Lyons v. Connor

BRICKELL, C. J. If it was conceded that the certificate ■ of a probate of conveyance of real estate, in the form prescribed by the statute for conveyances generally, is not sufficient under the Constitution to show the voluntary assent and signature of the wife to an alienation of the homestead, the concession would not avail the appellant. While the evidence may show that he was' married, and a resident off [183] the State, when the mortgage was executed, it is not shown the premises mortgaged were then his homestead. It is-shown that at the time of the trial, more than three years after the execution of the mortgage, he was residing on the premises, and at that time he could have asserted a claim of exemption if they had not been encumbered by the mortgage,. But it is not shown that when the mortgage was executed he was occupying or claiming them as a homestead. For aught that appears, his homestead was elsewhere, and even after suit commenced, he may have moved on and occupied the premises, then first asserting a claim to them as a homestead. In another case, at the present term, we have decided that prior to the statute of April 23, 1873, (Pamph. Acts, 1872-3,. 64), the execution of a deed by the wife, and her acknowledgment of the execution, certified in the form prescribed by the statutes for the certificate of probate of conveyances, satisfied the constitutional requisition of voluntary assent and signature. We find no error in the record, and the judgment must be-affirmed.