Long v. Mostyn , 65 Ala. 543 ( 1880 )

SOMERYILLE, J.

— -The validity of the mortgage introduced in evidence by the plaintiff, for the purpose of establishing his title to the premises sued for, is the only question raised in this case by the rulings of the Circuit Court. This instrument embraces the homestead of the mortgagor, upon which he resided, with his family, at the date of its execution, and also at the time of his death. The wife’s name does not appear in the body of the conveyance, as one of the grantors, but only in the concluding clause, which is as follows : “ In witness whereof, we, Thomas W. Mostyn (and my wife, Sarah A. Mostyn, who joins in this conveyance for the sole purpose of conveying whatever right of dower shé may have in and to the aforegranted property), have hereunto set our hands and seals, this 24th day of January, A. D. 1874.”

It was said by this court in Harrison v. Simons, 55 Ala. 510, that the mere signature of a peggon to a deed, without being named in the conveyance as one of the grantors, passes to the grantee no interest or title to the lands which may at the time be owned by such subscriber. But in Dooley v. Villalonga, 61 Ala. 129, this principle was held not to be applicable to the signature of the wife to a deed or mortgage of the husband, conveying a homestead owned by him. This conclusion is based upon the fact, that the title of the property was in the husband alone, and that it is not a conveyance by the wife that is required to give validity to the husband’s act, but only her “ voluntary signature and assent” to such conveyance as may be legally executed by him.

But the mortgage here in question contains no such “ voluntary signature and assent” of the wife as is required, for another and different reason. It was made with no view to convey the right of homestead, to which the law entitled her in certain contingencies. Its sole purpose is expressly stated to be, the relinquishment of her dower, which is a separate and distinct right from that of exemption, whether constitutional or statutory. The intention to do more, or to impart to the mortgage any additional scope, is repudiated by forcible implication, on the strength of the maxim, JExpressio unius est exclusio alterius. We can not here give it a meaning which the parties have agreed that it shall not have, where they have stipulated, as plainly as the clearness of language permits, that it shall affect only her right of dower. We know of no rule of construction, which permits us to say that it shall affect both her right of dower, and her right of homestead, each of which is equally contingent.

The appellant was not prejudiced by the rulings of the Circuit Court, and its judgment is therefore affirmed.