mortgage, presumably executed in good faith, was subsequently foreclosed, and the defendant Thomas W. Pemberton became the purchaser at the foreclosure sale. He received the sheriff's deed for the said premises on February 14, 1895, took possession thereof from the Hancocks, and has since paid the taxes and made valuable improvements upon the property. The plaintiff, Luhrs, was never in the possession of the premises.

Several propositions of error are assigned, but, as we view it, the case turns wholly upon the question of the validity and effect of the deed of William A. Hancock to Lilly B. Hancock, executed February 27, 1886. If by that conveyance there was effected a transfer of the legal title to this real estate, then the appellant, claiming solely under an execution sale upon a judgment against William A. Hancock, must fail. Hence it is essential to a reversal that the appellant establish the invalidity of this conveyance. He attempts to do so, and upon three different grounds.

It is first insisted that the deed from Hancock to his wife was ineffectual to pass title to the homestead, because it was not signed and acknowledged by the wife, and therefore not in compliance with the statute in force at the time (Comp. Laws, par. 2141), which prescribed that "no mortgage, sale or alienation of any kind whatever of such land [homestead] by the owner thereof, if a married man, shall be valid without the signature of the wife to the same, acknowledged by her separately and apart from her husband." The policy of statutes which restrain the alienation of the homestead without the wife joining in the deed is to protect the wife, and to enable her to protect the family, in the possession and enjoyment of a homestead, after one has been acquired by the husband. They are not intended to interpose obstacles in the way of a conveyance of the homestead to the wife, or to the wife and children, with the consent and approval of the wife, whatever may be the form of such conveyance. Thompson on Homesteads and Executions, sec. 473. Under statutes similar to this of Arizona, it has been held that a conveyance of the homestead to the wife by the husband is not within the meaning of the statute, and is valid, although the wife does not join. Lynch v. Doran, 95 Mich. 395, 54 N.W. 882; Harsh v. Griffin, 72 Iowa 608, 34 N.W. 441; Burkett v. Burkett, 78 Cal. 310, 12 Am. St. Rep. 58, 20 P. 715; Furrow v. Athey, 21 Neb. 671, 59 Am. Rep. 867, 33 N.W. 208; Albright v. Albright, 70 Wis. 528, 36 N.W. 254. We adopt this construction as the true meaning and spirit of the law, in preference to the more rigid and literal interpretation adhered to in the Illinois cases cited by counsel for the appellant. It would be a foolish and senseless act for the wife to join in a conveyance to herself, and we cannot think the statute contemplates any such absurd requirement. The deed to Mrs. Hancock from her husband was clearly not in derogation of her homestead rights, nor could it impair or affect the homestead, since the joint act of both would still be required for its alienation or encumbrance to a third person. Comp. Laws, par. 1972.

Again it is urged that by act No. 68, Sessions Laws 1885, the common law was in force in this territory when the conveyance was made, and that at common law a deed between husband and wife was void. The enactment relied upon to support this proposition is as...