American Savings & Loan Ass'n v. Burghardt

Pemberton, C. J. The first material question presented by this appeal is as to the validity of the mortgage. It is not disputed that the land in controversy was the homestead of the defendants at the date of the execution of the mortgage. This mortgage was executed and this suit brought under the Com [326] piled Statutes of 1887. Section 323, Div. 1, of said statutes provides that a ‘ ‘mortgage or other alienation of such homestead by the owner thereof, if a married man, shall be void, unless the wife join in the execution of the conveyance théreof. ’ ’ The appellant admits that the acknowledgment is not such as is requred by law in such cases, but contends that the signature alone of the wife, without any technical acknowledgment, was sufficient to authorize the husband to incumber the homestead with the mortgage. The appellant contends that the acknowledgment by the wife of the mortgagor constitutes no part of the execution thereof. Counsel for appellant relies principally upon the decisions of Wisconsin and other states whose laws on this subject are different from ours. The laws of Wisconsin seem to require only the signature of the wife to the conveyance or mortgage of the homestead. The decisions of courts in other states cited by appellant seem to have been rendered under similar laws to those of Wisconsin. In Montana National Bank v. Schmidt, 6 Mont. 610, 13 Pac. 382, this court said : “The homestead can be conveyed only when the wife executes the conveyance by signing and acknowledging that she executes the same freely and voluntarily. The acknowledgment thus becomes an essential part of the exejution of a deed by a married woman. ’ ’ To the same effect we cite McLeran v. Benton, 43 Cal. 467; Leonis v. Lazzarovich, 55 Cal. 55. See, also, authorities cited in note to Livingston v. Kettelle, 41 Am. Dec. 170. We think, under the authorities cited, the acknowledgment of the wife under our law of a mortgage of a homestead, is an essential part of the execution thereof, and that, if such acknowledgment is substantially defective, the mortgage is, for that reason, void. This is certainly in accordance with the rule announced in Montana National Bank v. Schmidt, supra. The acknowledgment of the wife in the case at bar is defective in almost every requirement of the statute. We are therefore, of the opinion that the mortgage sued on in this case is void. The appellant contends that the defendants abandoned the homestead in question before the bringing of this suit, and for [327] that reason cannot plead such privilege and exemption to defeat a recovery in this case. Even if it be conceded that the defendants abandoned the homestead premises after the execution of the mortgage thereon, and before suit to foreclose, yet such abandonment did not retroact so as to give validity to the mortgage, which was void from the time of its execution. The mortgage, being void db initio, could not be validated by abandonment. (Waples on Homestead, etc., p. 559.) In Gleason v. Spray, 81 Cal. 217, 22 Pac. 551, it is held that a subsequent declaration of abandonment by husband and wife gives no validity to a void mortgage of the homestead. We think the appellant can claim nothing by the abandonment of the defendants after the execution of the mortgage of the homestead, even if the abandonment be conceded. The appellant contends that it was entitled to a personal judgment against the defendant Harry D. Burghardt for the amount of the note in any event, and assigns the action of the court in dismissing its complaint and rendering judgment in favor of defendants for costs as error. One provision of the note sued on is as follows : ‘ £It is understood that this note is given for a loan obtained on thirty (30) shares of stock of said American Building and Loan Association, and if the maker fails to make any monthly payment on said stock, or to pay any installment of interest for a period of six months after the same is due, then the whole amount of this note shall at once become due and payable. ’ ’ The evidence is uncontradicted that the defendant Harry D. Burghardt failed for many months prior to suit to pay the monthly installments called for by the terms of the note. There is no pretense that he was not in default in this respect. By reason of such default, the whole note became due and payable according to the terms thereof. Counsel for the respondents defends the action of the court in this respect; because, he says, there were two causes of action joined in the complaint, to-wit; an action at law on the note, and a suit in equity to foreclose the mortgage; and that, the mortgage having been held to be void, the plaintiff was not entitled to judgment at law on this note. We [328] think this contention entirely erroneous. In Bliss on Code Pleading this question is fully discussed, and authorities cited. See sections 159 to 171, inclusive. And in section 171, speaking of suits on promissory notes secured by mortgage, the author says : “But the objections to this view are twofold : First. A party usually asks the aid of a court in the exercise of its equitable jurisdiction when, without it, he has no claim for the money or for the specific property which he seeks. The legal demand, so called, does not arise until after the decree of the chancellor. When the mistake in his contract is corrected, when the deed that interferes with his title is set aside, when the constructive trust is declared, then his power to enforce his money or property demand begins. In such case there is but one cause of action, and there can be no separate statement. Second, if the money demand be perfect at first, this objection does not lie; but even then, as in collecting a debt secured by a lien, there is but one cause of action, but one w^’ong, although two actions may be based upon it. The money demand may be separately prosecuted, and the wrong — the cause of action — is the refusal to pay it; if he seeks to enforce the lien, the plaintiff has the same cause of action, only another remedy, and he will obtain other relief. Formerly this twofold relief was sought in different courts, and by a different mode of procedure — one was called an action at law, and the other a suit in equity; and only by the rule given in section 166 could one have full relief by one action. Under the code there is but one court and one form of action, and, by a single complaint, the aggrieved party may have all the relief to which he is entitled. In seeking what is still called legal and equitable relief, he does not unite different causes of action, for there is but one; he only seeks the twofold relief for the one wrong; therefore there can be no union of causes of action by separate statements. The pleader, in thus seeking full relief, should embody in his one statement all the faces showing the obligation and its breach, to which should be added the facts which show the lien, and he will ask for the double relief; or, if he seeks a money judgment only, [329] he will stop with the obligation and breach.” We think there is but one cause of action stated in the complaint. Under our practice there is but one court, with common-law and equity-powers; one form of action; and, if there were several causes of action arising on contract stated in the complaint, it would not be bad on that account, but plaintiff in such case could recover, and ought to be permitted to recover, whatever relief it shows by its evidence it was entitled to under any allegation of the complaint. Our statute and practice are not dissimilar from those discussed by Mr. Bliss. See, also, Moors v. Sanford (Kan. App.) 41 Pac. 1064. For this error the cause is remanded, with directions to the district court to set aside the order and judgment appealed from, and to render judgment for the plaintiff against defendant Harry D. Burghardt for the amount of the note sued on. Reversed, and Remanded. Hunt and Buck, JJ., concur.