Blume, Justice.
On January 28, 1921, J. A. Delfelder and Evelyn M. Delfelder, his wife, executed to John Hay a mortgage covering apparently all of the real property owned by the mortgagors in Fremont County, Wyoming, including the home of the mortgagors, to secure the sum of $225,000, which both mortgagors agreed to pay. Other security on live stock was given in addition. The mortgage above mentioned contained the clause that the mortgagors expressly waived and released any and all rights, benefits, privileges, advantages and exemptions under and by virtue of any and all statutes of the state of Wyoming providing for the exemptions of homesteads from sale on execution or otherwise, and the mortgage was further duly acknowledged in accordance with the requirements of the statute relating to the waiver of a homestead right, separate examination being made of the wife. It also contained the usual clause giving power of sale to the mortgagee. J. A. Delfelder died soon after the execution of the mortgage, and on May 20, 1921, Evelyn M. Delfelder, his widow, was duly appointed execu
trix of his estate. We shall assume, for the purpose of this case, that it was shown herein that notice to creditors was duly given, the first publication thereof being on May 27, 1921 The indebtedness under the foregoing mortgage was, soon after it was given, reduced to the principal sum of $70,000, apparently by the sale of the livestock. Several renewal notes were given by the executrix for the debt, for the purpose of extending the payment thereof, the first renewal being made in October, 1921, the last on April 21, 1923, each for the sum of $70,000. No formal claim, however, was filed with the executrix. On March 24, 1924, the mortgage above mentioned and the notes secured thereby were duly assigned to the American National Bank. That Bank on April 18, 1924, commenced foreclosure of the mortgage under the power of sale contained therein. At that time there was due $79,269, exclusive of attorney’s fees. Costs and expenses of the sale were $177. The sale under the mortgage was made on June 2nd, 1924, pursuant to the notice, and the property covered by the mortgage was sold to the assignee of the mortgage for the sum of $72,000. One Sam Jensen, who describes himself as under-sheriff of Fremont County, acted “as auctioneer” in making the sale of the premises, and on December 19, 1924, as such under-sheriff, delivered a deed of the premises to the purchaser at such sale, the deed reciting the usual facts. On March 19, 1926, the American National Bank conveyed the premises so sold to the Teton Land and Investment Company, plaintiff in this action. That company, on March 27, 1931, brought an action against Evelyn M. Delfelder to recover the premises in controversy in this case, the petition alleging the usual facts contained in a petition for the recovery of real property, usually called ejectment. The defendant answered on October 16, 1931. In addition to a general denial, she
pleaded the death of J. A. Delfelder, her appointment as executrix, the making and return of an inventory and appraisement on the 15th of June, 1921, wherein the property in controversy in this case, namely, Lots 17 and 18 of Block 24 of the Town of Riverton, were stated to be a homestead and were appraised at the sum of $5000.00; that a subsequent appraisement of that property was made on October 14, 1931, at the sum of $2500, and that the appraisers found that the property could not be divided without material injury; that lots 17 and 18 above mentioned were occupied as a home by the defendant and her husband during his life time, and is now being occupied by her as such; that a sale of the mortgaged premises was made as above mentioned; that the sale was made by an under-sheriff; that no claim for the mortgage— indebtedness was ever filed with the executrix of the estate, and that the sale, accordingly, was wholly void as to lots 17 and 18 above mentioned. The defendant accordingly prayed that the petition be dismissed and that she have such other and further relief as to the court might appear to be just and equitable. The proof showed the occupancy as a homestead as alleged, and the facts as to the inventories and appraise-ments, in addition to the facts already mentioned. The original inventory and appraisement sets forth real estate, including the homestead premises of the value of $95,836; personal property of the value of $34,120, and debts of the amount of $129,991, leaving a deficiency of $35.00. Other pertinent facts will be stated hereafter. Trial of the case was had before the court and the jury; the court directed a verdict for plaintiff, and judgment was rendered thereon. From that judgment the defendant has appealed.
1. The plaintiff, to show its title, introduced in evidence the deed executed to it by Sam Jensen, un-dersheriff of Fremont County, Wyoming. The deed
was objected to as incompetent evidence on the ground that no undersheriff is, under the laws of this state, authorized to conduct a sale' of foreclosure, or to execute a deed pursuant thereton. Section 71-209, Rev. Stat. 1931, provides that the sale “shall be made by the person appointed for that purpose in the mortgage or by the sheriff or deputy sheriff of the county.” Sec. 71-212 provides that “the sale may be made by the sheriff, or deputy sheriff, or by the mortgagee at the option of the latter.” But it is argued that an uñdersheriff is not a deputy sheriff. That contention cannot, we think, be sustained, and is not supported by any authority, in point, cited to us. The only reference in our Code to an undersheriff is in section 30-507, which, so far as this case is concerned, is substantially a re-enactment of Sec. 1465, Wyo. C. S. 1920. It provides that an under sheriff shall qualify as required by law of deputy sheriffs and shall be sheriff in case of the death, resignation or other disability of sheriff. His duties are not otherwise defined, and it appears to be contended that he cannot perform the duties of a deputy, and is merely designated as the person who shall, upon the contingencies specified, succeed to the office of sheriff. He draws a substantial salary, and we hardly think that the legislature would have given him that merely for a contingent possibility of becoming sheriff. An un-dersheriff has always, in every county of the state, performed the duties of a deputy, and has always been regarded as qualified to act for the sheriff the same as a deputy. There can be no doubt, we think, that he is simply what has been termed a general deputy, slightly more important than a simple deputy by reason of the fact that he is qualified and designated by law as the particular deputy who, under certain conditions, shall become the sheriff. Shirran v. Dallas, 21 Cal. App. 405. 132 Pac. 454, 458, 462;
Allen v. Smith, 12 N. J. L. 159, 162; Meyer v. Bishop, 27 N. J. Eq. 141, 142; see 57 C. J. 730.
