Billingsley v. Niblett

Campbell, J., delivered the opinion of the court. The deed of trust ivas not invalid because the wives of the grantors did not join in its execution. It was made to secure the purchase-money of the land, agreed to be paid by the grantors. The claim of plaintiff ih error is paramount to the claim of a “homestead.” The land was a subject of legal controversy. Plaintiff in error sued to recover its possession. The grantors ih the deed of trust surrendered to the claim asserted by plaintiff in error in court, and purchased his title by promising to pay him a sum of money, and securing its payment by a deed of trust on the land which was the subject [540] of the suit. Au attack was made on their title, which so threatened as to induce them to obtain security from harm by purchasing the hostile claim. It is now said that they surrendered to an imaginary foe, and bought a title which'was incapable of disturbing the perfect title they had before, and under which they were secure in their possession of the land. This shows only that they might have declined to purchase the title of plaintiff in error, and does not change the fact that they did purchase, and do now owe the purchase-money of the land conveyed by the deed of trust; and it is not to be denied that the “ homestead claim ” is subordinate to the claim of the vendor for the purchase-money of the land. It is not a subject of inquiry, whether plaintiff in error had a good title or not, or what would have been the result of his suit. The defendants in that suit preferred a purchase of his title to a trial of it. They had the right to negotiate and settle, rather than to contest. They recognized the validity of the title of the plaintiff so far as to agree to pay for it, and to accept his deed, and to pledge the land to pay the price of extinguishing his title. He was a vendor, and they were vendees. That he made a quitclaim instead of a warranty deed makes no difference. The bill in this case is constructed on the assumption that the act of the 18th of April, 1878 (Acts, p. 78), vests in the wife of the exemptionist an interest in “ his homestead.” That is a mistaken view. The statute has no such effect. It does not attempt to divest the husband’s title to, or "interest in, “his homestead.” It does not vest in the wife any interest in it. It requires the joinder of the wife in a conveyance of the homestead of the husband. His power to dispose of “ his homestead ’ ’ is fettered by the requirement that his wife shall consent and join in his conveyance of it. She thus has a negative on his disposition of “his homestead,” byrefusing to “join in such conveyance.” The power of the husband to dispose of his land, not being “ his homestead,” was not affected by the act cited. " [541] There can be no homestead rights, as against the claim for the purchase-money of the land on which the home is, because ownership is a condition precedent to the existence of a homestead. The right of the husbands who executed this deed of trust, to bind the land to pay the price which secured it to them, was unaffected by the act of the 18th of April, 1873, supra, and the bill should have been dismissed. Decree reversed and bill dismissed.