Minn. Stoneware Co. v. McCrossen

• Decision Date: 30 April 1901
• Parties: MINNESOTA STONEWARE CO. ET AL. v. MCCROSSEN ET AL.
• Court: Wisconsin Supreme Court

110 Wis. 316

85 N.W. 1019

MINNESOTA STONEWARE CO. ET AL.

v.MCCROSSEN ET AL.

Supreme Court of Wisconsin.

April 30, 1901.

Appeal from circuit court, Marathon county; Charles M. Webb, Judge.

Action by the Minnesota Stoneware Company and others against J. A. McCrossen and another. From a judgment for defendants, plaintiffs appeal. Modified.

Action by judgment creditors of J. A. McCrossen to reach real estate claimed by him as his homestead, James McCrossen being joined as mortgagee. The complaint was to the effect that the real estate described, located in the city of Wausau, Wis., was J. A. McCrossen's homestead when the mortgage thereon, owned by James McCrossen and particularly described, was given; that such real estate subsequently ceased to be the homestead of the mortgagor, by reason whereof plaintiffs' judgments, which were particularly described, attached thereto as liens; that the mortgage was void because it was not signed by the mortgagor's wife.

The answer put in issue the allegations of the complaint as to the real estate ceasing to be a homestead and the mortgage not being signed by Mrs. McCrossen; and it was therein alleged that she, for the purpose of empowering her husband to borrow money on the homestead to invest in a business for her, on February 12, 1894, gave to him a power of attorney in writing, authorizing him as follows: “In my name, place and stead to sell and convey any real estate and personal property which I may now own or may hereafter acquire in the states of Wisconsin and Washington;” that under such authority, and at the express request of Mrs. McCrossen, her husband, defendant J. A. McCrossen, borrowed $2,500 of the Stuart Lumber Company and secured the payment thereof by the mortgage in controversy, all parties in the transaction, including Mrs. McCrossen, believing that the power of attorney was broad enough to authorize Mr. McCrossen to sign his wife's name to the instrument with the same force and effect as if she signed it by her own hand; that the money was actually invested in business for Mrs. McCrossen, and that the mortgage was thereafter, for value, assigned to defendant James McCrossen.

The facts stated in a general way were set up in the answer as a counterclaim, and affirmative relief was prayed for. The court found the facts requisite to plaintiffs' right to challenge the validity of the mortgage and of J. A. McCrossen's right to hold the realty as a homestead, and decided that such right existed when the mortgage was executed; that it was executed substantially under the circumstances stated in the answer and for the purpose therein alleged, i. e., to obtain money with which to start a business in the name of and for the benefit of Mrs. McCrossen; that such purpose was fully carried out; that before the commencement of the action James McCrossen became the owner of the note and mortgage; that on May 1, 1894, J. A. McCrossen, with his wife and family, temporarily removed from the homestead to engage in business and live in the state of Washington, Mrs. McCrossen disposing of her business in Wausau in order to use the proceeds in the new venture; that the temporary removal was for the benefit of Mrs. McCrossen's health; that the McCrossens did not, at the time of such removal, or at any time thereafter, intend to abandon their Wausau homestead, but on the contrary that they proposed at all times to return and occupy it, the particular time being uncertain, till after the death of Mrs. McCrossen; that she died at Everett in the state of Washington in April, 1895, when and where she had an interest in a store in which her husband was a clerk; that after her death he ceased to work in the store, but did not withdraw the interest of his wife's estate therein; that he attended to some business in the state of Washington subsequent to his wife's death, including the operation for a few months of a small shingle mill, and that in the fall of 1897 he returned to Wausau to reside, leaving his children at Everett till the close of the term of school, when they also returned to Wausau to reside with their father; that the homestead was not occupied by him after such return and before the trial because he had not perfected his arrangements to commence housekeeping; that his purpose was to reoccupy the homestead with his family at the expiration of an existing lease thereof; that he did not acquire a homestead while in the state of Washington, but that he voted in such state three times, once at a national election and twice at municipal elections.

On such facts the court decided that at the time of the rendition of plaintiffs' judgments the realty was, and up to the time of the trial continued to be, the homestead of J. A. McCrossen; that such judgments never became a lien thereon; that the mortgage was valid as to the parties thereto, including Mrs. McCrossen, and as to the creditors of J. A. McCrossen; that the latter was entitled to a judgment dismissing the action with costs, and that James McCrossen was entitled to a like judgment for costs and a judgment establishing the validity of the mortgage against J. A. McCrossen and plaintiffs. Judgment was rendered accordingly.Brown, Pradt & Genrich, for appellants.

Ryan, Hurley & Jones, for respondents.

MARSHALL, J. (after stating the facts).

The question of the validity of the mortgage involves three questions: (1) Can the homestead of a married man be alienated without the signature of his wife being affixed to the instrument of conveyance by her own hand with intent to cause such alienation? (2) Does a power to sell and convey real estate include power to mortgage the same? (3) Does a conveyance of the homestead of a married man, executed by him, with the wife's signature affixed thereto by her verbal request, for the purpose of obtaining money for her use, together with a full execution of such purpose, operate by estoppel to alienate such homestead?

As we view the last two propositions the first need not be considered. If the power of attorney to sell and convey did not authorize the act of J. A. McCrossen in signing his wife's name to the mortgage, and the circumstances under which the transaction occurred are not sufficient to render such signing equivalent to the personal signature of Mrs. McCrossen by estoppel, it is immaterial whether such personal signature was necessary or not.

The power of attorney was a mere power to sell and convey, importing authority to sell out and out for cash and not power to mortgage. That is elementary. Jones, Mortg. § 129; Devl. Deeds, § 363a; Morris v. Watson, 15 Minn. 212 (Gil. 165); Colesbury v. Dart, 61 Ga. 620; Wood v. Goodridge, 6 Cush. (Mass.) 117; Hoyt v. Jaques, 129 Mass. 286; Perry, Trusts, § 768. No departure from such general rule, worthy of consideration, we venture to say, can be found. There is a contrary line of decisions in the state of Pennsylvania, commencing with Lancaster v. Dolan, 1 Rawle, 231, decided in 1829, and based on an overruled English case. The initial decision, though recognized as wrong tested by the generally accepted doctrine on the subject, was followed in that state until, as we understand by what is said in...