2. It is argued also that the plaintiff herein failed to show a lawful foreclosure and the unlawful possession of the defendant. Just what counsel means by this we do not know, unless reference is again made to the fact that the undersheriff executed the deed. It is said in 41 C. J. 994 that the recitals in the deed to the purchaser are generally taken as prima facie, but not conclusive, evidence of the regularity of the sale and of the facts recited. This rule was applied by this court in the case of Matthews v. Nefsy, 13 Wyo. 458, 81 Pac. 305, 110 A. S. R. 1020, which, as the case at bar, was an action in ejectment. The plaintiff, accordingly, showed a prima facie right of possession.
Again, it is argued that the affidavit of the under-sheriff, which was made pursuant to the sale, recites that he acted as auctioneer, and it seems to be argued that if he acted as auctioneer he did not act as deputy sheriff, and that, accordingly, he acted merely as the agent of the holder of the mortgage, and that the latter, and not the auctioneer, should have executed the deed. We do not think that there is any force in the contention. A person who conducts a sale acts of course, as is commonly said, in the capacity of an auctioneer, but that by no means shows that he may not at the same time be a deputy sheriff, or other person authorized by law to conduct it.
3. It is defendant’s contention that there was a defect of parties in this action, and that Mrs. Del-felder, as executrix, should have been made a party hereto, in view of the fact that she was in possession in her representative capacity. It is not necessary to say much as to this contention, except that the point was not raised in the court below either by demurrer or answer, and the defect, if any, was accordingly waived. Sec. 89-1008, Rev. St. 1931. She was in pos
session, and in fact claimed the right of possession not in her capacity as executrix, but in her individual capacity, asserting that the property was her homestead. That showed that she was a proper party defendant. See Arnold v. Brechtel, 174 Mich. 147, 140 N. W. 610; Bradt v. Church, 110 N. Y. 537, 542, 18 N. E. 537; Illinois Steel Co. v. Kohnke, 151 Wisc. 410, 138 N. W. 995; 19 C. J. 1093. Plaintiff having made a prima facie showing of the right of possession of the property, it also, especially in view of defendant’s contention, made a prima facie showing that she was in the unlawful possession thereof
4. In the notice to foreclose the mortgage, the sum of 83500 was stated to be due as attorney’s fees. The original mortgage was for |225,000, which, as stated, was reduced to the principal indebtedness of $70,000 by reason of the sale of live stock. The mortgage provided for a total attorney’s fees of $11,250.00, and the 83500 mentioned in the notice of foreclosure of the real estate was the proportionate amount thereof. The actual attorney’s fee paid was 81250.00. It is argued that it was fraudulent to insert the sum of $3500 in the notice of foreclosure when only the lesser amount was actually paid. No cases are cited, nor can we understand upon what any such contention could be based. The contract itself provided for the attorney’s fee of the larger amount, and it is hard to understand how the insertion of a contractual amount in the notice of foreclosure can be said to be fraudulent so as to vitiate the sale, even though it might be excessive and though, if actually charged, a right of recovery of the excessive amount might exist. When the notice of foreclosure, prepared by counsel for the holder of the mortgage, was given, he in all probability did not himself know, and reasonably so, as to what amount would or should ultimately be charged for his services in the foreclosure, and we
can see nothing dishonorable in his conduct. In fact, since he made only a charge of $1250, which is not claimed to be excessive, when he had at least a color-able right to charge $3500, he should be given credit for a high sense of ethical conduct. The mortgagor, of course, could not be charged with a higher amount, at least since the enactment of Sec. 71-214, Rev. St. 1931, in 1927. The principal indebtedness on the mortgage appears to have been at the time of foreclosure over $79,000. The property brought, at the sale, the sum of $72,000. If we add thereto the sum of $1250.00, instead of $3500, there was still a large deficiency, so that the insertion of the latter amount in the notice of foreclosure could not possibly have prejudiced the defendant.
