Smith v. Scherck
Smith v. Scherck
Opinion of the Court
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 prop
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.
Reference
- Full Case Name
- Nancy Smith v. Sarah Scherck
- Cited By
- 11 cases
- Status
- Published
- Syllabus
- 1. Homestead Exemption. Right of wife in respect thereto. Act 1873, p. 78, construed. The act of 1873, p. 78, which provides that no conveyance of his homestead by the husband shall be valid unless the wife joins in the conveyance, confers no right of property upon the wife in the homestead exemption in lands belonging to the husband, but gives her a mere veto power upon his right to sell or encumber it. Billingsley v. Neblett, 56 Miss. 537, approved. 2. Same. Statute of Limitations. Husband and wife. New promise. “Where a wife joins with her husband in executing a deed of trust on the homestead belonging to the husband to secure a debt due by him, a new promise in writing, by him alone, made before the bar of the Statute of Limitations has attached, operates to prevent such bal, and to give a new period for both the debt and the security to run; and the concurrence of the wife in such new promise is not required by the act above referred to.