Kerr v. Garrison

COCHRAN, J. This action was commenced by the defendant in error to foreclose a real estate mortgage executed by Irene Waite Kerr on May 29, 1920. Judgment was rendered foreclosing the mortgage, from which an appeal has been taken. Mrs. Kerr was a married woman at the time of the execution of the mortgage, but, according to the finding of the trial court, her husband had abandoned her for more than one year prior to the time of the execution of the mortgage. Mrs. Kerr and her minor children were occupying the property in controversy as their home at the time of the execution of the mortgage. The plaintiffs in error contend that the mortgage was void because the same was not jointly executed by the husband and wife. Section 5242, Comp. Stat. 1921, provides: “When the title to the homestead is in the husband, and the wife voluntarily abandons *102 him for a period of one year, or from any cause takes up her residence out of the state, he may convey mortgage or make any contract relating thereto without being joined therein by her; and where the title to the homestead is in the wife, and the husband voluntarily abandons her, or from any cause takes up his residence out of the state for a period of one year, she may convey, mortgage or make any contract relating thereto without being joined therein by him.” In Armstrong v. Independent Oil & Gas Company, 95 Okla. 231, 219 Pac. 353, this provision of the statute was held to be constitutional. We adhere to. the view taken in that case, and are of the opinion that the mortgage in the instant case was valid, as Mrs. Kerr bad been abandoned by her husband for more than a year prior to the execution of the mortgage. The plaintiffs in error contend that the record does not show an abandonment of Mrs. Kerr by her husband. This was a question of fact which was determined by the trial court, and the finding of the court is not clearly- against the weight of the evidence, and will not be disturbed on appeal. The judgment of the trial court is affirmed, JOHNSON. O. .7., and McNEILL, NICHOLSON. and MASON. J.T.. concur.