Opinion
No. 35018.
June 8, 1942.
1. HOMESTEAD.
The conveyance of a homstead is void unless the wife joins in it, except as to a prior covenant or encumbrance executed by husband while single, or a deed given in pursuance of the prior covenant after marriage and occupancy as a homestead.
2. HOMESTEAD.
A covenant running with land is superior to a homestead right acquired after execution of covenant.
3. HOMESTEAD. Reformation of instruments.
Where husband owning land which was not a homestead mortgaged the land, and wife did not join in execution of mortgage which misdescribed land, and husband and wife thereafter occupied land as a homestead, the mortgage was at least a "covenant" by husband to execute another conveyance to the right land when called upon to do so by mortgagee and hence wife was neither a "necessary party" nor a "proper party" to mortgagee's suit against husband for reformation of mortgage.
4. HOMESTEAD.
All contracts permitted by law with reference to land, by the owner thereof, are enforceable although afterwards the land becomes such owner's homestead.
5. HUSBAND AND WIFE.
Contracts made by a husband before marriage are not nullified by marriage, but are as enforceable as if marriage had not taken place.
APPEAL from the chancery court of Alcorn county, HON. JAS. A. FINLEY, Chancellor.
W.C. Sweat and J.B. Mitchell, both of Corinth, for appellant.
The appellee stands squarely upon the proposition that the property being a homestead at the time the bill was filed to reform the trust deed, the wife was a necessary party although the trust deed was given long before the property became a homestead. Why was the wife a necessary party? She had no interest in the property when the trust deed attached; she did not acquire any property rights therein when she moved on it; the only interest that she had in it, as frequently held by this court, was that of a veto power. For what reason was it necessary for her to be a party to a proceeding wherein it was sought to make the trust deed speak what it was intended to speak and what appellees now must concede that it was intended to speak at the time it was written, and where are her rights in the property in any manner affected in making the trust deed speak what it was intended to speak at the time it was executed?
When an instrument is reformed the reformation relates back and takes effect from the time of its original execution.
53 C.J. 1055, Sec. 233; Lafayette County v. Hall, 70 Miss. 678, 130 So. 39.
A subsequent homestead right acquired by the wife was subject to a covenant to sell which existed before the land became a homestead; consequently, the effect of a deed signed alone by appellant was to convey the land as of the date of the contract of option to purchase, which was when the land was not a homestead.
Minor v. Interstate Gravel Co., 130 Miss. 553, 94 So. 3.
See, also, Hawkins v. Pearson, 96 Ala. 369, 11 So. 304.
There is no question but that the trust deed originally executed is valid. There is no question but that it was intended to convey the C.E. Polk Lot. There is no question but that it was not a homestead at the time the trust deed was given and that afterwards the appellee moved his family upon the land. To now permit the appellee to take advantage of the fact that his wife was not a party to the proceeding to reform the trust deed would be in effect to permit appellee to cast a burden upon the trust deed after he executed it which prevented its reformation without making a party defendant to the bill other than himself. This the law will not permit. His wife, in moving upon the land, was in privity with him; she had no property right in the land and only a veto power and that veto power would only extend to future conveyances or encumbrances and would not apply to an encumbrance that her husband had given upon the land prior to its occupancy as a home.
Compare Meyers v. American Oil Co., 192 Miss. 180, 5 So.2d 218.
G.C. Moreland, of Corinth, for appellees.
The wife was a necessary party to the bill in chancery resulting in the decree correcting the description in the trust deed.
Hawkins v. Pearson, 96 Ala. 369, 11 So. 304; Federal Land Bank of New Orleans v. Miles, 169 Miss. 43, 152 So. 472; Young v. Ashley, 123 Miss. 693, 86 So. 458; Columbia Mutual Ins. Co. v. Jones, 160 Miss. 41, 133 So. 149; McDonald v. Sandford, 88 Miss. 633, 41 So. 369; Foote v. Hambrick, 70 Miss. 157, 11 So. 567; Sargent v. Wilson et al., 5 Cal. 504.
