O'Brien v. Young

15 Iowa 5, 1863 Iowa Sup. LEXIS 51

• Court: Supreme Court of Iowa
• Decided: June 5, 1863
• Status: Published

Opinion

Baldwin, C. J.

The only question presented in this case is, whether a deed of trust upon the homestead by the husband and wife passes the interest of the wife therein to the trustee, unless, it is expressly stipulated that the homestead is intended to be conveyed. It is the same question-: raised and determined in the case of Babcock et ux. v. Hoey, 11 Iowa, 375. It is claimed, however, in argument, that as one of the members of the court assented to the affirmance of the judgment in that case, but did not concur in the reasoning of the opinion announcing the decision of the court, that it may have been upon some other view of the ease that it was affirmed.

We have only to announce in this case, that in the one above referred to,. the question now presented was the leading and controlling one — that a majority of the court then thought and how hold, that a deed of trust, or mortgage, by the husband and wife upon the homestead is good and valid, and.passes the rights of the owners therein, by a proper description of the property encumbered, by metes and bounds, or numbers; and that in order to make such deed of trust or mortgage valid, it is not now, and was not then, necessary for the grantors to state specifically that it was their homestead that they sought to encumber.

Affirmed.