A Treatise on Homestead and Exemption

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1893 edition. Excerpt: ... No mortgage or other alienation by a. married man, of his homestead (or limited quantity of realty), exempt by law from execution, shall be valid or of any efl'ect as to (the right of occupying and enjoying for life) such homestead, without the signature of his wife to the same. These parenthetical interpolations are fairly inferred from the construction given by the court, which claims to have departed froui the letter of the statute to save its spirit, from the language of the legislator to carry out his intentions.' The application of the rule that the spirit should prevail over the letter--or that what is not within the intention of the makers of the statute is not within the statute--has not been found necessary by the supreme courts of other states when deciding causes turning upon statutory language almost verbatim with the one thus interpolated and constructed. This will be seen herein when their deliverances upon void sales of homesteads come under review. They have not considered such provisions ambiguous or needing interpretation. The doctrine in general is that such inhibition renders alienation by the husband without his wife's joinder absolutely void, conveying nothing of his interest or hers in the homestead.' 1 Ferguson v. Mason, 60 Wis. 377, 890-1. 4. Restraint and Exemption-When Gorrelative. There is a phrase in the non-alienation provision exceptionally interpreted as above stated, which seems to throw light upon the meaning of the legislator, if any is needed. It is exempt by law from execution. This phrase qualifies homestead. The sentence is: No mortgage or other aliention by a married man, ry his /iomesteaol, exempt by law from execution, shall be...