It is further claimed that no amount of attorney’s fee could be charged. We are cited to the case of O’Keefe v. Foster, 5 Wyo. 343, 40 Pac. 525. But the case is not in point. That was an action in court, and the decision was based on a statutory provision, not in force since 1931, that in such action no counsel fees should be recovered unless a claim for the indebtedness had been presented to the executor or administrator. In the case at bar the foreclosure was not by action in court, but by advertisement under a power of sale. But it is argued that surely this court can not hold that where an attorney’s fee cannot be recovered in an action, it may nevertheless be recovered in any other proceeding. But we are not the lawmakers. Section 71-201 and subsequent sections explicitly allow and always have allowed, a charge of an attorney’s fee in case of foreclosure by advertisement, and have made no exception thereto in case the mortgagor should die. The legislature not having made an exception, we cannot do so. We might add, that we think it clear that the practice and understanding on the part of the bar of this state has at
all times been contrary to the contention of counsel for defendant, and the incorrectness thereof is emphasized by the fact that the legislature now, apparently at least, allows an attorney’s fee even when the mortgagor is dead, in case the foreclosure is by action, though no claim is filed against the estate, provided recourse in such case against the general assets of the estate is waived and the claim is confined to the mortgage security.
5. We come then to the main question in the case, namely, whether or not the foreclosure of the mortgage was valid without presentation. of the claim of the assignee of the mortgage to the executrix of the estate, in view of the fact that the defendant resided on the premises in controversy, and claimed the same, as her homestead under the statute. The point has given us an infinite amount of trouble. We have continually held that the laws relating to a homestead should be liberally construed. And in view of that fact we have labored long, and have delayed the decision in this case, with the hope of finding some way to save the homestead for Mrs. Delfelder without doing undue violence to other principles of law and equity involved in the case. With what result, will be seen later.
The statutes, which have more or less of a bearing hérein, are as follows:
Sec. 88-3001, R. S. ’31: “If the homestead held prior to the death of the decedent be returned in the inventory appraised at not exceeding twenty-five hundred dollars in value, the court or judge must, by order, set it off to the persons in whom the title is vested by this chapter. If there be subsisting liens or incum-brances on the homestead, the claims secured thereby must be presented and allowed as other claims against the estate. If the funds of the estate be adequate to pay all claims against the estate, the claims so secured must be paid out of such funds. If the funds of the
estate be not sufficient for that purpose, the claims so secured shall be paid proportionately with other claims allowed, and the liens or incumbrances on the homestead shall only be enforced against the homestead for any deficiency remaining after such payment.”
Sec. 88-3103 (in part) : “All claims whether the same be due, not due, or contingent, must be filed or exhibited within the time limited in the notice and any claim not so filed or exhibited is barred forever * * * *
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Sec. 88-3109: “No holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator, except in the following case: An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto,'where all recourse against the property of the estate is expressly waived in the complaint.”
The statutes above mentioned were originally attempted to be modeled after the California law, section 88-3001 after section 1475 of the Code of Civil Procedure of that state. In California, however, two kinds of homesteads were recognized, one which was selected and
recorded
prior to the death of the decedent, and a probate homestead — one not so selected, but set off to the survivor by the probate court. The provision as to filing of claims was contained in section 1475 supra, the section referring to a homestead so selected and recorded. And it was held that when the homestead was of that character, an action in court to foreclose the mortgage was barred, unless the provision as to filing of claims was complied with, and that the homestead, if only of the statutory value, vested in the survivor without any order setting it apart. Hinkel v. Crowson, 188 Cal. 378, 206 Pac. 58, and cases there cited; Spencer v. Stewart, 202 Cal. 695, 262 Pac. 331. On the other hand it was held that the requirement of presentation of claims was
not applicable in the case of probate homesteads. McGahey v. Forrest, 109 Cal. 63, 41 Pac. 817; In Re Huelsman’s Estate, 127 Cal. 275, 59 Pac. 776; Browne v. Sweet, 127 Cal. 322, 59 Pac. 774. In this state we have no homesteads recorded prior to the death of the decedent. It is selected by occupancy. The fact of recording it, and giving definite notice to the world, cannot be considered a distinction altogether without value, and the California cases holding that claims must be presented as above mentioned cannot be considered decisive herein. Further by reason of the fact that these cases deal with actions in court and not with a situation such as presented here, which does not involve an action, they cannot be considered in point. This will appear more clearly as we go on. We might incidentally mention the fact that it was held in Athearn v. Ryan, 154 Cal. 554, 98 Pac. 390, and Weber v. McCleverty, 149 Cal. 316, 86 Pac. 706, that in case of a trust deed — which is at least very similar to a mortgage with a power of sale — the requirement as to presentation does not apply. The reasoning of the court in these cases is not altogether satisfactory, since it is based on the theory that a trust deed is neither a lien nor an encumbrance. But the legislature did not amend the law after Weber v. McCleverty was decided in 1906, but on the contrary in 1931 repealed section 1475 of the Code of Civil Procedure. That section was re-enacted as section 735 of the Probate Code, but with the requirement of filing claims entirely left out. C. 281, Laws of 1931. So that it would seem that such requirement as to filing of claims in the case of a mortgage has been found to be impracticable or unsatisfactory.
