Stewart v. Mackey

Hemphill, Ch. J. This was a suit on a promissory note, and for the foreclosure of a mortgage. There was judgment for the amount due on the note, but an order for foreclosure was refused, and this has been assigned as error. The facts of the case, as agreed upon by counsel, so far as they affect the question of foreclosure, are to the effect that on the 29th of May, 1851, at the time the note bears date, John Mackey, the defendant, and his wife, executed in due form, a mortgage on the property described in the petition ; that Mackey was, at the time of making the said mortgage, the head of a family, and occupied the property embraced in the mortgage, as a homestead, at that time; that the property was worth eighteen hundred dollars; that about two years ago Mackey ceased to occupy said property as a homestead, and has since occupied-the place he now resides at, as a homestead, which is different from the property mortgaged. The only question is whether the mortgage, though ineffectual at the time of its execution, could be enforced subsequently, and after the homestead, which had been mortgaged, was abandoned, and another homestead had been acquired. Were it not for the provision of the Constitution, that the owner of a homestead, if a married man, should not be at liberty to alienate the same unless by consent of the wife, the husband would have the unquestionable power to dispose of it at pleasure. His right, his absolute title in the property, is not affected, but his power of alienation is restricted, and for the distinct and specific purpose of securing a homestead to the family. To effect this purpose the wife, if living, must be consulted before the sale, and this for many reasons which might be. enumerated, but especially that she may not be deprived of one homestead without provision for the acquisition of another. The entire object of the law and the Constitution is to secure a homestead, and no infringement upon the husband's rights of property, except such as may he necessary for the object designed, is intended by the law or is to be presumed. [58] Under this view, the husband may, in conformity with law, make any disposition whatever of the homestead, being Ms own property, provided his act does not interfere with the absolute right of enjoyment and use of the homestead by the husband, wife and family, or with its sale, if this be necessary to raise funds for the acquisition of another homestead, or with the right of the wife to refuse to abandon her homestead, or acquiesce in its sale or other disposition, without provision for another homestead. There appears to be no necessity to encroach upon the husband's right of alienation, further than may be necessary to secure these objects, nor to inhibit a creditor from taking a mortgage from the husband, subject to the contingency that the homestead may not be changed, or that the wife may not assent, and that in the mean time his claim may be barred by the statute of limitations, &c. No doubt, after the change, the homestead, which has been abandoned, becomes subject to forced sale for the benefit of creditors, and the question is whether the plaintiffs have a lien on. this property, in preference to other creditors, and we are of opinion that the mortgage took effect and had force as a lien, as soon as the property mortgaged was abandoned and another homestead was acquired, and that they are entitled to foreclosure. No question is made in this case as to the rights of the wife, nor are any set up for her by the record. The fact that the mortgage was executed by the wife, as is stated in the agreement, I have not considered as having any bearing in the cause. A mortgage by husband and wife of the homestead, to be valid, must be conditioned with a power of sale by the mortgagee upon default of payment. (6 Tex. R. 102.) Without this condition her assent to the mortgage is without any effect, and neither adds to, nor diminishes, the force and effect of the mortgage by the husband. The question raised in this case was determined in the case of Lee and wife v. Kingbury, (13 Tex. R. 68,) to which we refer in support of this decision. It is ordered, adjudged and [59] decreed that the judgment for the amount due on the note be affirmed, and that the judgment refusing to decree a foreclosure, he reversed, and such judgment .be rendered as should have been pronounced below. Eeversed and re-formed.