Alley v. Bay

Woodwakd, J. —

Tbe answer alleges all tbe qualities and circumstances requisite to constitute tbe lot a homestead5 and that Bay and bis family occupies it, and that it is bis homestead. Tbe statute, Code, section 1247, enacts that a conveyance by tbe owner is of no validity unless tbe husband and wife (if tbe owner is a married man) concur in and sign such conveyance. Tbe principal argument against tbe position of tbe respondents, is tbe fact that neither Bay nor bis wife claim or ask for tbe homestead. But section 1254 provides that, in case of tbe failure of both these to select tbe homestead, the officer having an execution shall cause it to be marked, platted and recorded. If they have another place wMcb they prefer as a homestead, they must do some act to cause this to be elected, otherwise that which they occupy at tbe time will be treated as such.

Besides stating tbe circumstances going to constitute a homestead, and averring them to exist in this case, tbe answer alleges that tMs is tbe homestead of Bay, and tbe demurrer admits it. Tbe statute says tbe conveyance of one without tbe concurrence of tbe other, shall be of no validity. If it bad said that it should not be valid against the husband or wife, or their heirs, there would have been more support for tbe plaintiff’s position. Tbe position of defendant is supported by Richards v. Chace, 2 Gray 383 ; Williams v. Starr, 5 Wis. 534 ; and Jenny v. Gray, 5 Ohio State R. 45.

It appears to us more consistent, with the terms and object of tbe statute to bold tbe conveyance from Bay to Alley as actually invalid. Therefore tbe decree of tbe District Court is reversed, with leave to tbe petetitioner to answer over. ■ j