A. It is argued by counsel for the plaintiff that the requirement as to filing of claims applies only to a homestead which has been returned in the inventory of a value not exceeding |2500, in view of the fact
that section 88-3001, which requires such filing, makes specific reference only to such homestead, while section 88-3002, which deals with homesteads over the value of ?2500, makes no reference to the filing of any claims. At least partially the contrary to this contention was decided in the case of California Bank v. Stephens, 144 Cal. 659, 79 Pac. 379, for it was held in that case that a claim must be filed not only when the homestead premises do not exceed the statutory value, but also when they exceed it, and when they may be divided so that part thereof, not exceeding the statutory value, may be set off as a homestead. In this cas_e the property occupied as a homestead cannot be divided without injury, and what the law should be in such case has never been specifically decided, so far as we can find. The point is not free from doubt. The statute provides that in case the property is over 82500 in value and cannot be divided without injury, the appraisers shall, after affixing the value thereto, report the facts to the court, and that in such case the property may be sold, and the proceeds divided among the parties entitled thereto. Suppose the property which cannot be divided without injury is of the value of $25,000. Is the mortgagee nevertheless in such case, or in any similar case, forbidden to exercise his power of sale? The statute does not say so, but on the contrary the sale by the court is apparently permissive and not mandatory To some extent the questions and doubts arising out of the situation have been answered. It has been held that if the claim has been filed as required by section 88-3001 foreclosure proceedings may be commenced. Vandall v. Teague, 142 Cal. 471, 76 Pac. 35. Again, in Jones v. Losekamp, 19 Wyo. 83, 114 Pac. 673, it was held that a lease to premises occupied as a homestead is good as to that part which does not constitute the statutory home
stead. The effect of that decision, as applied in this case, would seem to be that if a homestead is of greater value than $2500, a mortgage against it, and a sale under the mortgage, is perfectly valid as to such excess, even though no claim was filed with the executor. And that, in fact, has been expressly held in Bank v. Stephens, supra, and see Gregg v. Bostwick, 33 Cal. 220, 91 Am. Dec. 637. But that does not dispose of the quéstion as to the homestead right. No good reason has been pointed out why the legislature should require the filing of a claim when the homestead premises are of one value, but should not require it when of another value, nor has it been pointed out why or how the administration of the law would be more practicable in one case than the other, and the writer hereof is, accordingly, not prepared at this time to hold with the contention of plaintiff on this point.
B. There is some argument in the briefs of counsel for the plaintiff in reference to the unconstitutionality of the law giving the exemption herein claimed. Counsel have not sufficiently elucidated the subject for us to grasp what they, perhaps, intend to assert, and if there is any merit in the argument, we are not in position at this time to pass upon it. They further contend that in view of the fact that the defendant, in the mortgage executed by her, waived each and every exemption which she might claim, she is bound by that provision. The contention cannot be upheld, although, as hereafter shown, the fact of such waiver cannot be wholly ignored herein. The mortgage was taken subject to the existing statutory provisions. It was an executory contract. The homestead exemption which she now claims could arise, under the statute, only by an event which occurred subsequently, and she could not waive that exemption in advance. The rule is stated in 25 C. J. Ill as follows:
“It is a rule nearly universal, based on reasons of public policy, that a debtor’s waiver of his exemption right, by stipulation of an executory contract, is absolutely void.”
The reason of the rule is aptly stated in the case of Industrial Loan & Inv. Co. v. Superior Court, 189 Cal. 546, 209, Pac. 360, 361, as follows:
“The rule is that the debtor cannot waive the privilege of claiming the exemption in advance. The rule is based on the theory that exemption laws are made for the benefit of the debtor and his family, and that it is against public policy for him to waive any benefits of the law in advance of the time when it is necessary for him to do so. If it were not for this rule, it is said, creditors would insist on inserting the clause waiving exemption laws in every executory contract. These would usually be made at a time when the debt- or was in need of money, and would be enforceable at some time in the future when, perhaps, he or his family would require the exemption. By doing so he would waive practically all the benefits of the exemption law. We approve of this doctrine, and hold that such a waiver cannot be enforced. This rule has been followed by all the states except Pennsylvania.”
The reasons here given are persuasive. Homestead rights should be protected as far as possible. Contractual rights should not be permitted to nullify a public policy expressed as to exemptions. It is better for the nation as a whole, and for creditors and debtors alike, that all should have something than that there should be a class of persons who have nothing. In fact, indiscriminate borrowing on the part of debtors, who, for the time being, are willing or anxious to sacrifice even their pittance of exemptions, on the one hand, and the willingness or eagerness of creditors to extend credit, particularly in times of plenty, even in doubtful cases, on the other, cannot, in the long run, but create poverty and want when the time of
reckoning comes, and infinite trouble for both creditors and debtors, and should not, accordingly, be encouraged, in contravention of a public policy expressed by the legislature.
We have, of course, a peculiar situation in this case. Defendant had a homestead right before the death of Mr. Delfelder. So far as that right is concerned, it does not seem to come within the rule just stated, and would seem to have been fully waived. The only right not waived is that to which she was entitled by virtue of the statutes in our Probate Code. That, it is true, is to some extent at least, under our peculiar system of acquiring homesteads by occupancy (not considering a case when property is selected in lieu of a homestead), dependent upon the right acquired before the decedent’s death. Hence the two rights are not easily separable, and the only way, apparently, by which they can be separated in the case at bar, is to treat the homestead right under the Probate Code as a new and conditional one, dependent upon the fulfillment of the steps required to be taken under the statute, and, as will be seen more fully hereafter, the necessity to see that these steps were taken would seem to be upon the person entitled to the right.
