Daily Development for
Wednesday, October 2, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

HOMESTEAD; WAIVER: Failure of spouse to sign deed of trust renders mortgage on homestead void and defect is not cured by spouse's signing promissory note evidencing the secured indebtedness one year after mortgage is executed. Craddock v. Brinkley, 671 So.2d 662 (Miss. 1996).

The property in question was part of a 145 acre parcel. The borrower and his spouse lived in one corner of the parcel and borrower (at least) contemplated developing a substantial portion of the balance as a residential subdivision. The area to be developed was more than a mile from the home itself. Nevertheless, the couple declared the property a homestead in transactions contemporaneous with the original note and deed of trust instruments.

Subsequently, the deed of trust was foreclosed upon and the original lender, who had transferred the loan to an institutional investor, acquired the property from the foreclosure sale purchaser. Although the original grantor and his wife had both died by this time, their children were able to set aside the deed of trust and all subsequent transactions under it due to the fact that the wife had not executed the mortgage.

Under Mississippi law, a conveyance of an interest in a homestead is void unless both spouses consent. In a 1993 case (reported in the Section's publication ANNUAL SURVEY OF DEVELOPMENTS IN REAL ESTATE LAW for that year, a Mississippi court had held that if a spouse signs documents attached to the original deed of trust instrument, indicating her intent to commit to the document herself, the homestead is deemed waived.

In the instant case, the spouse had joined in executing a note one year after the original deed trust evidencing an additional indebtdness to the beneficiary under that deed of trust. The note had stated on its face that it was secured by the deed of trust executed earlier. This subsequent execution, however, was not sufficient to justify a conclusion that the wife had waived her homestead protection. The court concluded that there was no evidence that the note had been integrated with the deed of trust into a single transaction (note that the deed of trust secured sums other than those represented by the note in question.)

HOMESTEAD; MARITAL PROPERTY: Deed executed by married grantor conveying one-half interest in jointly owned homestead, subject to life estate in grantor's spouse is void in absence of spouse's signature. Pratt v. Langston, 669 So.2d 967 (Ala.Civ.App. 1995).

The property was titled in joint tenancy between the grantor and his wife. The transfer of the grantor's interest obviously would have constituted a severance of the joint tenancy, but could not overcome the homestead interest. Consequently, it was void for every purpose, including the severance. When the granting spouse predeceased the non-signing spouse, the entire property passed into title of the surviving spouse.

Comment 1: One wonders whether, if the granting spouse had been the survivor, the deed would have been valid as against his interest under the doctrine of estoppel by deed. The court does not supply an answer.

Comment 2: The court felt bound by Alabama precedent, and did not analyze the case at all. But where the original deed reserved a life estate to the non-signing spouse, one would assume that she got all the homestead protection to which she was entitled, and that the signing spouse should have been able to sever the joint tenancy with regard to the future period beyond her lifetime.

Compare: Ann H. O'Hagan v. United States 77 AFTR2d Par. 96-895 No. 95-1185, see 96 TNT 117-12 or Doc 96-17549. (Daily Development for 6/21/96 (Eight Circuit makes similar ruling in face of Minnesota legislation intended (in view of most Minnesota lawyers) to avoid the result).

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