Rogers v. Day

Grant, C. J. (after stating the facts). 1. Was the mortgage valid when executed ? To this there can be but one answer. It was not. The wife lost none of her marital rights, including her right in the homestead, by being driven therefrom through the cruelty of her husband. At the time the mortgage was executed, her homestead right was as secure as though she had been in actual possession. Sherrid v. Southwick, 43 Mich. 515; Barker v. Dayton, 28 Wis. 367; Herron v. Knapp, 72 Wis. 553. 2. The mortgage contained a covenant of warranty of title. Did this inure to the benefit of defendant upon the granting of the divorce ? The plain language of the statute, which makes such a mortgage absolutely void, is [667] a complete answer to the question. The covenant in an absolutely void instrument has no greater force than the instrument itself. A covenant in a deed which is void cannot be given life as an effectual conveyance by a decree of divorce. Phillips v. Stauch, 20 Mich. 369, 381; Watertown Fire Ins. Co. v. Saving Machine Co., 41 Mich. 131; Hall v. Loomis, 63 Mich. 709; Alt v. Banholzer, 39 Minn. 511 (12 Am. St. Rep. 681); Barton v. Drake, 21 Minn. 299. The defendant cites, to support his contention, Heaton v. Sawyer, 60 Vt. 495; In re Romero’s Estate, 75 Cal. 379; Prater v. Prater, 87 Tenn. 78 (10 Am. St. Rep. 623); Wiggin v. Buzzell, 58 N. H. 329. In Heaton v. Sawyer the decree settled all the rights of the parties. The care of the children was given to the wife, and a certain sum was decreed to be paid by the husband to her in lieu of all her rights in the estate. The same remark applies to Wiggin v. Buzzell. In Prater v. Prater the wife had deserted her husband, eloped with another man, had taken up a permanent residence with him in another State, and had continued to live in adultery with him until her husband’s death. In Re Romero’s Estate it was held that a homestead cannot be set apart from the estate of a decedent to minors who are not the children of decedent either in fact or by adoption. These cases do not support the contention. 3. An attempt was made to show an abandonment of the homestead by Mrs. Louw. This is based upon two letters, dated, respectively, in August and September, 1880, which are claimed to have been written by her. The former purports to be signed “Sarah M. Louw.” The other has no signature. These letters were written after she had been compelled to leave her husband and his home, and while proceedings for divorce were pending. Neither letter says a word about abandoning her right to the homestead. The first states that she will not go back to live with him, and that he can use. the place to help himself with, and she will have what she took away. The [668] second letter says nothing whatever about her intentions. Giving these letters the* broadest significance, they do not amount to an abandonment. She, soon after, filed her petition for alimony, and prosecuted her suit to a decree. But an abandonment by husband or wife does not validate a conveyance of a homestead without the other’s signature. Belden v. Younger, 76 Iowa, 567; Bruner v. Bateman, 66 Iowa, 488. 4. Defendant insists that only the husband, widow, or children can take advantage of this homestead right, and maintain a suit to protect it; and that, since neither in this case disaffirmed the conveyance, the complainant has no standing. Complainant stands in the shoes of Mrs. Louw. She chose to have the property sold upon execution on a decree rendered in her favor. This act estopped her to set up her homestead right as against the purchaser at the sale and his grantees. Complainant is in possession under her, and as her grantee under the execution sale. He succeeded to her rights. 5. Defendant attacks the regularity of the execution sale, and sets up alleged jurisdictional defects. If complainant rested his rights upon this sale, it would be necessary to determine its validity. He, however, has shown title by adverse possession. Defendant insists that such title is not claimed by the bill, and that, therefore, complainant cannot recover on this ground, and cites Moran v. Palmer, 13 Mich. 367. The decision in that case was based upon the fact that complainant, after proofs were in, sought relief upon equities springing from estoppels in pais, which were not even referred to, either in the bill or the answer. The case, however, was remanded, with permission to complainant to amend his bill. In the present case complainant sets up the date of a sale, and the immediate taking of possession thereunder (which was more than 15 years before the commencement of the suit), the continuance of such possession, and states that he and his grantors have been in “ actual, continuous, and uninterrupted possession” of the premises. An adverse [669] possession is therefore set up, and can be taken advantage of under the prayer for general relief. The decree is affirmed, with costs. The other Justices concurred.