Wright v. Whittick

Mr. Justice Elliott

delivered the opinion of the court.

The facts in this case are undisputed. The only assignment of error is to the effect that the judgment is contrary to the law and the evidence.

By the briefs of counsel several very important questions are presented. In behalf of appellants the court is asked to construe the term mortgage in section 6 of the Homestead Act to include deeds of trust to secure the payment of debts; also, to construe said section 6 to mean that, even when the title to the homestead is in the husband, it is necessary for the wife to join with the husband in the execution of a mortgage of such homestead, in the manner required by said section, in order that such mortgage may be effectual to divest the wife’s interest in such homestead; and, further, to hold that the certificate of the wife’s acknowledgment of a mortgage of a homestead cannot be supplemented by parol proof.

*57 On the part of appellee the court is asked to hold the converse of the foregoing propositions; and, further, to hold that a homestead exemption right is not a vested right, but that it is always subject to legislative control; and that since Mr. Wright had not, when the trust deed in controversy was executed, complied with the provisions of section 2 of the Homestead Act as amended, that neither he nor his wife was entitled to any exemption rights in the premises in controversy.

Interesting as these questions are, we do not find it necessary to discuss or to determine them in detail. The property in controversy belonged to the husband. He held title to the same in fee long before and up to the time of the execution of the trust deed in controversy; and, if the trust deed was invalid, he held such title up to the time of executing the quitclaim deed to appellee.

The homestead exempting statute provides that a homestead not exceeding a certain value shall be exempt from execution, attachment, and mortgage, under certain circumstances. Granting that the term mortgage, as used in section 6 of the statute, is a generic term and includes trust deeds given to secure debts, still the statute nowhere forbids the owner in fee of a homestead from selling and conveying the same by deed absolute. Drake v. Root, 2 Colo. 685 .

1. The constitution of this state provides that, “ The general assembly shall pass liberal homestead and exemption laws.” But it does not designate in any manner what shall constitute a homestead or exempt property of any kind. For these particulars we must look to the acts of the legislature. Homestead and exemption laws are the creatures of legislation. Their extent and limitations must be ascertained from the legislative act. This court has already declared that exemption statutes are to be liberally construed, so as to promote the humane policy of such legislation ; but the courts cannot by construction annex to such statutes consequences not fairly within their purview or intent. Barnett v. Knight, *58 7 Colo. 365 ; Martin v. Bond, 14 Colo. 468 ; Weil v. Nevitt, ante p. 10.

2. The homestead exemption act extends certain protection to the premises set apart by the owner as a .homestead for his or her family so long as he or she desires to occupy the same as a home for the family. It protects the same against proceedings by execution and attachment; and it may, also, protect the same from foreclosure proceedings based upon a mortgage or trust deed where the title is in the husband, in case the wife has not joined in executing such mortgage or trust deed as the statute provides. But it does not appear that further exemption or protection was intended.

The statute is a shield against misfortune occasioned by debt. It is not a fetter to prevent the owner from freely disposing of all his or her estate, right or interest in the homestead premises, whenever it may suit such owner’s convenience, interest, or inclination so to do. Dower and tenancy by the courtesy have no existence in this state. See statute of “ Descents and Distributions.” It has been the policy of our law to place real property substantially upon the same footing as personalty in respect to the power of alienation by the owner.

Mr. Wright being the sole owner in fee of the premises could, at any time, while he lived, voluntarily sell and convey the same by deed absolute. If the power of attorney executed by Mrs. Wright was invalid or ineffectual to authorize her husband to execute the trust deed under which appellee claims to derive title, then the title remained in Mr. Wright, and the quitclaim deed of the premises which he shortly thereafter duly executed, acknowledged and delivered was effectual to convey the title to appellee.

The judgment of the county court must be affirmed.

Affirmed.