Patterson v. Kreig

Caton, C. J. This was an action of ejectment, upon a mortgage executed by the husband and wife upon the homestead, without any release or waiver of the homestead right, and the question is, can the homestead right be claimed in an action of ejectment? It would undoubtedly be very difficult to do this under the law of 1851. That law only exempted the homestead from levy and forced sale, and the first section provides, “ And no release or waiver of such exemption shall be valid, unless the same shall be in writing, subscribed by such householdei-, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged.” Thus the law remained, until it was amended in 1857, as follows : “ That the first section of £ An Act to exempt homesteads from sale on execution,’ approved February 11, 1851, be amended by inserting after the words, £ subscribed by such householder,’ the words, £ and his wife, if he has one,’ it being the object of this act to require, in all cases, the signature and acknowledgment of the wife, as conditions to the alienation of the homestead.” This amendment does something more than merely make it necessary for the wife to join in the release of the homestead right. It goes further, and cuts up by the roots all alienations of the homestead, in which she does not sign and acknowledge a release of the homestead right. This is made a condition to the validity of all alienations of the homestead, whether by deed of bargain and sale, or mortgage. There was no such release of the homestead right signed and acknowledged by the wife, accompanying this mortgage, and without that, this statute, in substance, declares it to be invalid, and this reduces the case to the simple question, can the plaintiff recover upon an invalid conveyance? This question is so easy, that it answers itself. By annexing this condition, the legislature determined that it should not be binding in law without it, and consequently it creates no rights as a conveyance, and it is only as a conveyance that the plaintiff treats it when he attempts to recover upon it in ejectment. The judgment must be affirmed. Judgment affirmed.