C. Counsel for plaintiff also contend that the statute itself has declared the effect, namely, that no action in court to foreclose can be brought, and that hence the intention of any other or further effect cannot be attributed to the Legislature. Section 88-3109, supra, provides that no holder of any claim against an estate shall maintain an action thereon, unless the claim is presented. That section, of course, cannot be held to bar foreclosure by advertisement. Section 88-3103, supra, provides that if a claim is not filed it is forever barred. The term'‘“bárred” is a technical term, and is applied to actions or suits.
Skinner v. Skinner, 7 N. C. 575; Wilson v. Knox County, 132 Mo. 387, 34 S. W. 45; 477; Knox County v. Morton, (C. C. A.), 68 Fed. 787; Cowan v. Mueller, 176 Mo 195, 75 S. W. 606; Bouvier’s Law Dict. (3rd Rev. by Rawle) 324. Hence that section, too, cannot be held to bar foreclosure by advertisement. In fact, it is generally held that statutes of limitations governing actions or suits have no application to foreclosure of mortgages by the exercise of a power of sale therein contained, 41 C. J. 944. Hence a part of the membership of this court believes that no claim needs to be presented in such a case, thus arriving at the same ultimate conclusion in connection with mortgages containing a power of sale as the California courts, only by a different method. But while it must be conceded that the existence of the power of sale has its bearing herein, as will be seen later, no persuasive reasons have so far been advanced that it is wholly unaffected by the statute. If the fact that the legislature merely provided one effect is necessarily exclusive of other effects, it is so under the doctrine of expressio unius est exclusio alterius. It is indeed stated in Lewis’ Sutherland on Statutory Construction, citing Perkins v. Thornburgh, 10 Cal. 189, that “when a statute specifies the effects of a certain provision, courts will presume that all the effects intended by the lawmaker are stated.” The California case cited, which refers to other cases, bears out the text. Still it is only a presumption, and the fact that foreclosures in this state have generally been by advertisement under a power of sale, and that, probably, the legislature did not intend to limit the provision for filing claims to only a small class of cases, makes it at least doubtful that the foregoing rule should be considered decisive, and would seem to suggest a construction that claims should, ordinarily, be filed even in cases in which, as in the case at bar, a power of
sale is given in a mortgage.
D. What then is the effect of the failure to file the claim? We cannot in any event, as stated before, call to our aid, in the solution of this problem, either section 88-3103 or section 88-3109, supra, but must consider section 88-3001, supra, as standing by itself. That section provides that a claim secured by homestead premises must be filed, and the language is mandatory in form. It does not, however, state "what the effect of failure to do so shall be, and that seems to be a fact of some importance. Lewis’ Sutherland Statutory Construction, Sec. 621. The purpose and intention of the section, as a whole, is clear, namely, that, if there are funds aside from the homestead, from which the lien or encumbrances may be satisfied, then that shall be done, so far as possible. But suppose that there are no such funds; was it the intention of the legislature, in view of the mandatory form of the language, to make the non-filing of the claim fatal nevertheless? Counsel for defendant take that position. But the question is not as easy as counsel seem to think. There is an old adage, applied by the courts time and again, that where the reason of the rule ceases, the rule itself ceases. That adage cannot be lightly disregarded, and should be applied, unless the legislative intent is shown to be to the contrary. The term “must” has many times been construed as directory and not mandatory. 44 C. J. 1499, notes 63-67. And while, on the one hand, homestead laws should be liberally construed, we must not forget that in the case at bar we have a right not dependent upon any statute, but a contractual right, which existed at common law, and which was vested at the time of Mr. Delfelder’s death, and there is a rule that statutes in derogation thereof are not to be liberally, but strictly construed, 59 C. J. 1125, 1127. Here, accordingly, we have two conflicting rules, and
it is apparent that, in order to determine what construction we should give to the statute, we must look to its contents as a whole. A violation of a statute in regard to sales of property under a mortgage does not necessarily make the sale void. Thus the rule seems to be uniform, so far as the cases which we have been able to find hold, that a violation of a statute or contract that the homestead shall be sold only after exhausting the other property does not make the sale void, but voidable only, and that the defect may be waived. Weber v. McCleverty, 149 Cal. 316, 86 Pac. 706 ; Lloyd v. Frank, 30 Wisc. 306; Phelps v. Western Realty Co., 89 Minn. 319, 94 N. W. 1085; Stevens et ux v. Myers, 11 Iowa 183; see 41 C. J. 974. The same idea would seem to be embodied in the decision in Miller v. McCarty, 47 Minn. 321, 30 N. W. 235, 28 A. S. R. 375, where the court held that where a mortgage covers both exempt and nonexempt property, the mortgagor may insist , upon the sale of the non-exempt property first, but that this rule “will not be enforced to the displacement of a counter-vailing equity, or where for any special facts, it would be inequitable to enforce it. It is a right which the debtor must seasonably assert for himself. The mortgagee owes him no duty to assert it for him, or to institute proceedings to protect it. The equity is simply one which the law will protect upon seasonable application of the mortgagor, where the mortgagee proceeds to enforce his mortgage.” And while not in point, and without committing ourselves to the rule announced under the facts therein, but as throwing at least some light on the subject before us, we might quote what is said in the case of Church v. Bank, 255 Mich. 595, 238 N. W. 192, 194, and Smith v. Spradlin, 136 Ark. 204, 206 S. W. 327, 328. Both cases involved a sale of exempt property on execution, but not the points mentioned in Altman v. District Court,
36 Wyo. 290, 254 Pac. 691, nor do we intend to modify anything held in that case. In the former of these cases, the court, holding that a sale of exempt property is not void, but at most only voidable, said:
“Was the execution sale void or only voidable? Beyond question one entitled to an exemption in property may, if he sees fit, waive such right in the event of a levy and execution sale. Numerous decisions of this court hold that an officer who sells exempted property, or the judgment creditor for whom the sale is made is liable to the owner for his resulting damage. * * * This must be on the theory that the one entitled to the exemption ratifies the sale. We think it must follow that such a sale, is not absolutely void, but at most only voidable, depending on the surrounding circumstances.”
