Johnson v. Fay

Bigelow, C. J. It is not necessary in the present case to determine whether any homestead right exists in a right to redeem lands mortgaged to an amount exceeding eight hundred dollars, when the wife has joined with her husband in the conveyance to the mortgagee, and released her right of homestead in the premises. The validity of the mortgage which the plaintiff seeks to set aside does not depend on the decision of this question. He contends that the second mortgage on the premises is invalid upon the ground that the wife of the insolvent did not join with her husband in the deed of conveyance, according to the provisions of the St. of 1855, c. 238, § 5; and in support of this position he cites and relies on Richards v. Chace, 2 Gray, 383. But the difficulty in maintaining this proposition arises from the provision in the St. of 1857, c. 298, § 13, by which all titles to real estate in a homestead farm or [145] lot, held under conveyances in which the wife failed to join, are confirmed and established, subject to the wife’s right of dower and homestead thereon, “except where parties, other than the grantees in such conveyances or those claiming under them, have, prior to the passage of this act, acquired rights in said real estate, by attachments, levy on execution, descent, devise, purchase or otherwise.” In the present case, the plaintiff’s title accrued on the commencement of the proceedings in insolvency, June 4th 1857. The act containing the confirmatory clause above cited passed on the 30th of May, five days preceding. The second mortgage held by the defendant was thereby confirmed and rendered valid as against the plaintiff, who took his title as assignee subsequently to and with implied notice of this provision of the statute. The plaintiff does not come within the exception contained in the confirming clause, because he did not acquire his title prior to the passage of the act, by which we understand the time when it had passed through the various stages rendered necessary by the provisions of the constitution to make it a valid statute, and been approved and signed by the governor. The right of the legislature to enact the provision, above cited, confirming titles created by conveyances of a homestead farm or lot, in which the wife did not join, was fully considered in Wildes v. Van Voorhis, 15 Gray, 139, and its validity was there recognized and affirmed. It follows that the second mortgage is valid, and that the plaintiff is not entitled to redeem the estate, except on payment of the amount due on both mortgages with interest. Decree accordingly.