Colvin v. Woodward

On the Merits. Plaintiff denies that defendant is entitled to any protection under the homestead law, on two grounds, which we will consider successively. 1. He claims that defendant’s recorded Homestead claim had been lost by virtue of a prior sale which he had made to hinx of this entire property. It appears that in 1886, defendant being indebted to plaintiff in the sum of $79 39, executed a deed to the latter of his whole Homestead tract of 160 acres. It is stated among the allegations of plaintiff’s own petition that this conveyance was executed “ in order to secure unto him the full and punctual payment of said sum,” and that he gave to defendant “ a counter letter stating that said deed was made for the purpose of securing to petitioner the payment of the said sum of $79 39, and agreeing that if said sunx was paid by 1st of November, 1886, he would reconvey said land to defendant.” Neither the deed nor the counter letter appear in the record, but the foregoing statement of their contents conclusively stamps the transaction, which was unaccompanied by any delivery, as merely hypothecary or pignorative in its character, and neither intended nor operating as a divestiture of plaintiff’s title. The amount due was subsequently paid by defendant and the transaction was cancelled by a return to each other of the deed and the counter letter, though plaintiff never executed a formal reconveyance of the land, which he is ordered to do by the present judgment. We are satisfied this transaction never transferred the ownership or destroyed defendant’s homestead right. 2. It is claimed that the contract now sought to be enfoiced is itself enforceable as a sale or promise to sell a part of the homestead, which is valid under Article 222 of the Constitution, which, after prohibiting mortgages or waiver of homestead rights, declares that “ the right to sell any property which shall be recorded as a homestead shall be preserved.” The defendant undoubtedly has the right to selL — but has he sold 9 It is too self-evident to require comment that the instrument copied in the beginning of this opinion is not a sale. It is simply an executory promise to convey. *631 Article 220 of the Constitution declares: “ No court or ministerial officer of this State shall have jurisdiction or authority to enforce any judgment, execution or decree, against the property set apart as a homestead.” This decree is obviously one to be enforced against the homestead property, in satisfaction of a right claimed which is not within any of the exceptions to the prohibition. No court has authority to render or enforce any such decree. This defendant has his homestead rights in this property, which he cannot validly waive or renounce, or contractually destroy, otherwise than by sale or its equivalent, and he has not sold or alienated the property. He asserts those rights and we are bound to protect them. It is not necessary, nor do we mean, to determine whether any alienation of the homestead other than by sale would be valid.' Here there was no alienation. It is, therefore, ordered, adjudged and decreed, that the judgment appealed from, in so far as it orders defeudant to convey to plaintiff any portion of his homestead tract, or recognizes the right of plaintiff to claim or take any portion thereof, be and the same is annulled, avoided and reversed, and the demand of plaintiff to that effect is rejected, without prejudice to any other portions of said judgment which are not within our jurisdiction, plaintiff and appellee to pay costs of this appeal.