Higley & Co. v. Millard

Day, Oh. J. i. hombstbad: íípoiKaíítecedent debt. I. It is claimed by apjmllants that the mortgage upon the homestead, not having been concurred in by ^e, is void; whilst the appellees insist that the mortgage, having' been, executed for a debt contracted before the homestead was purchased, and for which the homestead is liable, is valid, and may be enforced, although not signed by the wife. The mortgage was executed in 1857, and its effect, if valid, is to be determined by section 1249 of the Code of 1851, 2281 of the Eevision. This section is as follows: “It (the homestead) may be sold on execution for debts contracted prior to the passage of this law, or prior to the purchase of such homestead (except where otherwise declared) or for those created by written contract executed by the persons having the power to conve3r, and expressly stipulating that the homestead is liable therefor. But it shall not in such cases be sold, except to supply the deficiency remaining after exhausting the other property of the debtor which is liable to execution.” It will be seen from this section that, under the law in force when this mortgage was executed, the homestead could be sold only to supply a deficiency existing after exhausting the other propert3r of the debtor liable to execution, whether the debt existed before the purchase of the homestead, or was contracted afterward and secured by mortgage upon the homestead; so that the execution of a mortgage by the husband, upon the homestead, to secure a debt which existed before the purchase of the homestead, imposed no additional burden thereon, and in no way affected the rights of the wife. As to Fhebe Millard it is immaterial whether the mortgage be considered as [589] valid or not, since in either event, under the section above quoted, the liability of the homestead is the same.. But, as to innocent purchasers of the homestead, before judgment upon the debt so contracted, the question of the validity of such mortgage is very material, for, if void, the record of it would be to them no constructive notice, and, as against them, it would create no lien. 2_._. notice. II. In March, 1862, Millard and wife executed a warranty deed of said premises to Harvey C. Marsh, and in September, 1864, Marsh executed a like conveyance to the defendant, Josiali Dull. These conveyances were made long before suit was commenced upon the note and mortgage in controversy. At the time of these conveyances there was nothing of record, anywhere, to impart notice that the property in question was liable for the debt to "Wliittam, unless it be the mortgage in question. Section 1247 of the Code of 1851, 2279 of the Bevision, provides that a conveyance of the homestead is of no validity, unless the husband and wife concur in and sign such conveyance. This mortgage, therefore, is invalid, and the record of it imparted no constructive notice to subsequent purchasers. If either Marsh or Dull is in all other respects entitled to the ■ protection of an innocent purchaser, it must follow that the title of the defendant, Dull, cannot be burdened with the plaintiffs’ judgment. III. This brings us to consider the interest acquired by Marsh through his purchase from Millard and wife, in March, 1862. 3. vendor ütieVuond.e' The conveying part in the quit claim deed from the administrators of B. M. Cooley, is as follows: “In consideration of one dollar, in hand paid by Phebe Millard, do hereby forever quit claim to the said Phebe Millard, her heirs and assigns forever.” It does not appear that this deed was made pursuant to the order or direction of any court. See Bevision, section 2460. It is claimed that this conveyance is ineffectual to pass the legal title, and that the title is still in the estate of B. M. Cooley, deceased. Let all [590] this be conceded. How, then, stands the case? In July, 1856, B. M. Cooley executed his bond to J. R. Millard, conditioned for a conveyance of the property upon the payment of the purchase price. The evidence shows that in September, 1860, the purchase price had been fully paid. At that date, then, J. R. Millard was entitled to a conveyance from the estate of Cooley. He had the equitable title to the property in controversy. This equitable interest, at least, passed to Marsh, by the warranty deed from Millard and wife in March, 1862. ■It does not appear that he had any actual knowledge of the note to Whittam, and, as we have seen, the mortgage imparted no constructive notice. The defendant Dull purchased in September, 1864, also without actual or constructive notice, and paid, as appears, a consideration of $600. Under such circumstances his equity is superior to that of the plaintiffs, who acquired no lien upon the premises until they recovered their judgment in September, 1869. It becomes unnecessary to consider the question of the statute of limitations, upon which defendants rely, or whether Phebe Millard, as defendants claim, purchased the property with her own means. Reversed.