Shattuck v. Byford

• Decision Date: 23 May 1896
• Citation: 35 S.W. 1107,62 Ark. 431
• Parties: SHATTUCK v. BYFORD
• Court: Arkansas Supreme Court

35 S.W. 1107

62 Ark. 431

SHATTUCK v. BYFORD

Supreme Court of Arkansas

May 23, 1896

Appeal from Franklin Circuit Court in Chancery, Ozark District JEPHTHA H. EVANS, Judge.

Affirmed.

John M Rose and J. F. Loughborough, for appellant.

1. The answer does not set up the fact that the mortgage was void under the homestead act, and there was no evidence presented to sustain that defense. The sole defense was usury. Thompson, Homestead, etc., sec. 701-2; Beach, Eq. Pr., sec 516; 46 Ark. 103. Homestead should be pleaded. Waples, Homesteads, 718; 26 Ark. 356; 42 id. 513; Thompson, Homestead, etc., 701; 29 id. 500; 24 id. 371; 6 id. 135; 59 id. 170; Mansf. Dig., sec. 5077. There is a total divergence between the allegata and probata, and it cannot be amended, or treated as amended. Pom. Rem. & Rem. Rights. sec. 554; 2 Rice, Ev., p. 661; Newman, Pl. 723; Maxwell, Code Pl. 583; Green's Pr. & Pl. sec. 475; 16 N.Y. 254; 2 Comst. 506; 88 N.C. 95; 55 Ark. 332.

2. The burden was on defendant to show that the property when mortgaged was Byford's homestead. 34 Ark. 55; Thompson, Homestead, etc., 879; 20 S.W. 543. It may be waived, as it is a privilege. 55 Ark. 139. It must be shown that he is a resident of the state. 34 Ark. 111. And prove he is entitled to the exemption. 53 Ark. 182. There was no proof that the land was Byford's homestead at the time of executing the mortgage.

OPINION

BUNN, C. J.

This is a bill to foreclose a mortgage on a tract of land in Franklin county, conveyed in said mortgage by James P. Byford and wife, Louisa Byford, to Albert R. Shattuck, as trustee, to secure a debt of $ 400 and interest, owing to the British & American Mortgage Company. William and Fletcher Peters, in some way not shown, became parties defendant in the outset, probably because they were in possession of the land when the suit was instituted, and they alone answered. In the answer, the defendants, William and Fletcher Peters, state that they purchased the land in question from Byford in December, 1889; that Byford was then occupying the land as his homestead, and owning no other lands; that one of them, Fletcher Peters, immediately took possession, and has ever since been in possession, occupying the land as his homestead; and in reference to the mortgage given, as aforesaid, by Byford to Shattuck, the answer charges that the debt secured thereby is usurious, as is also the mortgage.

The said mortgage was given in December, 1888, to secure a debt of $ 400 and 10 per cent. interest thereon, and due in five years. A note for the principal and for each annual installment of interest accompanies the mortgage. The wife united with the husband in the granting clause of the mortgage. She also relinquished her dower interest in the usual place, and in the usual manner, and then acknowledged that she had signed the relinquishment of her dower, and the certificate of the officer is in due form. This mortgage was properly executed and acknowledged by the husband and wife and is a good conveyance of the husband's land in general, and would have been a good conveyance of his homestead before the passage of the act of March 18, 1887, but is not a good conveyance of the homestead under that act, for, in order to make such a conveyance valid under that act, the wife must join the husband both in the execution of it and the acknowledgment thereof. Following the ruling in Pipkin v. Williams, 57 Ark. 242, 21 S.W. 433, this court, in Bank of Harrison v. Gibson, 60 Ark. 269, 30 S.W. 39, held that, in order to make valid the conveyance by husband and wife of the husband's homestead, the wife should join with the husband in the execution of the conveyance, and also should acknowledge that she had...