Smith v. Scherck

60 Miss. 491

• Court: Mississippi Supreme Court
• Decided: October 15, 1882
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

In several of the States it is held, under statutes declaring mortgages of the homestead void unless the wife joins in them, that a renewal of the debt protected by mortgage will not prolong the security except by the renewed assent of the wife ; but this conclusion is based upon the premise that the effect of such statutes is to give the wife a right of property, or at least a legal interest in the homestead, though the legal title is in the husband. From such a premise the conclusion is sound. If the wife is by the statute vested ivith any legal or equitable ownership in the homestead, it seems clear that in order to prevent the bar of the Statute of Limitations she must renew her mortgage in the mode pointed out by the statute for executing it, and such is the doctrine in several States. Smyth on Homes., sect. 271.

But our doctrine is that our-statute (Acts 1873, p. 78) confers no right of property upon the wife, but a simple veto power upon the sale or encumbering of it. Billingsley v. Niblett, 56 Miss. 537.

It remains, despite the statute,-the exclusive property of the husband where the legal title resides in him, but with a limitation upon the/tis disponendi, by which he is prevented from selling or encumbering it without the conjoint act of the wife. When, however, she has given her assent in the mode appointed by law, it is operative-to its full effect, and can neither be recalled nor restricted by her. When, therefore, she joins in a mortgage of it to secure a debt, the property quoad the mortgage ceases to be a homestead, and is bound as any other property of the husband would be; and as long, therefore, as the debt is kept alive by him who owes it, the mortgage remains in full force. ' Having consented that it might be bound for that debt, it must so continue until the debt be discharged by judgment, or by such lapse of time as constitutes a valid bar in behalf of the debtor.

We speak only of a case where the debt is kept alive by renewals, and new promises made and executed before any bar attached, and have no reference to a case where a debt fully barred is renewed by the husband.

This view of the case renders unnecessary any consideration of the question whether the acknowledgment of the wife, indorsed on the note as an attempt to renew it, was binding on her. Such acknowledgment by her being unnecessary, it is useless to consider its effect.

Affirmed.