Marks & Wife v. Marsh

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. The defendant, Marsh, executed a note and mortgage to N. J. Pflaum, then sole, but now the wife of A. Maries. This suit was brought to recover judgment upon the note, and to foreclose the mortgage. Defendant appeared, and set up the right of homestead. Upon the trial, a decree was rendered for defendant, and plaintiff appealed. In the case of Revalk and Wife v. Kraemer et al., July Term, 1857, we held, that legal proceedings, to be conclusive against either husband or wife, as to the homestead, must include both. And we then said, that, “ When the husband appears alone and defends the suit, his right to the homestead is no more concluded by the decision than by his separate execution of the deed or mortgage.” When the husband appears and defends alone, any decision the Court could make in regard to the homestead, could not affect the rights of the wife, she not being a party to the suit. And such is the nature of the title to the homestead, that the rights of the husband cannot bo affected without affecting those of the wife also. If no binding decision can be made when one of them only is a jjarty, then it is idle for the Court to make any decision at all in such a ease. This is one of those cases in which no complete determination of the controversy can be had without the presence of both husband and wife ; and when the fact of homestead was disclosed by the answer, the Court should have ordered the wife of defendant to be brought in, so that a final decree, binding upon all parties in interest, could have been made, without resorting to a multiplicity of suits. (Code, § 17.) The judgment of the Court below is reversed, and the cause remanded for further proceedings.