Powers v. Pense

• Decision Date: 24 May 1912
• Docket Number: 684
• Citation: 123 P. 925,20 Wyo. 327
• Parties: POWERS v. PENSE ET AL
• Court: Wyoming Supreme Court

123 P. 925

20 Wyo. 327

POWERS v. PENSE ET AL

No. 684

Supreme Court of Wyoming

May 24, 1912

ERROR to the District Court, Sheridan County; HON. CARROLL H PARMELEE, Judge.

The action was brought by Lillie Powers against John W. Pense and J. D. Powers for the purpose of quieting the title of the plaintiff to certain premises claimed by her as a homestead. Judgment was rendered for the defendants and the plaintiff prosecuted error. The material facts are stated in the opinion.

Judgment affirmed.

Burgess & Kutcher (Camplin & O'Marr of counsel), for plaintiff in error.

The second mortgage did not operate to convey or release the homestead right, there being no recital therein that both the husband and wife released or waived the right of homestead as required by section 3662, Compiled Statutes, 1910, nor did the certificate of acknowledgment contain any such clause. By the constitutional provision such clause was necessary to render the mortgage a valid lien against the homestead. (Const., Art. 19, Sec. 1; Brewster v. Madden, 15 Kan. 249; Hart v. Sanderson, 18 Fla. 103; U. S Sav. F. Co. v. Harris, 40 N.E. 1072.) The consent of either husband or wife alone to the alienation of the homestead is of no effect. (Jones v. Losekamp, 114 P. 675; Leonard v. Crane, (Ill.) 35 N.E. 474; Ogden B. & L. Ass'n. v. Mensch, (Ill.) 63 N.E. 1050). Upon the findings of fact the second mortgage was not an obligation contracted for the purchase of the premises, within the purview of section 1, Art. 19 of the Constitution, and in concluding that it was such an obligation the district court erred. Said mortgage was not an extension or renewal of the original purchase-money mortgage, for the indebtedness which it secured had been paid to the mortgagee and the mortgage itself had been released and discharged by foreclosure proceedings. Had it been a renewal or extension the liability would have been continuous. It was not a mortgage given for the purpose of paying off the purchase-money mortgage, for that had been paid through the foreclosure. It was nothing more than a mortgage given to redeem from the sale under the original purchase-money mortgage. Such a mortgage is not "an obligation contracted for the purchase of the premises." (Handford v. Edwards, (Ark.) 115 S.W. 1143; Sav. Bank v. Carroll, (Ia.) 80 N.W. 683; Carey v. Boyle, (Wis.) 11 N.W. 50; Austin v. Underwood, 37 Ill. 438; Magee v. Magee, 51 Ill. 500; Eyster v. Hatheway, 50 Ill. 521; Dreese v. Myers, (Kan. ) 34 P. 350; Perry v. Ross, (Cal.) 37 P. 757; Amick v. Amick, (S. C.) 37 S.E. 39; Loftis v. Loftis, (Tenn.) 28 S.W. 1091.)

The mortgage is also invalid as to any excess over the homestead, because such excess cannot be severed from the homestead without destroying the same by sale of the whole premises; it is only where the excess can be separated from the homestead without material injury, and without sale of the entire premises, that the mortgage not good as to the homestead is good as to the excess. (Bank v. Bank, 11 Wyo. 32; Jones v. Losekamp, supra; Engle v. White, 62 N.W. 154; Cooper v. Cooper, 127 N.W. 266; Wilson v. Wilson, (Neb.) 120 N.W. 147; Weitzner v. Thingstad, (Neb.) 56 N.W. 817; McCreery v. Schaffer, (Neb.) 41 N.W. 996; Teske v. Dittberner, 98 N.W. 57; Edwards v. Simms, (Ariz.) 71 P. 202.) The homestead contemplated by the constitution, and provision for which has been made by law, is a home, a place of habitation beyond the reach of creditors, and the legislature cannot change or defeat the idea of the homestead as expressed in the constitution. If the mortgage could be held valid as to the excess over the homestead exemption then the value should be ascertained as of the date of the execution of the second mortgage and not as of the date of the sale. (Teske v. Dittberner, supra; Dye v. Mann, 10 Mich. 291, Bruner v. Hicks, (Ill.) 82 N.W. 888.)

While the mortgage may for some purposes be considered as creating merely a lien, our statutes classify it as a conveyance. Not only was the mortgage given but the property was sold under it and hence there was clearly an alienation. The plaintiff was not estopped; there can be no estoppel under the circumstances of this case. (Freirmuth v. Steigleman, (Cal.) 62 P. 615; Planters &c. v. Dickinson, (Ga.) 10 S.E. 446.)

S. P. Cadle, (W. E. Mitchell of counsel) for defendant in error, Pense.

The provision of the constitution prohibiting the alienation of a homestead without the joint consent of husband and wife, when that relation exists, does not include a mortgage. (Fuller v. Hunt, 48 Ia. 163; Stark v. Duvall, (Okl.) 54 P. 453; Spiess v. Neuberg, (Wis.) 37 N.W. 417; Orr v. Stewart, (Cal.) 7 P. 693; Wilcox v. John, (Colo.) 40 P. 880; Shepherd v. Ins. Co., 38 N.H. 232; Judge v. Ins. Co., 132 Mass. 521; Bryan v. Ins. Co., (Mass.) 14 N.E. 454; Jackson v. Ins. Co., 23 Pick. 418; Hubbard v. Ins. Co., 33 Ia. 333; Sav. Bank v. Dubuque, 15 Ia. 394; Krider v. College, 31 Ia. 547; Orell v. Mfg. Co., 70 L. R. A. 881. citing many cases; Hoffmann v. Gross, 199 U.S. 342; Stark v. Morgan, (Kan.) 85 P. 567; Bass v. Buker, (Mont.) 12 P. 922.)

