Olson v. Nelson

By the Oou/rt — Elandrau, J. The hnortgage in the complaint set out, was executed on the 23d day of June, 1856, and consequently must be governed by the laws then in force, as to its validity or invalidity. It was executed by the Plaintiff in Error alone, and was upon his homestead, he being at the time a married man. It is claimed by the Plaintiff in Error, that the signature of the wife was essential to the validity of the instrument, and we are cited to Sections 93-94 of the JR. S. on page 363. Section 93 declares what character of homestead “ shall be exempt from sale on execution or other process of a Court,” and covers the case of the Plaintiff in Error, herein, and provides that “ no release or waiver of such exemption shall be valid unless the same shall be in writing, subscribed by such householder and his wife, if he have one, and acknowledged in the same manner as conveyances of real estate are by law required to be acknowledged.” Section 94, as amended by the laws of 1854, page 103, declares that “ such exemption shall not effect any laborers’, mechanics’ or other lien for labor performed, or materials furnished in the erection, alteration or repairs of any building, or addition thereto, on such land, nor extend to amp mortgage thereof lawfully obtained, nor to any sale for non-payment of taxes or assessments thereon, nor to any debts contracted, or liabilities incurred for the purchase of said land.” It is quite evident that the intention of the Legislature was [59] to exempt from “ sale on execution, or other process of a Court,” this homestead, as against any general indebtedness that the owner might incur, not connected with the land itself, or the improvements thereon; and they have made such exceptions only as will prevent the owner from increasing the value of his land at the expense of those who furnish him with the labor or materials to do it, as will protect the public in the collection of taxes and assessments, and as will include liens voluntarily created by mortgage. The exemption and the exceptions to its operation must be read together; they are one act; and as to the class of claims excepted, it cannot be said that there ever was any exemption at all; the land stands in relation to them, as any other land of the owner would; exactly as if the law had never been passed at all. Such being the case, there can be no such thing as a “ waiver or release ” of the exemption in such cases, as it never existed; and that provision of Section 93, which says, that “ no release or waiver of such exemption shall be valid unless the same shall be in writing, subscribed by such householder and his wife, if he have one,” &c., cannot refer to any of the excepted class of claims, among which is a mortgage lawfully obtained. These words “release or waiver of such exemption,” can ouly refer to an “ execution or other process of a Court,” and prevent the husband from acting alone when the homestead is so attacked, as it is only exempted from such process, and we think the exemption being limited as it is to such process, a mortgage lawfully obtained, and taxes and assessments would have been collectable against it without any exception in their favor. If there was any doubt about the meaning of the Legislature being as we have interpreted it, it would be cleared away by the act of 1858, on the same subject, the first Section of which provides for a homestead exemption against any process from a Court, and the second Section limiting the extent of such exemption, uses the very words of the Bevised Statutes in reference to a mortgage, adding, what the Plaintiff in Error claims for that act, to wit: “ Such exemption shall not extend to any mortgage thereon, lawfully obtained, but such mortgage or other alienation of such land by the owner thereof, if a married man, [60] shall not be valid without the signature of the wife of the same, unless such mortgage shall be given to secure the payment of the purchase money or some portion thereof,” making it quite evident that the Legislature of 1858 deemed the legislation of 1851 imperfect in this particular. The Plaintiff in -Error claims that the word “ release,” as used in the statute includes a mortgage. The view we have taken of the application of that word, is an answer to this point, but there is a still further one, which is, that the statute being one exempting a debtor’s property from the payment of his debts, is in derogation of the common law, and must be strictly construed. Rew vs. Alter, 5 Denio, 119. We recognized this principle in the case of Grimes vs. Bryne, argued at the December term of this Court, in 1858. We cannot extend Dy implication, statutes of this nature. The judgment should be affirmed.