Babcock v. Hoey

Baldwin, J.1 The cause was submitted to the court below [376] upon the pleadings and upon an agreed statement of facts. It was agreed that the mortgaged premises were occupied by respondents as their homestead when the mortgage was . executed and when this proceeding was commenced; that .'.the debt was contracted by John Hoey alone since the passage of the homestead act, and after the mortgaged premises became the homestead of respondents; that the said Eliza M. Hoey never signed any other instrument in reference to said indebtedness but the said mortgage; that the fee simple title was in John Hoey, that the said Eliza had only her marital rights therein; that the said John Hoey had no other property subject to execution out; of which the'plaintiff could realize his claim. • ■ .■■■■:< " • • '' The mortgage was duly signéd'-ánd acknowledged by both husband and wife, the premises were described therein by ■numbers, metes and bounds, but it was not expressly stated that it was the homestead that was intended thereby to- be transferred to complainant. The question presented by appéllants for the consideration of this court is whether the homestead of respondents is liable to be sold under a mortgage of this character for the debt of the husband alone, or .whether the husband and wife, when they executed and delivered to complainant the mortgage upon the homestead 'thereby waived its exemption from judicial sale. ' Under our statute, the homestead of every head of a family is exempt from judicial sale, when there is no special declaration of the statute to the contrary. There are exceptions, however, to this general exemption. It is liable to be "sold for taxes, under a mechanic’s lien, for debts contracted prior to the passage of the homestead act, or to the purchase thereof, or for debts created by written contract by persons having the power to convey and expressly stipulating that the homestead should be liable therefor. It is also provided by section 1247 of the Code (sec. 2279 of the Revision) that a conveyance by such owner is of no validity unless the husband and wife, (if the owner is married,) concur in and sign [377] such conveyance. It is not claimed by the complainant that the homestead of the defendants is liable under either of the exceptions as above stated; but it is submitted that the mortgage sought to be foreclosed is a conveyance within the meaning of said section 1247, and that when the defendants. • concurred in and signed the same, they thereby waived their -right of exemption, and when thus waived, their equity of redemption is liable to be foreclosed in the same manner as ■though the mortgaged property did not constitute the home'•stead. Did the legislature, in the adoption of this section, intend to embrace mortgages within the meaning of the term conveyance? Giving to the word conveyance a construction according to the approved usage of language, or the peculiar and appropriate meaning it has received in law, would it not apply to, or include mortgages as well as absolute transfers of titles? “A mortgage is the conveyance of an estate by way of pledge for the security of a debt and to become void upon the payment of it.” 4 Kent Com. 138. “A mortgage may be described to be a conveyance of lands by a debtor to his creditor,” &c. Bouv. L. D. “Mortuum vadium, dead pledge, or mortgage, is where a debtor actually conveys lands to his creditor,” &c. Walker’s Am. L. 293. “A mortgage is a conveyance of property and passes it conditionally to the mortgagee.” United States v. Foster, 2 Cranch. 358. “A mortgage is not only a lien for a debt, but it is something more, it is a transfer of the property itself as a security for the debt.” Conrad v. Atlantic Insurance Co., 1 Bet. 441. “A mortgage is the conveyance of an estate.” 1 Hilliard on Mortgages, 2. “A mortgage not only creates a lien but operates to transfer to the mortgagee a qualified or conditional estate,” &c.; and a “ mort'gagee is a purchaser within the meaning of our registry law.” Porter, et al, v. Green, et al, 4 Iowa 571. The authorities, without exception, speak of a mortgage as a conveyance. We are inclined to think that our legis [378] lature regarded a mortgage as a conveyance within the meaning of this section, not only from the general signification of the word as applicable to mortgages, but by the use of the word in other sections of the Code, adopted at the same time this section was. In section 1232 the legislature provided that the form of a mortgage might be the same hs a deed of conveyance, adding that it should be void on condition, &c. So also in section 1256 it is provided that the owner of a homestead may change the metes and bounds thereof, but such change should not prejudice conveyances or liens made or created previous thereto. What bind of conveyances are here referred to? Not absolute conveyances, because no change of boundaries by the owner of the homestead could prejudice the rights of the vendee where he had a title in fee simple. To say that it referred to any other than conditional conveyances, would render this section meaningless. We also think that this court has regarded a mortgage as a conveyance and recognized the validity of a mortgage upon the homestead when the husband and wife concur in executing the same. The purchaser at the sale, under the foreclosure of a mortgage executed by a husband and wife, of their homestead, obtains a title good against a prior mortgage of the homestead executed by the husband alone, although in a suit to foreclose such prior mortgage the husband and wife are made parties and make no defense. Alley v. Bay, 9 Iowa 509. .So also in the case of Dickson, et ál, v. Ohorn, et al, 6 Iowa 19, the right to incumber the homestead by a mortgage is clearly recognized. The court in their opinion say, “ that Chorn and Dickson and their wives might at their option execute a mortgage upon their homestead to any creditor,” &c. “ The extent of the incumbrance in such case would be to secure the particular debt named,” &c. Again, in speaking of the homestead, it is said, “ that the law gives to these debiors the right to claim their property as exempt and sets it apart for the benefit of their families. By the concurrence of those who may convey it, it may be incumbered,” &c. The right of the husband and wife [379] to hold their homestead exempt from judicial sale is a privilege conferred upon them by the statute, but it was not tho intention nor had the legislature the power to deny the husband and wife the right to dispose of their homestead if they thought proper so to do. The wife has more than a dower interest in the homestead and it can-not be sold for the debts of her husband without her consent. But our statute confers upon her the right to dispose of her interest in real estate in the same manner as any other person. Section 1207. Hoey and his wife for the like consideration for which this mortgage was given, could have transferred absolutely to plaintiff their interest in the mortgaged premises, and thus placed their homestead beyond their control. If they had the power to convey absolutely, had they not the right to convey conditionally ? Is not the lesser power included in the greater ? To hold that no such power existed, would deny to the husband and wife the power to make such contract and dispose of their property as they might think would best subserve their interest. We conclude that a mortgage is a conveyance within the meaning of section 1247,as above recited. And when the husband and wife concur in and execute a mortgage upon their homestead they thereby waive their right to hold the same as exempt from judicial sale. A mortgage thus executed is valid and confers upon the mortgagee the right to foreclose the same as if it had been given upon any property other than the homestead. Judgment affirmed. Footnotes [1] Lowe, C. J. dissenting.