Appellant filed his bill in the Chancery Court of Alcorn County against appellees to recover of them a lot situated in the town of Kossuth in that county, which lot is described in the bill, and seeking to confirm complainant's title thereto, and set aside and declare for naught the claim of title by the defendants, and to recover rents. The cause was heard on bill, answer and proofs, resulting in a decree in favor of the defendants. From that decree the complainant prosecutes this appeal.
The question involved: A husband owns a piece of land which is not the homestead. He gives a deed of trust on it to secure a loan. His wife does not join him in the execution of the deed of trust. Later they occupy the land as a homestead. Through error the land intended to be conveyed by the deed of trust was left out, and other land not owned by the husband inserted. Has the mortgagee the right, after the land becomes a homestead, to have the deed of trust reformed so as to correspond to the intention of the parties, without making the wife a party to such a proceeding? The case grew out of the following facts:
The defendants are husband and wife. In 1924 the husband became the owner of the lot involved. In 1927 he borrowed $650 from the First National Bank of Corinth, and to secure payment of the loan gave a deed of trust on the lot involved. The description of the lot was void. In 1928 the defendants (husband and wife) moved on the lot and have since occupied it as their homestead. In 1932 the receiver of the First National Bank filed a bill in the Chancery Court of Alcorn County to reform the description of the lot in the deed of trust to the bank, referred to. The bill sought to substitute the correct description of the lot — the one intended by the parties. The wife of the defendant, J.S. Smith, was not made a party. The relief prayed for was granted. In other words, the deed of trust was reformed so as to properly describe the lot. Later the bank's deed of trust was foreclosed, the bank becoming the purchaser of the lot. Through conveyances the appellant acquired the bank's title.
The defendants contend, and the chancellor held, that the reformation of the deed of trust did not relate back to the time of its execution, but, on the contrary, that the matter stood exactly as it would have stood if the husband had attempted to then convey title without his wife's joining.
On the other hand, the complainant contends that the reformation of the deed of trust related back to the date of its execution, at which time the lot did not constitute a homestead. Although Minor v. Interstate Gravel Co., 130 Miss. 553, 94 So. 3, is not directly in point on its facts, nevertheless the principles therein declared are applicable. It was held in that case that the conveyance of a homestead is void unless the wife joins in it, except as to a prior covenant or encumbrance executed by the husband while single, or a deed given in pursuance of the prior covenant after marriage and occupancy as a homestead; that an option to purchase is a covenant running with the land, and is enforcible against the grantor either before or after he marries and occupies it as a homestead; that a covenant running with the land was superior to a homestead right acquired after execution of the covenant; that where an option to purchase land was given by a single man who afterwards married, and then deeded the land to the optionee without his wife's joining in the deed, the conveyance was effective as of the date of the option. The case of Hawkins v. Pearson et al., 96 Ala. 369, 11 So. 304, is helpful. The court held in that case that the reformation of a mortgage relates back to the date of its execution, as against the mortgagor's wife, who became such after the execution of the mortgage.
Under the law the husband had the right, without his wife's consent, to do exactly what the chancery court did, namely to correct the description in the deed of trust to the bank, so as to make it conform to the intention of the parties. All contracts permitted by law with reference to land, by the owner thereof, are enforcible, although afterwards the land becomes the homestead of such owner. The deed of trust here involved, although containing a void description of the land, was at least a covenant by the grantor therein to execute another conveyance to the right land, when called upon by the mortgagee; and this is true, whether by that time it had become the homestead or not. Of course, it follows that what the husband, by his contract, was bound to do, the chancery court had the right to force him to do. The wife was neither a necessary nor a proper party. In other words, contracts made by a husband before marriage are not nullified by marriage, but are as enforcible as if marriage had not taken place.
Reversed and remanded.