Kellersberger v. Kopp

As a husband and wife may, by joining in a conveyance, destroy a homestead right already acquired, by selling- the whole, so they may equally destroy it by selling an undivided portion of it. It seems that a covenant by the husband to convey an undivided interest in the land, executed before any residence of his family on the premises, sustained by a deed made by the husband alone after the residence of his family and that of his covenantee on •the premises, prevents the homstead right from attaching; and that a mortgage, executed by the husband alone after the residence of the two families on the land, but before the deed was executed by the husband to his co-tenant, will be maintained against the claim of homestead.

Appeal from tlie District Court of the Twelfth Judicial District. This was an action to foreclose a mortgage. The defendants, Kopp and his wife, claimed their homestead right in the mortgaged premises on the ground that the mortgage was executed by the husband alone. The Court below entered a decree as prayed for by the plaintiff. Defendants appealed. The record establishes the following facts: On and before July 1st, 1854, appellant Kopp was the owner in fee of the lot of ground described in the complaint. On July 24th, 1854, Kopp made an agreement in writing with Jean B. Le Clerc, (who was made a party defendant to the action for foreclosure,) by which Le Clerc was to build a brick house on said lot, and that when such house should be finished, Le Clerc should in consideration of such building, receive a deed from Kopp for the undivided half of the said lot of ground; that is to say, Kopp agreed to furnish the lot, and Le Clero the house, and each to be the owner of the half part of both lot and house. Le Clerc began to build shortly after the agreement was made, and so soon as the basement was sufficiently finished, he and his wife moved into a portion of it. Some time after Le Clerc had moved in, Kopp and his wife also moved in and took possession of another portion of the basement of the house. This was some time in August, 1854.. On October 18, 1854, Kopp mortgaged the lot to Eugene Gruiehard to secure $3,000, and Gruiehard afterwards assigned the same to respondent. On the 2d day of April, 1855, the house being fully completed by Le Clerc, Kopp, in pursuance of the agreement of July 24, 1854, conveyed to him by deed the undivided half part of said lot, and in the deed it was expressly stated that the conveyance was made subject to the mortgage of $3,000 given by Kopp to Gruiehard. Kopp and his wife, (who was made a party defendant to the action brought by respondent for the foreclosure of said mortgage,) set up a claim of homestead. The Court below decided that, under the circumstances of the case, there was no right of homestead, since there was a joint ownership by Kopp and Le Clerc.