In the Arkansas case, the court, among other things, said:
“The facts stated in the complaint show that the lands, which afterwards proved to be a homestead, were levied upon and sold under an execution issuing out of the circuit court based upon a valid judgment. Prima facie, the property of a judgment debtor is subject to execution. The homestead right or the right to claim a’ homestead as exempt from sale under execution is a personal privilege. ‘As against all the world except the debtor and his wife,’ as is said in Snider v. Martin, 35 Ark. 139, 17 S. W. 712, “the sale is valid, and it is valid against them, unless they, or one of them, elect to defeat it. If they neglect or refrain from asserting such right, the debtor’s title vests in the purchaser. It cannot be said, therefore, that nothing passes; it is more nearly correct to say that the purchaser takes a defeasible estate.’ ”
In Browne v. Sweet, 127 Cal. 332, 59 Pac. 774, it was held that a claim need not be presented where all the property is set apart to a widow before suit of foreclosure is commenced; in other words, that
where there is a virtual impossibility, there is an implied exception. And it is held in a number of cases that the meaning of general language may be restrained by the spirit, and may be construed to admit implied exceptions. 59 C. J. 968. It would seem that an exception ought to be implied just as readily where the act required to be done is useless, subserves no purpose whatever, and when the non-compliance results in no harm, as when it is impossible. That seems to be distinctly recognized by Lewis’ Sutherland, supra, section 629, where it is said that “provisions are directory * * * where the departure from the statute will cause no injury to any person affected by it.” In this connection, while there are numberless statements as to the construction of statutes, some of which may not be altogether reconcilable, it may not be amiss to cite a few of them. In 59 C. J. 964, it is said:
“In pursuance of the general object of giving effect to the intention of the legislature, the courts are not controlled by the literal meaning of the language of the statute, but the spirit or intention of the law prevails over the letter thereof, it being generally recognized that whatever is within the spirit of the statute is within the statute, although it is not within the letter thereof, while that which is within the letter, although not within the spirit, is not within the statute. Effect will be given the real intention even though contrary to the letter of the law.”
In Chauncey v. Dyke Bros., 119 Fed. 1, 9, 55 C. C. A. 579, it is said:
“We are aware that some courts have at times expressed in strong terms the necessity of pleading and enforcing statutes litérally without regard to consequences. Some of these utterances have been called to our attention. But this doctrine of literalism which clings to the letter of a statute and ignores its purpose is not well calculated to promote the ends of
justice. It is not the duty of a court of justice to perpetuate mistakes inadvertently made by the lawmaker by a blind adherence to the letter of the law, when the purpose of the law is apparent. Legislative bodies are not always fortunate in the use of language, but if careful attention is paid to all the provisions of a statute as well as to the conditions which led to its enactment, little difficulty will generally be experienced in ascertaining what was intended. When the purpose is disclosed, it should be given effect, since whatever is within the intention of the lawmaker is as much within the statute as if it was within the letter,”
See also Ryegate v. Wardsboro, 30 Vt. 746, 749.
It is true that in Bollinger v. Manning, 79 Cal. 7, 21 Pac. 375, it was held that the claim must be presented, though there are no other assets — though, in other words, the filing of the claim would subserve no good purpose. The case, if not inconsistent with the later case of Browne v. Sweet, supra, may, in any event, be clearly distinguished from the case at bar. It may be explained by the rule stated in 59 C. J. 1075 as follows:
"Some authorities have made the question (whether a statute is mandatory or directory) to depend on the presence or absence of words declaring the effect of a failure to comply with the statute, holding that a statute which requires certain things to be done or provides what result shall follow a failure to do them is mandatory, but that if the statute does not declare what result shall follow a failure to do the required act, it is directory.”
