Balkum v. Wood

58 Ala. 642

• Court: Supreme Court of Alabama
• Decided: December 15, 1877
• Status: Published

Opinion

STONE, J.

1'. When tbe mortgage of Watson’s homestead,-jinder wbicb appellant, claims, was executed March 13th,-1875, tbe act to “regulate property exempted from sale for the payment of debts,” was operative. — Pamph. Acts 1872-3, p. 64. That statute declares that “no mortgage or other alienation of any homestead exempted by this act, by the owner thereof, if a married man, shall be valid, without the voluntary signature and assent of the wife, which voluntary signature and assent must be shown by the examination of the wife, separate and apart from the husband, touching the same, had before a Circuit or Supreme Court judge,” &e. Two facts are, by this statute, rendered indispensable to the mortgage by a married man of his homestead; the voluntary signature and assent of the wife, and this must be shown, and can only be shown by her examination touching the same, separate and apart from her husband. Without these, it is as if it had not been attempted, void.

2. A mortgage of the homestead, without these formalities, is not regarded as a conveyance imperfectly executed, which may be afterwards perfected. Until properly acknowledged, it is no instrument- — a nullity. Acknowledgment afterwards can have no retroactive effect. The most it can possibly do, is to constitute it a conveyance on and after the properly certified acknowledgment. — McGuire v. Van Pelt, 55 Ala. 344, and Miller v. Marx, Ib. 322.

The rulings of the Circuit Court were in harmony with these views.

Affirmed.