The mortgage under which the defendant in error purchased was an obligation contracted for the purchase price of the premises and is paramount to the homestead right under the provisions of the constitution, and it is therefore immaterial whether the homestead right was waived in the manner provided by the statute or not. (Carr v. Caldwell, 10 Cal. 380; Dillon v. Byrne, 5 Cal. 455; Hopper v. Parkinson, 5 Nev. 233; McWilliams v. Bones, (Ga.) 10 S.E. 724; Jones v. Parker, 8 N.W. 124; Kaiser v. Lembeck, 7 N.W. 517; Murry v. Davis, 5 S.W. 569; Kibby v. Jones, 70 Ky. 243; Acrumen v. Barnes, 66 Ark. 442; Johnston v. Arrendale, 71 S.W. 45; Ayres v. Probasco, 14 Kan. 141; Lumber Co. v. Bank, (Kan.) 80 P. 49; Nichols v. Overacker, 16 Kan. 54; White v. Wheelan, 71 Ga. 533; Dixon v. L. & Inv. Co., 40 S.W. 541; Prout v. Burk, (Neb.) 70 N.W. 512; Peterson v. Fisher, 124 N.W. 145.)

Where the title is in the husband he is not required to expressly waive the homestead right in the body of the deed conveying it, or in the acknowledgment; it is sufficient if the wife make such waiver. The plaintiff having waived her homestead right cannot now take advantage of the fact that the right was not also expressly waived by her husband. (Lessee &c. v. Spencer, 21 Howard, 228; Hughes v. U. S. 4 Wall. 232; Orr v. Stewart, 67 Cal. 275; Cohn v. Hoffman, (Ark.) 6 S.W. 511; Clark v. Baker, 14 Cal. 612; Kirkaldie v. Larrabee, 31 Cal. 455; Sherman v. McCarthy, 57 Cal. 507; Land Ass'n. v. Vierra, 48 Cal. 572; Bank v. Cornell, 2 N.H. 324; Hibberd v. Smith, (Cal.) 4 P. 482.)

POTTER, JUSTICE. BEARD, C. J., and SCOTT, J., concur.

OPINION

POTTER, JUSTICE.

This action was brought in the District Court by the plaintiff in error to quiet her title to certain real estate. She alleged that she was in possession of the property and the owner thereof in fee simple. The answer of each defendant alleged the execution and delivery of two mortgages by the plaintiff in error and her husband, the first on May 6, 1904, and the second on July 12, 1906, the foreclosure of the first mortgage, which was given for the purchase-money of the land; the redemption from the sale upon that foreclosure with money advanced for that purpose by the defendant, J. D. Powers, the holder of the second mortgage; the foreclosure of said second mortgage; and the purchase of the property at the foreclosure sale by the defendant, John W. Pense, and the issuance to him of a certificate showing such sale and purchase.

The case is here upon the pleadings, the findings of fact, conclusions of law, and the judgment, the evidence not being brought into the record. The facts as found by the trial court are substantially as follows: On May 6, 1904, the property was purchased by Alex Powers, the husband of the plaintiff, for the sum of $ 1,250. He paid at that time $ 200 in cash, and executed and delivered to the grantors a mortgage upon the property, in which the plaintiff joined, to secure the payment of the balance of the purchase price. That mortgage was a purchase-money mortgage, and the court so found. The property became the homestead of Alex Powers and his wife, the plaintiff, from the fact that they resided upon it and claimed it as their homestead. The mortgage aforesaid was duly assigned to the defendant, J. D. Powers, and, upon default in the payment of the debt thereby secured, the mortgage was foreclosed by advertisement under the power of sale therein contained, and upon the foreclosure sale occurring January 13, 1906, Lizzie Holstein and James W. Kirkpatrick purchased the premises and received a certificate of sale issued by the sheriff, who made the sale, which certificate was duly filed for record. It is recited in the findings that "the indebtedness secured by said mortgage was thereby paid and said mortgage released and discharged." It was probably intended by that finding to show that the money received by the officer upon the sale was paid to the mortgagee, for it is stated as a finding of fact and not as a conclusion of law, and at that time the mortgagors had themselves paid nothing to satisfy the amount due upon the mortgage.

On July 12, 1906, Alex Powers and his wife, the plaintiff herein borrowed from said J. D. Powers the sum of $ 1,650, and signed, executed and delivered to the Bank of Commerce of Sheridan, Wyoming, for the use and benefit of said J. D. Powers, a note and a mortgage upon the property aforesaid for that amount. The court found that said money was borrowed and the mortgage executed for the purpose of redeeming said premises from the foreclosure sale above mentioned, and that the money "was received by said Alex Powers and by him used to...