Hill v. Hill

231 F. 345, 1916 U.S. Dist. LEXIS 1738

• Court: District Court, E.D. Arkansas
• Decided: March 20, 1916
• Docket: No. 370
• Status: Published

Opinion

TRIEBER, District Judge

(after stating the facts as above). [1] The mortgage under which plaintiffs claim title having been executed while the Constitution of 1868 was in force, and which differs materially from the present Constitution, the validity of the mortgage must be determined by that instrument.

[2] The question raised by the demurrer involving the construction of the Constitution of the state of Arkansas, it is conceded by both parties that the decisions of the Supreme Court of the state construing it are conclusive on this court.

On behalf of the plaintiffs it is claimed that, unless the owner of lauds occupied as a homestead claimed the same in conformity with the provisions of the act of the General Assembly of the state of Arkansas, approved March 28, 1871 (Session Acts Arkansas 1871, p. 285) before the sale was made under the power of the mortgage, the homestead right is lost, and the sale passes a perfect title to the purchaser at that sale. It is also claimed that the homestead right, in case of a mortgage, gives the owner thereof only the right of posses-sion during his life, and after his death to his widow for life and his children during minority, and as the widow is dead, and all the children have attained their majority, the purchaser at the foreclosure sale and his grantees are entitled to the possession of the lands. On the other hand, the defendants contend that under the Constitution of 1868 a mortgage of a homestead was absolutely void, and passed no title whatever to the mortgagee or his assigns.

The plaintiffs rely upon Norris v. Kidd, 28 Ark. 485, and the cases which follow the rule established in that case. But Norris v. Kidd does not construe section 2, of art. 12, of the Constitution, but section 3 of this article, which applies solely to sales under execution, or any other process from a court, and not to mortgages. This was expressly decided by the Supreme Court in Frits v. Frits, 32 Ark. 327, 332. In that case an action was brought to foreclose a mortgage, and the plea was interposed that it was a homestead, and for that reason the mortgage was void under the Constitution of 1868, which was in force at the time of the execution of the mortgage. On behalf of the mortgagee, it was there claimed that the plea was defective in not alleging that appellant had scheduled the lands claimed as a homestead, as required by the act of 1871, citing Norris v. Kidd. The court, in overruling this contention, held:

“That case [referring to Norris v. Kidd] is unlike the one now before us, in that the claimant permitted the land to be sold under an execution issued upon a judgment, without scheduling the property as required by the statute (Gantt’s Digest of the Statutes of Arkansas, § 2635, which is the act of March 28, 1871), and afterwards the homestead claim was set up as a defense to an action of ejectment, by the purchaser, and was held to be too late. Here the homestead claim was properly interposed in the answer to the bill to foreclose the mortgage, and condemn the lands to be sold to satisfy the debt.”

And the court held that under the provisions of the Constitution of 1868 a mortgage on a homestead, except for taxes, laborers’ and mechanics’ liens, and purchase money is void.

[3] That a mortgage, even if the wife joins in it, executed while .the Constitution of 1868 was in force, as is the case in the case at bar, is absolutely void has been uniformly held by the Supreme Court of Arkansas. As that Constitution was only in force for six years, the decisions on this subject are more numerous than might be-expected, and they are all to the effect that a mortgage on the homestead is invalid. The first case decided was Harbison v. Vaughan, 31 Ark. 15 (without an opinion, except, “Mortgage of homestead under the Constitution of 1868 is invalid”). Other cases in which the same conclusion was reached are Frits v. Frits, supra; Sentell v. Armor, 35 Ark, 49; Klenk v. Knoble, 37 Ark. 298, 304; Webb v. Davis, 37 Ark. 551, 555; Sims v. Thompson, 39 Ark. 301; Brown v. Watson, 41 Ark. 309, 313. In the last case it was held:

“What this court has so often asserted as to make any further assertion of it unnecessary in the reports is that a mortgage or a deed of trust, or any attempted incumbrance on a homestead, other than those excepted'in the Constitution, is void.”

In Webb v. Davis, supra, the mortgage contained a provision “that said property is not our homestead, and forms no part thereof, and we do not claim it as much.” In the proceeding to foreclose this mortgage the plea of homestead was set up, and the court held that the plea- was good. The court said:

“The fact that any of these lots were or were not the homestead of appellees depended not upon any recitals, statements, stipulations, or covenants contained in the mortgage. The actual use and occupation as a home and residence constituted the homestead, and could only be shown by extrinsic evidence. * * * Any recitals, statements, stipulations, or covenants incorporated in the mortgage to prevent the pleading or proving this fact, or having that effect, if any, according to the legal construction thereof, were in violation of the Constitution in force at the time of its execution (referring to the Constitution of 1868) and against its policy, and are void. * * * The facts stated in the answer are sufficient to constitute a defense.”

To the same effect is Klenk v. Knoble, supra. In that case the court said:

“It would he mere child’s play to enable the lender to neutralize that [referring to the prohibition against mortgaging the homestead] by exacting from the borrower a statement in the instrument, denying the character of the property, and then closing his mouth by an estoppel.”

[4] The act of 1871, which was construed in Norris v. Kidd, digested as section 2635 of Gantt’s Digest of the Revised Statutes of Arkansas of 1874, shows clearly that it was only intended to apply to executions, as was held in-Frits v. Frits. This is conclusively shown by the title of the act, which was “An act to regulate the practice in the matter of exemption of property from execution on final process.” The Constitution of 1868, art. 5, § 22, provided:

“No Act shall embrace more than one subject, which shall be embraced in its title.”

So, while in the absence of such a constitutional provision the title would not be considered as a part of tlie act, under a provision like that contained in the Constitution of 1868, the title of an act is of great importance in determining the intention of the Legislature. Cooley on Constitutional Limitations (7th Ed.) p. 202; Sedgwick on Construction of Statutes (3d Ed.) p. 40.

In view of the uniform rulings of the Supreme Court of Arkansas, there can be no doubt that a mortgage executed on a homestead while the Constitution of 1868 was in force was absolutely void, and passed no title. This conclusion makes it unnecessary to determine the effect of the filing by Williams of the schedule of homestead after the execution of the mortgage and before the sale under the mortgage.

The demurrer is overruled.