Dickson v. Cooper ( 1917 )

fcsTEVENS, J.

GAGEs^TOHd-1’ gagó ™yr nonexempt properjoinder 'by The plaintiff W. M. Dickson was a tenant of the defendant J. E. Cooper’s during the year 1915, and his co-plaintiff is his wife. Plaintiff agreed to pay the defendant, as rental for the demised premises, $1,825, and otherwise became heavily indebted to the defendant. On Se|>tember 4, 1915, plaintiff executed his promissory note to defendant for $4,874.34, due February 1, 1916. At the time of the execution of the above note and mortgage, the plaintiff and- his wife, who had clandestinely left the state of Iowa after disposing of the larger part of all his personal property, except that taken with him, went to Andrew County, Missouri, probably to reside. He was pursued by the defendant, who instituted an attachment suit in that county, where plaintiff executed the note and mortgage in question, covering all of' the personal property he had in Missouri and all that he left undisposed of in Iowa, for the purpose of securing the payment of said note. At this time, the property was in possession of the sheriff under a writ of attachment.

The note is dated “Conway,” and made payable at the Farmers Bank, Conway, Iowa. The mortgage describes the parties as residents of Iowa. A stipulation was entered into between the parties by which plaintiff agreed to return to Iowa, and, upon the return of the property to Iowa, the attachment was to be released. The note and mortgage were delivered to defendant immediately upon the execution thereof, and the mortgage later recorded in Taylor County, Iowa. Thé property was returned to the demised premises, and plaintiff and his wife returned and resided thereon. Later, when defendant undertook to enforce a sale of the mortgaged x>roperty, this suit was brought to enjoin the enforcement of the same, upon the ground that plaintiff was a resident head of a family, and that his wife did not sign the mortgage, and that the property sought to be sold was exempt to him. The evidence satisfactorily shows that plaintiff left Iowa with the intention of avoiding payment of the indebtedness due the defendant, and that, at the time of the execution of the note and mortgage, he was, whether a resident of Missouri or not, a nonresident of the state of Iowa.

The contention on behalf of appellee is that the contracts executed were to be performed within the state of Iowa, were executed in contemplation of the immediate return of plaintiff and the property in question to the state of Iowa, and that, therefore, the contract is, in its inception, an Iowa contract, and must be construed according to the laws of this state, and that, as a mortgage up oh exempt property is not valid in Iowa unless signed by the wife, the mortgage, in so far as the property in controversy is concerned, is void, as it is conceded that the same would be exempt to plaintiff from sale' under a general execution.

Appellant contends that, at the time of the execution of the contract, plaintiffs were residents of Missouri, and that, under the laws of that state, it was not necessary to the validity of the mortgage that same be signed by the wife, even though covering property exempt in that state from execution. In the view we take of the matter, it is immaterial whether the mortgage is construed according to the laws of Missouri or the laws of Iowa. If construed according tp the former, it is clearly valid, .and if construed according to the laws of Iowa, is is likewise valid. Without reference to the laws of which state the contract is construed under, its validity must be determined as of the time same was delivered and became effective, if at all, as a lien upon the property.

It is not claimed that the mortgage was invalid under the laws of the state of Iowa on any other ground than that the property was exempt from general execution at the time of the institution of this suit. As to all other property described in the mortgage, it was valid without the signature of the wife. The question, then, conceding that the contract must be construed according to the laws of Iowa, is: Did the mortgage, at the time of its execution and delivery, become a valid lien upon the property described therein? Suppose the property covered by the mortgage in question had been returned to Iowa, but plaintiffs had continued to be nonresidents of this state, or suppose the mortgage had been executed by nonresidents of this state upon property wholly within the state of Iowa, and, by express provision, the contract was to be performed in this state, aijd the mortgagors did not subsequently become residents thereof, would not the mortgage in either case have created a valid lien upon the property? The exemption laws of this state are to residents thereof only, and the question presented upon this appeal is, Did the mortgage, executed at a time when plaintiffs were nonresidents of the state of Iowa and could make no claim of exemptions in this state, become a valid lien upon the property? There would seem to be but one answer to this question. If, then, the mortgage became a valid lien upon the property at the time of its execution, the only remaining question for consideration is, Was the lien destroyed by the subsequent removal of plaintiffs to the state of Iowa?

It is contended by counsel for appellees that exemption statutes are to be applied as of the time of the enforcement of the contract. No doubt, the necessity for claiming the exemption did not arise until the mortgagee sought to enforce the lien of his mortgage. No authority is cited to the point that a valid lien upon personal property ceased to be such by the removal to the state of Iowa of the mortgagor, who was a nonresident when the instrument was executed. The cases cited by counsel are not in point. It is undoubtedly true that the judgment debtor need not claim the exemption of his property when a sale is threatened under general execution, until a levy has been made thereon. The right to the exemption would depend upon the facts shown to exist at the time of such levy, but that is not the situation presented in this case. Át the time of the execution of the mortgage, plaintiffs were nonresidents of the state of Iowa and could make no claim to exemptions in this state. • The mortgage was valid under the laws of Iowa when executed, and a valid lien was created thereby upon the property in question without the wife’s joining therein, and was not affected by plaintiffs’ subsequent removal to Iowa. The property is, of course, exempt from sale under a general execution, but is subject to the lien of appellant’s mortgage.

For the reasons stated, the judgment of the lower court should be, and is, — Reversed.

Gaynor, C. J., Ladd and Weaver, JJ., concur. .