Shaffer v. Huff

McCay, Judge.

1. There can be no question that the first transaction (the advancement of the money, the taking of the deed, and the giving of the bond,) was, whatever may have been the words used by the pai’ties, only intended to be the securing of Mr. Shaffer for the money he had due him from Mr. Huff, and the additional advance made by him at the time. It is true that the plaintiff says it was intended to be an absolute deed, but the defendant says just the contrary, and the transaction has all the marks by which Courts usually determine such instruments to be not deeds, but mortgages. The land is worth more than the amount; the notes given for the repurchase are the same as the amount due, and the grantor remained in possession. The testimony of Mr. Brandon is also in favor of this view. At any rate, the evidence is sufficient, abundantly, to justify the verdict of the jury on this point. Nor does the fact that the bond for titles was to the husband, and not to the husband and wife, in terms, alter the matter. The husband, is the trustee of the wife for any separate estate she may have, which he gets into possession if she have no trustee, and when he took the bond he was only a trustee for her. Had he paid the notes, it will hardly be contended he would not have taken the land for the use of his wife and children just as it was before it was deeded to the plaintiff. If the transaction was, as seems pretty clear from the evidence, a mere arrangement to secure the plaintiff in the money the husband owed him, and which he advanced, then, whatever the terms of the bond, on the payment of the money, the title would, by operation of law, be again what it was before, to-wit: a homestead for the wife and children.

2. Nor could the plaintiff and the husband, by any arrangements between themselves for the cancellation of the bond, affect the wife’s rights. The plaintiff had full notice of her rights, and when he took up his bond he well knew that she was the true beneficiary of the land. If the homestead provision of the law is to have any sacredness at all, such a transaction as this record discloses should be looked at with great suspicion, and we are not disposed to be astute in finding objections to a verdict of this kind. The most that can be said for the plaintiff, under the facts, is that he has a lien on the land for his money. If the land were not a homestead, this would be clearly so. But we see serious difficulties in the way of making the transaction good, even as a mortgage, on the homestead. The Ordinary has not approved the deed as a mortgage. Perhaps he would not have approved it had he known the facts, to-wit: that the object was not in fact to sell and buy another homestead, but to pledge the homestead for money borrowed, and already due by the husband. The law only authorizes an alienation with the approval of the Ordinary. For myself, I am of opinion that the Ordinary ought in no case to consent, until he is perfectly satisfied that the funds produced by the sale will be promptly reinvested in another homestead. The object of the law is to provide a home for the family against the improvidence of the husband. This object is but poorly attained, if the parties may sell and waste the proceeds. It is the duty of the Ordinary to see to the object of the parties and not to approve unless he is satisfied the true objects of the statute will be carried out.

Judgment affirmed.