Godfrey v. Thornton , 46 Wis. 677 ( 1879 )

RyAN, O. J.

Unlike the case of Hait v. Houle, 19 Wis., 472, there is here no doubt of the wife’s voluntary signature to the mortgage; no question of deceit in procuring it. The wife here frankly testifies that she signed, and knew she was signing, a mortgage of the homestead; that no deception was practiced to secure her signature; and that she supposed she was executing and acknowledging it as the law requires. But it appears that she did not sign the mortgage in the presence of the attesting witnesses, and did not acknowledge it.

There is here no question of the release of the wife’s dower in the mortgaged premises. It is conceded that the mortgage is not so executed by the wife as to release it. The only question is, whether the signature of the wife to the mortgage, as made, operates to give validity to her husband’s mortgage of liis estate in the homestead.

The statute provides, that no mortgage or other alienation by a married man of his homestead shall be valid without the signature of his wife to the same. And the radical question in the case is, whether this provision operates to vest any estate in the wife, living the husband, in his homestead; or whether it operates only as a disability of the husband, living the wife, to alienate his homestead without her consent, evidenced by her signature to his alienation.

The latter certainly appears to be the plain construction of the provision, and is expressly given to it in Platto v. Cady, 12 Wis., 461; almost equally so in McCabe v. Mazzuchelli, 13 Wis., 478; Spencer v. Fredendall, 15 Wis., 666; Myers v. Ford, 22 Wis., 139; West v. Ward, 26 Wis., 579, and perhaps in Riehl v. Bingenheimer, 28 Wis., 84.

The law has not hitherto undertaken to prohibit a husband to change his domicile without his wife’s consent, or to release the wife from her reasonable duty to accompany her husband upon his change of domicile. Gleason v. Gleason, 4 Wis., 64. Upon such change, the husband’s former place of residence ceases to be a homestead, and he may mortgage or convey it without his wife’s signature, subject to her inchoate right of dower. The husband cannot, by his own act, divest his wife’s right of dower, because it is an estate. But he can, by his own act, free himself from his disability to mortgage or convey his homestead without the signature of his wife, because his disability vests no estate in her. And this is the plainer, because the husband, abandoning his homestead and so freeing himself from his disability to alienate it, has no duty imposed upon him to acquire another to which the disability would attach. The statute authorizes the husband to insure the dwelling house, the home on which the right of homestead rests; and, upon loss by fire, alone to receive the amount of the insurance, without imposing upon him any duty to repair or rebuild, as absolutely as he may receive the amount of insurance on his other property, in which his wife has no other interest except her dower. Upon the death of the husband intestate, without children, the statute provides that the homestead shall descend in fee to his widow; upon his death intestate, leaving children, to his widow during widowhood only. But it expressly authorizes the husband to devise the homestead free from all right of the wife in it as a homestead. And it has a still more important bearing on the question, that, when the husband is seized of the homestead, the statute throughout deals with him as the owner. "Whether husband or wife be seized of the homestead, the statute does not disturb or affect the legal title. If the wife be seized, she may alienate it at ber pleasure. If the husband be seized, he cannot alienate it without the wife’s consent, but his title is otherwise unchanged. The court has nothing to do with the wisdom or justice of the statute. Its only duty is to give it construction as it is written.

And so it is quite apparent that the statutory disability of the husband goes only to give a personal control over him to his wife in his alienation of his homestead. The statute operates only by way of retort on the husband, for some of the disabilities of the wife at the common law. This view is implied in the cases already cited, and is expressly affirmed in Hoyt v. Howe, 3 Wis., 752; Green v. Lyndes, 12 Wis., 404; Read v. Sang, 21 Wis., 678.

This construction of the statute was not intended to be disturbed, and is not disturbed, by the late case of Weston v. Weston, ante, p. 130. That was a very peculiar case. The possession of the homestead had been assigned to the wife by way of provision for her, pending her action for divorce against her husband. A proceeding had been instituted by the father and brother of her husband to enforce a mechanic’s lien against the homestead, with some appearance of collusion to defeat the wife’s possessory right. And this court held that she was entitled to be admitted as a party to defend. ■ The judgment went mainly on her inchoate right of dower; but her pos-sessory right under the order in the divorce suit had undo ubt-edly a proper influence upon it. The opinion, indeed, contains some unguarded expressions, which might be construed as throwing some doubt upon the position here held. But the court did not consider or pass upon any right of the wife founded on the disability of the husband.

