Prout v. Burke

• Citation: 51 Neb. 24,70 N.W. 512
• Parties: PROUT ET AL. v. BURKE ET AL.
• Decision Date: 17 March 1897
• Court: Supreme Court of Nebraska

51 Neb. 24

70 N.W. 512

PROUT ET AL.

v.BURKE ET AL.

Supreme Court of Nebraska.

March 17, 1897.

Syllabus by the Court.

1. A mortgage given by the wife at the time of the purchase of real estate, to secure the unpaid purchase money, is valid security, though not signed by the husband, notwithstanding the property was purchased for, and occupied as, a family homestead.

2. A mortgage upon real estate other than the homestead, executed and delivered, is valid between the parties, although not lawfully acknowledged or witnessed. Holmes v. Hull (Neb.) 70 N. W. 241.

Error to district court, Gage county; Bush, Judge.

Action by William Burke against Julia M. Prout and others. Decree for plaintiff, and for defendant Andrew S. Holladay on his cross petition, and defendants Julia M. Prout and Frank N. Prout bring error. Affirmed.J. E. Cobbey and Richards & Prout, for plaintiffs in error.

J. H. Broady, for defendants in error.

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 recitationthat it was given to secure the part payment of the purchase money, and it was filed for record August 7th. 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 15th 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 mortgage 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, while 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, c. 36, Comp. St., 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' lien 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 the 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, 12 N. W. 831;Aultman & Taylor Co. 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. 833, 53 N. W. 980;Clarke v. Koenig, 36 Neb. 572, 54 N. W....