Ontario State Bank v. Gerry

McFarland, J.

On November 29, 1887, the defendant John Gerry made a promissory note to plaintiff for fifteen hundred .dollars and interest, payable in three months. Gerry was at that time the holder of a written contract from one Osborn, who was then the owner of the lot of land and premises described in the complaint, by which Gerry was entitled to a conveyance of said lot upon his payment of certain money; and when Gerry gave said note to plaintiff he assigned said contract to plaintiff as security for the payment of said note. After-wards Gerry paid to Osborn all the money due on said contract; and at Gerry’s request, Osborn executed a deed of conveyance of said lot to the defendant Eliza Gerry, who was and is the wife of said defendant John Gerry, *97 which deed was recorded July 3, 1888. The defendants were residing on said lot, and on July 10, 1888, the defendant Eliza duly executed and had recorded a declaration of homestead on said premises. At that time she had no knowledge (if that be material) of the said assignment of said contract to plaintiff. Said assignment was never recorded, nor_ was there any record of any claim of lien of any character in favor of plaintiff against said premises. This present action was commenced March 7, 1889, to recover a judgment against John Gerry for the amount due on said note, and also to enforce a lien for the same on said premises against both defendants. The defendants answered, setting up their homestead right. The court below gave judgment against John Gerry for the amount of the note, and also decreed the sale of the premises and the foreclosure of all the right and title of both defendants in and to the same; and defendants appeal from the judgment.

The part of the judgment which decrees the sale of the premises is erroneous. The court seems to have acted upon the theory that as the wife was not a subsequent purchaser for a valuable consideration, therefore, as against her, the prior unrecorded mortgage was valid. But the doctrine that unrecorded deeds and mortgages are good, except as against subsequent purchasers for a valuable consideration, does not apply to homesteads. Rights to homesteads are defined by the provisions of the code which directly deal with that subject. “ The doctrine bearing upon conveyances made to hinder, delay, or defraud creditors has no application to the creation of a homestead,” and a declaration of a homestead is not a “ conveyance” as that word is used generally in the code. Section 1241 of the Civil Code enumerates the cases where a homestead may be taken for a debtr and it can be so taken in no other instance. The only subdivision of that section upon which respondent could rest with any plausibility is the fourth, which is as follows: “ On debts secured by mortgages on the premises, executed and recorded before the declaration was filed for *98 record.” It makes no difference that the mortgage (if it was a mortgage on the land) in the case at bar was executed by the husband before the legal title vested in the wife; the mortgage was not recorded' “ before the declaration of homestead was filed,” and therefore cannot be enforced against the wife’s claim of homestead. And the wife has a right in the homestead which she can protect, not only against the husband’s creditors, but against the husband himself. The respondent could have protected his mortgage by simply recording it. There is no question here about the morality of the transaction. It is simply a matter of statutory provision.

The judgment, so far as it adjudges the sale of the premises described in the complaint, and the foreclosure of appellants’ interest therein, is reversed. In all other respects it is affirmed.

Garoutte, J., De Haven, J., Harrison, J., Sharpstein, J., and Beatty, C. J., concurred.