Upon a careful examination of the cases in this court, very few dieta have been found implying doubt of the view now taken. In Kent v. Agard, 22 Wis., 150, speaking of title derived under a mortgage of husband -and wife, the late Mr. Justice PaiNE says that.it was title to the homestead right of tbe husband and wife, which did. not pass by a prior deed for want of the wife’s signature. The expression is, in effect, perhaps accurate enough, because it includes the wife’s right of dower. So in Anderson v. Coburn, 27 Wis., 558, and again in Wochoska v. Wochoska, 45 Wis., 427, the homestead is called the homestead of the husband and wife. So in Campbell v. Babcock, 27 Wis., 512, a case turning on the right of the wife to set up usury against a mortgage of the homestead formally executed by both husband and wife, it is said by Mr. Justice LyoN that, unless the wife joins in the execution of a valid conveyance or mortgage of the homestead, her homestead rights are not affected. This was obviously said in view of the fact that the mortgage in that case was duly executed and acknowledged by the wife, releasing her right of dower. So in Hanson v. Edgar, 34 Wis., 653, where the mortgage was executed by the husband alone, without any signature of consent by the wife, Mr. Justice Cole remarks that the mortgage was not signed by the wife, and was invalid because the wife did not join in it. This dictum looks both ways, clearly showing that the question was not in the mind of the learned judge. But these, and perhaps like loose phrases elsewhere, are not used in reference to the question before the court; are mere inaccuracies of expression, obiter dicta, and are of no weight in determining the question.

The husband, therefore, being the owner, living the wife, is seized of the homestead in fee, as of his other realty; and is placed, by the provision in question, under a mere personal disability to alienate his homestead without the signature of his wife as an evidence of her consent. See Gee v. Moore, 14 Cal., 472; Bowman v. Norton, 16 Cal., 213; Himmelmann v. Schmidt, 23 Cal., 117; Stewart v. Mackey, 16 Texas, 56.

This view goes far to simplify the precise question, and to account for the peculiar language of the provision in question.

Whenever the wife joins with her husband in a mortgage or conveyance of realty of which both are seized, or to release her dower in realty of which he is seized, whenever the wife executes a mortgage or conveyance to pass her separate estate, she is required to execute and acknowledge the deed, according to the general provisions relating to all grantors, so as to admit it to registry. In the provision under consideration, the mortgage or alienation is that of the husband, which shall, not be valid without the signature of the wife to the same. It would be a violation of all judicial rules of construction, to overlook this contrast of language, going to the substance of the thing to be done, or to confound one provision with the other. It is apparent that the legislature has not done so, although it appears that this court once did. The one provision clearly relates to conveyances by a wife, which she must execute, whether the husband join in the deed or not; and the other to mortgages or conveyances by the husband, in which the wife does not join, but which the husband cannot execute without her written assent. In the one case, the wife passes her own estate, actual or inchoate; in the other, she passes no estate, but simply assents to her husband’s passing his. The one is a conveyance by the wife; the other is the wife’s signature to relieve the husband from disability to convey his own estate. The statute requires the wife’s conveyance to be witnessed and acknowledged so that it may be recorded; but requires the wife’s consent to her husband’s conveyance of his own estate, to be evidenced only by her signature. If the statute had intended the wife to join in the mortgage or alienation of the homestead, presumably it would have said so; if it had intended the signature of the wife, which it requires, to be witnessed and acknowledged, presumably it would have said so; then all the formalities necessary to entitle a conveyance to record should have been complied with. But the statute does not say so, and the court cannot do violence to the language which it uses, and torture the mere signature of the wife, by way of assent, into joining in the conveyance and formally executing and acknowledging it or the signature by which she assents to her husband’s alienation of his own estate. The different provisions are substantially embodied in sec. 2208 of the present revision; and the contrast in the language, the contrast of the thing prescribed, cannot fail to strike the most casual reader.

