Duncan v. Moore

Cooper, J., delivered the opinion of the court. We yield to the urgent solicitation of counsel to pass upon both questions presented by this appeal, though the decree might be affirmed upon the single point on which we are advised the bill was dismissed in the court below, viz., that, conceding the invalidity of the conveyance sought to be annulled, the complainant is not of right entitled to the intervention of a court of equity, except upon condition of himself doing equity. It appears from the record that the complainant being indebted to the defendant Moore executed a deed of trust upon his homestead as security for the debt due, but his wife, who was at the time living with him on said land, did not sign the deed. Afterwards, at the instance of the creditor, and, so far as appears, without the consent of her husband, she executed a separate conveyance to the creditor of her interest in the homestead. The question presented is whether this subsequent deed of the wife is sufficient to give validity to the former invalid encumbrance by the husband. By the code (§ 1258) it is declared that, “no conveyance, mortgage, deed of trust or other encumbrance upon the homestead, exempted from execution, shall be valid or binding, unless signed by the wife of the owner, if he is married and living with his wife.” There is much force in the argument of defendant’s counsel that the statute does not require a joint deed of husband and wife for the conveyance of the husband’s homestead, but only that the wife should “sign” the husband’s deed to signify her consent to the disposition made by the husband of his property; that the substantial thing is the written evidence of such consent, and that this may be as ceilainly shown by a separate instrument as by signing the deed of the husband. The present controversy does not call for a decision of what would be the effect of such separate deed made by the wife under the direction or consent of the husband, and we express no opinion on the subject. We are, however, of opinion that whatever be the form, it is at least essential to show the contemporaneous assent of both husband and wife to the conveyance. To permit the wife, without the knowledge or consent of the husband, to give validity [139] to an invalid encumbrance or conveyance would be in effect to give her the power of disposal rather than the veto power provided by the law. Decree affirmed.