Prout v. Burke

• Decision Date: 17 March 1897
• Docket Number: 7098
• Citation: 70 N.W. 512,51 Neb. 24
• Parties: JULIA M. PROUT ET AL. v. WILLIAM BURKE ET AL
• Court: Nebraska Supreme Court

70 N.W. 512

51 Neb. 24

JULIA M. PROUT ET AL. v. WILLIAM BURKE ET AL

No. 7098

Supreme Court of Nebraska

March 17, 1897

ERROR from the district court of Gage county. Tried below before BUSH, J. Affirmed.

AFFIRMED.

J. E Cobbey, for plaintiffs in error.

J. H Broady, contra.

OPINION

NORVAL, J.

This was an action by William Burke against Julia M. Prout and others to foreclose a real estate mortgage, in which there was a decree in favor of the plaintiff, as well as for the defendant Andrew S. Holladay on his cross-petition. The defendants, Julia M. Prout and Frank N. Prout, have brought the case to this court for review.

It is made to appear in the record that the defendant Holladay was the owner of lots 7 and 8, in block 31, of Cropsey's Addition to the city of Beatrice, but the title to the same was held in trust for him by one George H. Collins. In June 1889, Julia M. Prout purchased said real estate of said Holladay, through one J. C. Fletcher, his agent, for the agreed price of $ 3,250, of which sum she was to pay $ 500 in cash, assume a mortgage on the premises for $ 600, and give her seven promissory notes for the balance of the purchase price, six for $ 300 each and one for $ 350, the notes to be secured by a lien upon the premises. She gave notes bearing date June 15, 1889, and to secure the same she executed and acknowledged a mortgage covering the property purchased before the said Fletcher, as a notary public, and which mortgage contained a recitation that it was given to secure the part payment of the purchase money, and it was filed for record August 7. Holladay caused Collins to execute a deed conveying the lots to Mrs. Prout, this deed bearing date of June 1, 1889, and the same was recorded on August 15 following. At the time the mortgage was executed and delivered, Mrs. Prout, her husband, and their daughter were in possession of the premises, and they have ever since occupied the same as their homestead. Plaintiff, as assignee of two of the notes, instituted this action to foreclose the mortgage, alleging in his petition, inter alia, that the notes and mortgages were for the unpaid purchase money on the premises. The defendant Holladay filed a cross-petition in the case praying a foreclosure as to the notes held by himself and secured by the same mortgage. It further appears that whilst the deed and mortgage bear different dates, they were both executed and delivered as parts of one and the same transaction. It is insisted by the unsuccessful defendants that the mortgage is void because it was not executed and acknowledged by Frank N. Prout, the husband of the mortgagor. Sections 3 and 4 of chapter 36, Compiled Statutes, entitled "Homesteads," read as follows:

"Sec. 3. The homestead is subject to execution or forced sale in satisfaction of judgments obtained: First --On debts secured by mechanics', laborers', or vendors' liens upon the premises. Second--On debts secured by mortgages upon the premises, executed and acknowledged by both husband and wife, or an unmarried claimant.

"Sec. 4. The homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife."

It is perfectly plain that under the foregoing provisions a mortgage on a homestead of a married person is invalid unless the instrument is executed and acknowledged by the husband and wife, and this court has by an unbroken line of decisions so construed the statute. (Bonorden v. Kriz, 13 Neb 121; Aultman v. Jenkins, 19 Neb. 209, 27 N.W. 117; Swift v. Dewey, 20 Neb. 107, 29 N.W. 254; Larson v. Butts, 22 Neb. 370, 35 N.W. 190; McCreery v. Schaffer, 26 Neb. 173, 41 N.W. 996; Betts v. Sims, 25 Neb. 166, 41 N.W. 117; Whitlock v. Gosson, 35 Neb. 829, 53 N.W. 980; Clarke v. Koenig, 36 Neb. 572, 54 N.W. 842.) It therefore follows that this mortgage is void and of no force and effect whatever, if the homestead right of the Prouts had attached to the property at the time the mortgage was executed and acknowledged, since it was signed alone by the wife and not by the husband. But no homestead right existed in the complaining defendants at the time the mortgage was given, inasmuch as the purchase of the premises and the execution of the mortgage thereon for the unpaid purchase...