The court is very strongly confirmed in these views by the case of Wynn v. Ficklen, 54 Ga., 529. The statute before the court in that case, providing for conveying realty by way of security, simply required the wife’s consent; did not require her to join in the conveyance, or prescribe any form in which her consent was to be given. The conveyance before the court was absolute on its face, but was shown to have been given by way of security, and was not executed by the wife; but appended to the deed was a written consent, signed by the wife, witnessed by her husband only, and not acknowledged. The consent was held to be sufficient to give validity to the deed.

The language of the statute in Minnesota is substantially identical with the provision under consideration. And therefore the case of Lawver v. Slingerland, 11 Minn., 447, is perhaps still more satisfactory. The court says: “The signabwre alone of the wife is required. The mortgage spoken of is, £ a mortgage by the owner, if a married man,’ not a mortgage by the owner and his wife. The signature is required in token of her assent to a mortgage by the owner, her husband, not for the purpose of making her a party to the mortgage in the same sense in which her husband is a party. It is objected, that to hold that the signature is sufficient, without attestation or separate acknowledgment, is to introduce an anomaly into our law relating to the conveyance of real property or interests therein by married women. It was in the power of the legislature to fortify the homestead by whatever safeguards were deemed necessary. If, in the exercise of legislative discretion, it was deemed only necessary to provide that the homestead should not be mortgaged without the signature of the wife, no consideration of public policy can authorize us in putting such construction upon the law as will render the attestation of the signature, or an acknowledgment by the wife, indispensable, however imperfect in our opinion may be the protection which any other construction would throw around the homestead.”

The court was referred to several cases turning upon defective execution of conveyances by married women. In the view here taken of the statute, these cases can give no light on the question. The statute of Tennessee expressly requires the wife to join in the conveyance of the homestead. And the learned and able Chancellor CoopeR, of that state, cites a dictum, of C. J. NicholsoN, in a case apparently not yet reported, that the wife has a right in the land, connected with the right of possession; and adds for himself, that such a right, if not an estate in an absolute sense, is one for all practical purposes. Hoge v. Hollister, 2 Tenn. Ch., 606. This court would hesitate to hold so under such a statute as that of Tennessee, and certainly cannot hold so under the statute of this state. The only case in another state to which the court was referred, in conflict with the view here taken of the wife’s signature, is Fisher v. Meister, 24 Mich., 447. This court entertains profound deference for the judgments of that. But the question under consideration, though passed upon iii that case, does not appear to have been considered. The court contents itself with quoting the statute providing for the signature of the wife, and adding, “ this plainly requires her to be a party to the conveyance.” There is no discnssion, no authority cited. This case, like Hait v. Houle, supra, appears very much like begging the question.

There is no doubt that the views of the provision here taken must be held to overrule Hait v. Houle. That was a case of gross fraud and imposition on the wife, and the judgment is undoubtedly right. The evidence showed, in effect, that the wife did not in any proper sense sign the mortgage. Her signature was a fact quite as much disproved as her acknowledgment. And the entry in Mr. Justice Cole’s calendar is, that the judgment was reversed because the mortgage was not signed and acknowledged by the wife. Taking that for the ground of the judgment, the acknowledgment was mere redundancy. But the late distinguished chief justice, whose opinions are so generally accurate, puts the judgment upon the failure of the wife to acknowledge the mortgage, and reaches per saltum the conclusion that acknowledgment is essential. This is his language: “The mortgage, not having been acknowledged by Mrs. IToule, is inoperative against her. A deed defectively executed, or not acknowledged, may be enforced as against the husband, or other person not under disability, as an agreement to convey. But as against a married woman, a deed not acknowledged by her, or otherwise defective, will not be enforced even in equity. Martin v. Dwelly, 6 Wend., 9; Carr v. Williams, 10 Ohio, 305. As to Mrs. Houle, therefore, the mortgage is wholly inoperative. It does not convey her interest in any of the land. And as it is declared by statute that a mortgage of the homestead shall not be valid without the signature of the wife, it seems to follow, as to the forty acres comprising the homestead, that the mortgage cannot be enforced against either of the mortgagors.”