The case of Bollinger v. Manning was an action in court, and the statute in California, as in this state, provides that if a claim is not filed, an action in court is barred. In.other words, the result of not filing a claim is specifically provided. The case at bar involves no action in court; hence, as already heretofore
stated, section 88-3001, providing for filing claims, must, so far as this case is concerned, be held to make no provision as to the result of non-compliance with the statute, and hence under the text above stated, would, in so far as applicable to the case at bar, be construed to be directory. The cases heretofore decided by this court to the effect that the statute requiring the filing of claims are mandatory are based on Section 88-3103, not applicable here as above stated, and the cases are not, accordingly, in point.
The purpose of our statute, as stated before, is that, if there are other funds out of which the lien against a homestead may be satisfied, then such funds shall be first applied. If such purpose cannot be fulfilled, then to require an idle ceremony nevertheless would seem to be contrary to the spirit of the law. The purpose is identical with that manifested in those statutes, already referred to, which require other property to be exhausted before resorting to the homestead. A violation of the statute in those cases makes the sale not void, but at most voidable. If these decisions are correct, it would seem to follow that we must arrive at the same conclusion in the case at bar.
That conclusion appears to follow also from a consideration of the subject from another angle. The mortgagors, as stated, conveyed and waived their homestead right when they executed the mortgage and gave a power of sale. That fact cannot be wholly overlooked. If Mr. Delfelder had lived, the foreclosure would, of course, have been perfectly valid. If then it was void as to the premises here in controversy, it is rendered so only by a collateral event, and we should hesitate to declare that to be the result in such case in the absence of an express statute to that effect. There appear to be in some states express statutory provisions suspending the
execution of a power of sale during the course of administration. 41 C. J. 927. But we have no such express statute. And the prevailing rule is clearly to the effect thdt a power of sale in a mortgage is coupled with an interest, and is not revoked or suspended by the grantor’s death. 41 C. J. 927; Cleveland v. Bateman, 21 N. M. 675, 158 Pac. 648, Ann. Cas. 1918E, 1011, where a number of authorities are reviewed. There is not a syllable in our statute relating to the revocation or suspension of the power of sale. There is simply the requirement of a collateral fact, namely, the filing of a claim, and while the noncompliance with that collateral fact may be an irregularity, it is too much to ask, we think, that we should declare that the effect is that the sale is totally void, particularly in view of the fact that Mrs. Delfelder, the main party interested, herself granted the power of sale and is still living.
Moreover, as already stated, whatever right she had up to the time of the death of Mr Delfelder, she had waived. The statute stepped in and gave her, as it were, a new right under certain conditions. The premises themselves, occupied by her, did not constitute her homestead right. These premises were appraised at $5000. They could not be divided without injury. Hence the most that defendant had was an interest therein to the extent of $2500. Jones v. Losekamp, supra; Estate of Herbert, 122 Cal. 829, 54 Pac. 1100. True, in 1931 the. premises were appraised at the sum of $2500, but it can hardly be held that foreclosure proceedings instituted and completed can be held to be void by reason of something done long thereafter. In Briscoe v. Vaughn, 103 Tenn. 308, 52 S. W. 1068, it was said of a homestead similar in character as that here involved, that “before its assignment it is a mere right which hovers over the 'whole land, and does not rise to the dignity of an es
tate.” And in Nelson v. Theus, 5 Tenn. App. 88, 94, it was said that before the assignment of the homestead a widow does not have an estate in the land or an interest therein that can be conveyed. But whatever may be the character of the right it would seem at least that when the premises, not properly divisible, are appraised at more than the statutory value, the homestead right cannot be perfected without some action on the part of the court or its officers, for as said in Jarrell v. Payne, 75 Ala. 577, 579, “when the tract consists of more acres or is of greater value than can be claimed as exempt homestead, there must be a selection of the, part claimed. This is indispensable, for otherwise it cannot be known of what the homestead consists, nor whether the claim is excessive.” See also 29 C. J. 1029. Now what is the situation when nothing is done to perfect that right till after foreclosure of a mortgage under power of sale? Though the holder of the mortgage had notice of the rights of the defendant, still it also knew that without some steps being taken, the homestead right would not be perfected. And it would seem that if never perfected during the course of administration, it would be waived. That appears to be distinctly held in Dake v. Sewell, 145 Ala. 582, 39 So. 819, and Beck v. Karr, 209 Ala. 199, 95 So. 881. Hence whether or not the homestead right would ever be perfected was in a state of uncertainty at the time of the foreclosure herein, and if it was waived in case it was never perfected, then, of course, foreclosure under the mortgage would have been perfectly good. We hardly think that we can hold that the defendant owed no duty to do anything whatever, and that the holder of the mortgage was bound, at its peril, to see to it that the defendant would not waive her right and that all steps necessary to protect it were taken, particularly in view of the fact that defendant had, in
the mortgage, already voluntarily waived her homestead rights. It might be argued that the defendant took no steps because she may have relied upon the fact that no claim was filed with the estate, and if we concede that this possibility should be given effect, that would modify to some extent what we have just said, although we cannot see how it could modify other portions of this opinion. Moreover, the likelihood of the conjecture is not great, in view of the fact that the second appraisement, looking to the determination of the defendant’s homestead right, was not made until more than ten years after the death of the decedent, and no affirmative move to assert that right against the holder of the mortgage or the purchaser under the foreclosure sale was made until after that time. Bearing in mind, accordingly, all that we have said on the point now under discussion,, and considering it as a whole, we think that we must hold that the mortgage-sale held herein was not void, but at most voidable, depending on the circumstances.
