Hall v. Powell Et Ux

Opinión of the court by McAtee, J.; It is contended by the plaintiff in error that Eldorean Powell has, by reason of the execution of *281 the mortgage, no homestead interest in the land. It is provided in section 21, ch.21, title “Conveyances,’’Statutes Oklahoma, 1893, that: “All instruments other than leases for the period of one year, affecting the title to realty occupied as the homestead of a family, shall be void unless the husband and wife join in the execution and acknowledge the instrument conveying the same.” The court, in. its special findings -of fact, found that the land in question was the homestead of the defendants, Oren A. Powell and Eldorean Powell, and that she had not signed and had not joined in the execution, and that she had not acknowledged the mortgage. These facts are not open to contention, the rule being that, when evidence has been produced in the trial court upon all points included in the findings of fact made by the trial court, if such evidence reasonably tends to support the findings, such findings of fact will not be disturbed in this court; and the rule upon the subject is the same when a case is submitted to the court below without a jury, as when a jury is empaneled to try the cause. (Bank v. Earl, 2 Okla. 617, 39 Pac. 391.) Such testimony was produced upon the examination of Eldorean Powell herself, who testified that .she “had not ■signed the mortgage” in question; that she had not authorized any one to sign it;” that she “did-not know that a mortgage was given on that home for a couple of weeks afterwards-;” that she was sick in bed, unconscious a part of the time, and had been sick for three weeks; that she remembered the parties coming in, but did not know what they came for; had no conversation with them, did not sign the mortgage, and that nothing was said to her about signing her name to it; that she made no *282 -acknowledgment upon it, nor had ever consented to the signing of it; that it was her home and homestead, and the home and homestead of the family, and the only one they had; and that neither she nor they had ever abandoned it, but that they had left it temporarily, having agreed to rent it for one year from about the 1st of March, 1897, and had gone to her father and mother, where her husband, Oren A. Powell, was to find work. This evidence was supported by other facts and circumstances. The testimony abundantly “tended to support the ■findings” of the trial court, and the finding will not be disturbed here. It cannot be disputed here that Eldorean Powell did not join in the execution, and did not acknowledge the mortgage which purported to convey the land for the purposes of securing the payment of the debt then incurred by Oren Powell, and the mortgage was therefore void for all purposes from its inception — was so from the beginning — because there is no question that the land was the homestead of the defendants at the time the mortgage purported to have been executed, and because the wife, a® the trial court found, had never joined in its •execution. It is argued, however, that when the family, ■after the execution of the mortgage by Oren A. Powell, left the land, no intention having been proven that Oren Powell intended to return to it, since he was the head of the family, such leaving of the homestead for the period of a year, without the proven intention of returning, was an abandonment. If it should be sustained that such .a leaving of the homestead was abandonment, it could not avail the plaintiff in error here, since there is no question that at the time of the execution of the mortgage by *283 Oren A. Powell the land was the homestead of the family; ■and since the special findings of the court below,supported by evidence, show that the wife did not join in the mortgage, it was void from the beginning; and the subsequent abandonment, if, indeed, it was Oren Powell’s intention never to return to the place, could have no effect to validate the mortgage or entitle the mortgagee to any remedy under it against the land included therein. (Ott v. Sprague, 27 Kan. 620; Bruner v. Bateman, 66 Iowa, 488, 24 N. W. 9; Shoemaker v. Collins, 49 Mich. 597, 14 N. W. 559.) And, the mortgage having been void from the beginning, and no fraud having been shown on the part of the wife, Powell had a perfect right.to convey the land to his wife, although signed by himself alone. (Furrow v. Athey, 21 Neb. 617, 33 N. W. 208; Harsh v. Griffin [Iowa] 34 N. W. 441.) The latter case declares that: “A deed .by a husband to his wife of their homestead is void, unless the wife joins therein, .thus executing a deed to herself of her own interest in the property. Code sec, 1990, is relied upon to support this position. It provides that a deed of a homestead is not valid unless the husband and "wife join therein. The case of a deed to the wife is not within the 'spirit of this section, which surely cannot intend that the wife should do the vain and absurd thing of executing, as grantor, a deed to herself as grantee.” The judgment ■of the court below will be affirmed. All of the Justices concurring.