It seems to have been overlooked that the disability, so far as the fee was concerned, was the disability of the husband, and not of the wife. And it is quite apparent that this great jurist overlooked the difficulty, or he would have dealt with it, one way or the other, in his habitual thorough and masterly style of discussion. It was not his habit to dispose of grave questions in so curt and arbitrary a manner. And, indeed, his disposition of the question under discussion is rather to be inferred from what he says than said; assumed rather than established.

The learned counsel of the respondents reviewed, with great learning and ability, the history of the law enabling married women to convey, and of the solemnities of acknowledgment required from time to time of their deeds, with a view of showing that the signature of the wife, required by the statute, was within the policy of the law covering all alienations by married women. His argument was interesting and instructive, and would have had great weight with the court, but for the fact that the statute gives the wife no estate by the disability imposed on the husband, but only a personal control over him in the alienation of his own estate.

If this were all otherwise, this court would not hesitate to follow the supreme court of Michigan in Norton v. Nichols, 35 Mich., 148, and hold both husband and wife estopped from impeaching the mortgage.

“This bill does not show that the mortgage was executed by Mrs. Norton unwillingly, or under any compulsion or influence, nor that she would not and did not acknowledged freely. The whole ground for assailing the mortgage, which was in all respects fair and voluntarily made, for a good and valuable consideration, is the technical claim that the acknowledgment ■should not have been taken in the husband’s presence.

“Mrs. Norton knew the purpose of the mortgage, and that ■the mortgagee relied on it as valid, and that it was valid on its face. Instead of attempting to repudiate it and give timely information to Mr. Nichols that the mortgage was not what ■she had done her best to make it appear, she gave no information, and allowed her husband to reap all the benefits of the loan, only objecting when steps were taken to enforce it.

“Whatever may be the rule concerning the formalities needed to bind married women, there is no doubt that they may be estopped by their deliberate conduct as well as any one else. The cases of Sharpe v. Foy, 4 Ch. Ap. (Law. Rep.), 35, and In re Lush’s Trusts, 4 Ch. Ap. (Law Rep.), 591, are analogous and in point. And the circumstances of this case show that the defendant would be grossly defrauded by the complainant’s course, if this mortgage is allowed to be set aside. There is no equity whatever in the bill, which on its face is an attempt, without any merit, to evade an honest claim which could never have been created unless the complainants had both done what they could to create confidence in it.

“If a court can ever set aside a conveyance for a mere omission, which is made out by contradicting an official act, where there has been no fault in the claimant — a point which we have no occasion to discuss, —it certainly will not do so when the party complaining has not only consented to the act, but has never taken any course to repudiate it, or to save the grantee from the effects of confidence in its validity.”

Every essential word of this opinion applies with equal force to the present case.

It is not out of place to remark here that the solemnity of acknowledgment has largely degenerated into farce, as appears in Hait v. Houle, in this case, in Norton v. Nichols, and in many others. It too often appears that officers authorized to take acknowledgment of deeds, pay little heed • to their duty, and give false certificates of acknowledgment..

The question- is' suggested in the briefs of counsel, that the mortgage security was affected in the proceedings in the bankruptcy of the mortgagor. The record discloses nothing done by the mortgagee to relinquish or affect the lien of his mortgage. Indeed, counsel appear' to have had little faith in the suggestion.

A graver question may arise from the bankruptcy, upon the judgment of foreclosure, whether judgment for deficiency can go against the bankrupt. That question was not argued, is not necessary to this judgment, and will not be considered. If it should arise in the further progress of the cause, it may be brought here and argued on a subsequent appeal.

The court gladly acknowledges the very marked ability with which this appeal was argued by the distinguished counsel on both sides.

By the Court.— The judgment is reversed, and the cause remanded to tbe court below witb directions to enter a judgment foreclosing the mortgage.

Taylob, J., took no part.