Nielson v. Peterson , 30 Utah 391 ( 1906 )

McCAKTY, J.,

after mailing the foregoing statement of the case, delivered the opinion of the court.

Appellant insists that the mortgage is absolutely void, for the reason that she did not join in its execution and was in no way a party to it. On the other hand, it is contended that Otto Peterson, the mortgagor, had a right to mortgage the land in question, notwithstanding it was occupied by himself and family and was their only home, subject to the statutory one-third interest of his wife, which interest, respondent contends, is an inchoate and contingent interest which would take effect only upon the death of Otto Peterson, should his wife survive him.

The sections of the Revised Statutes of 1898 of this state relating to homesteads, so far as material here, are as follows:

“See. 1147. A homestead consisting of lands and appurtenances, which lands may he in one or more localities, not exceeding in value with the appurtenances and improvements thereon the sum of fifteen hundred dollars for the head of the family, and the further sum of five hundred dollars for his wife, and two hundred and fifty dollars for each other member of his family, shall be exempt from judgment lien and from execution or forced sale, except as provided in this title.

“Sec. 1148. If the homestead claimant is married, the homestead may be selected from the separate property of the husband, or, with the consent of the wife, from her separate property.

“Sec. 1149. Any person who is the head of a family may make a declaration of homestead in the manner provided in the next two sections, but a failure to make such declaration shall not impair the homestead right.

“See. 1150. In order to record a homestead, the husband or other head of the family, or, in ease the husband has not made such selection, the wife must execute and acknowledge a declaration of homestead, and file the same for record in the office of the recorder of the county or ■counties in which the land is situated.

“See. 1151. The declaration of homestead must contain: (1) A statement showing the person making it to be the head of a family; or, when the declaration is made by the wife, showing that her husband has not made such declaration. (2) A description of the premises. (3) An estimate of their cash value.”

The foregoing provisions of our statutes relating to the exemption and selection of homesteads are, in the main, taken from the [Revised Code of North Dakota of 1899, section 3608 of which is as follows:

“The homestead of a married person cannot he conveyed or incumbered, unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife.”

The Codes of California, Iowa, Nebraska, and several other states contain provisions almost identical with section 3608 of the Devised Code of North Dakota of 1899. The courts of those states have uniformly held that under this provision a husband cannot legally incumber the homestead, unless his wife joins in the execution and acknowledgment of such conveyance or incumbrance.

Section 1155 of the Devised Statutes of Dtah of 1898, provides:

“If the owner is married, no conveyance or incumbrance of, or contract to convey or incumber, the premises selected and recorded as a homestead prior to the time of such conveyance, incumbrance, or contract, is valid unless both the husband and wife join in the execution of the same.”

By a comparison of this provision of the statutes- of this state with the corresponding provision of the Codes of the states mentioned, it will be seen that that portion of section 1155 of our Code which we have italicized is not incorporated in the provision of the Codes relating to the same matter of the.states referred to. Therefore, the decisions of those states bearing upon the decisive question under consideration, viz., the validity of the mortgage, are of but little, if any, value as a guide in construing section 1155 of our own Code. It would seem, however, that, if the Legislature had intended this section to receive the same construction as is given the corresponding section of the Codes of the states mentioned, it would not have limited the conveyances, in-cumbrances, etc., therein mentioned to such premises only as may be “selected and recorded as a homestead prior to the time of such conveyance,” etc. It is a well-settled rule, and one that has been recognized and followed in this state, that a married man who holds the legal title to the homestead may, unless prohibited by statute, convey or incumber such homestead (subject to his wife’s one-third interest in case she survives him), without the wife joining in the execution of the instrument. (Cook v. Higley, 10 Utah 228, 37 Pac. 336; 15 A. & E. Enc. Law [2 Ed.], 665-666; Waples, Homestead & Exemp. 370; Thompson, Homestead & Exemp. 230.)

The foregoing provisions of the statute do not confer upon the wife a vested estate or property right in the premises claimed as a homestead when such premises are owned by, and the legal title thereto is in, the husband. (A. & E. Enc. Law [2 Ed.], 668.)

“The wife has not an estate in homestead during the life of the husband, but a mere right of occupancy, or the right to have same exempted from her husband’s debts, except where she unites in the conveyance, with privy examination; but, by uniting, she does not convey an estate of which she is seized, but merely consents that her husband may convey his estate, so as to waive her right to an exemption.” (Creath v. Creath, 86 Tenn., 659, 8 S. W., 847.)

In the case of Gee v. Moore, 14 Cal. 472, this'same question was involved (the nature and extent of the wife’s interest in the homestead), and in the course of the opinion in that case the court say:

“It is the alienation by the owner, if a married man, which the statute declares shall be invalid with out the signature of the wife. The power of alienation, and not the nature of the husband’s estate, is thus affected. And this power is restricted only so far as it may be necessary for the protection of the homestead. The invalidity only goes to the extent essential to tliis object. The husband can neither mortgage, sell, or otherwise alienate, the homestead, without the signature of the wife, so as to deprive themselves of the benefit of the humane and wise provisions of the law. For this purpose, the restriction was designed, none other. Subject to the protection thus extended, the absolute power of the husband continues.” '

In Jenness v. Cutler, 12 Kan. 500, it is said:

“It requires no instrument in writing to create such an interest, nor does it require any instrument in writing to destroy it. A merely going upon the premises, and occupying the same as a homestead, will create the interest. The abandonment of the premises as a homestead will destroy the interest; and, if the wife should die while occupying the premises as a homestead, she would have nothing that would descend to her heirs, or go to her executors or administrators, and nothing that she could devise or bequeath. The whole estate would continue to belong to her husband, and after her death he could sell and convey the same by a deed executed by himself alone.” (Smith v. Sherck, 60 Miss. 491; Godfrey v. Thornton, 46 Miss. 677, 1 N. W. 362; Stewart v. MacKey, 16 Tex. 56, 67 Am. Dec. 609; Howe v. Adams, 28 Vt. 541.)

Tbe only restrictions placed upon a married man in tbis state to prevent bim from disposing of or incumbering tbe homestead, without bis wife joining in tbe execution of tbe instrument by which it is sought to convey or incumber such homestead, are contained in section 1155. As we have heretofore observed, this section renders a conveyance or in-cumbrance of a homestead by a married man void only when such homestead has been selected and recorded prior to such conveyance or incumbrance, and both husband and wife have not joined in the execution of the instrument by which the homestead is conveyed or incumbered; but the statute nowhere prohibits the husband, when he holds the legal title to the homestead, from conveying or incumbering it when no declaration of homestead has been made and recorded as provided in sections 1150 and 1151, supra. While it is evident that the Legislature intended to place it within the power of the wife to protect the home, when, because of the husband’s improvidence, financial misfortune, or for any other reason, he seeks to convey or incumber the homestead without her concurrence, we think it is also apparent that, under the provision of section 1155, in order for the wife to exercise tbe right thus given, her, she must execute and acknowledge a declaration of homestead and file the same for record as provided in sections 1150 and 1151. In the case before us no declaration of homestead was' made and recorded by either the husband or wife. Therefore the mortgage under consideration was valid, and the foreclosure and sale of the premises transferred the title from the mortgagor to the mortgagee, subject to the right of redemption and to the intervener’s (wife of mortgager’s-) one-third interest should she survive her husband, the mortgagor.

The judgment is affirmed, with costs.

BAETCH, C. J., concurs.