E. The essence of the defense herein is to have a sale under a mortgage set aside. Such a proceeding is one in equity. 41 C. J. 1023; Hanson v. Neal, 215 Mo. 256, 114 S. W. 1073. It is set up in an action heretofore called one at law. But that may be done in our state where law and equity are blended and amalgamated. Upjohn v. Moore, 45 Wyo. 96; 16 Pac. (2d) 40, 41; Holly Sugar Corp. v. Fritzler, 42 Wyo. 446, 296 Pac. 206; Bamforth v. Ihmsen, 28 Wyo. 282, 300, 204 Pac. 345, 205 Pac. 1004. However, the equitable nature of the defense is not thereby destroyed. And where, as in this case, the sale was not absolutely void, but at most voidable, it would seem that it should not be set aside unless she was prejudiced or damaged by the failure of the holder of the mortgage to file a claim as required by section 88-3001, supra. Humboldt v. March, 136 Cal. 321, 68 Pac. 968; Summer-
ville v. March, 142 Cal. 554, 76 Pac. 388, 100 A. S. R. 145; Weber v. McCleverty, supra; Equitable Life Ins. Co. v. Ryan, 213 Iowa, 603, 239 N. W. 695; Stevens and wife v. Myers, supra; Lloyd v. Frank, supra; Phelps v. Western Realty Co., supra; Mulroy v. Trust & Sav. Bank, 165 Minn. 295, 206 N. W. 461. Now, if we may take the facts disclosed by the record as correct, we find that, unfortunately, the estate of the decedent was insolvent The real estate was all sold under the mortgage. The personal property amounted to $34,000, from which, of course, must be deducted the expenses of administration and the allowances made to the widow, the amounts of which do not appear The indebtedness, outside of the mortgage indebtedness, amounted to approximately the sum of $64,000. The indebtedness under the mortgage was, at the time of the sale, approximately $80,700. The sale brought $72,000, and if we deduct $5000, the appraised value of the homestead, the sum of $67,000, leaving a deficiency of approximately $13,-700. This deficiency would have been entitled to be paid proportionately with the other debts out of the personal property, namely, about 13-64th thereof, bringing about $7000, or less, leaving still a deficiency of approximately $6,700, a sum greater than the value of the homestead premises. To assume that the homestead brought only $2500 or less would not change the result. It is apparent, accordingly, under the facts, that even if the claim had been filed, it would not have benefited the defendant.
Of course, we might speculate on what might have been done, but was not done. The indebtedness was not so large during 1921, and if the sale of the lands had been made during that year, (without it nothing would have availed), and if it would have brought the same amount as it brought in 1924, the goal to save the homestead would not have been so far. But
even then, in addition to the amount realized from the sale of the land and the payment of the proper proportion from the personal property, a payment of more than two thousand dollars on the mortgage would have been necessary in order to save the homestead premises, and to this amount would be required to be added an additional sum, probably not small, the size depending on the amount of expenses of administration and widow’s allowances. Of course we are now speculating. There are too many “ifs”, and we cannot, ordinarily at least, decide a case on mere possibilities. Pac.-Wyo. Oil Co. v. Carter Oil Co., on rehearing, 31 Wyo. 452, 460, 228 Pac. 284. But granting that this possibility should, in some cases, be held to warrant relief, it cannot be held to do so in this case. The homestead could not have been saved, as stated above, without the sale of the farm lands. Should blame be fastened on the assignee of the mortgage because the foreclosure was not started sooner? We do not think so. Leaving out of consideration the spirit of the times which censures rather than encourages timely foreclosures, we find in the case at bar the fact that the defendant herself, as executrix of the estate, at four different times gave, for the purpose of extending the time of payment, renewal notes for the original indebtedness under the mortgage, which operated, if not entirely so, at least almost like an allowance of the claim, even though not based on a formal claim filed with the estate. The first renewal note was given before, the last long after, the time of filing claims against the estate had expired. She was, accordingly," at least equally to blame for not proceeding more promptly in attempting to determine whether or not the homestead could have been saved. Suppose, then, the claim had been filed. By reason of the extension of the notes, the holder of the mortgage was unable to foreclose. Thus,
as a result of defendant’s own act, taxes accrued, interest accumulated, and the amount ran up to that ultimately found to he due, and the possibility of saving the home became out of the question, as already seen. The fact that these extensions were made by the defendant in her capacity as executrix should not, we think, make any difference. We have, in considering this matter, earnestly attempted to find out whether she might not, in some way, have been damaged by the non-filing of the claim ,but have been unsuccessful by reason of the stubborn facts confronting us, and counsel have not attempted to show us the way. It has not been necessary to consider the situation arising out of the fact that there is still a large deficiency due to the holder of the mortgage.
We are constrained, accordingly, though not without regret, to affirm the judgment of the trial court. It is so ordered.
Affirmed.
Kimball, Ch. J., and Riner, J., concur specially, as mentioned in their separate opinions.