Appeal from Ninth Judicial District Court, White Pine County; Ben W. Coleman, Judge. On rehearing. Former opinion, reversing and remanding, affirmed. [For former opinion, see 39 Nev. 235.]
Chandler & Quayle, for Respondent.
Anthony Jurich and Walker & Haight, for Appellants.
By the Court, McCarran, J.:
A rehearing was granted in this case on petition of respondent, in order that a full and complete argument might be presented to the court and in order that the members of the bar of this state, amici curiae, might, in view of the importance of the question to be determined, make such contribution as they saw fit by way of oral argument or brief to assist the court in arriving at a final determination.
In our former consideration of the case (First National Bank of Ely v. Meyers, 39 Nev. 235, 150 Pac. 308) we dwelt at some length on the constitutional and statutory provisions which seemed to us applicable to the matter at bar. Hence it will be unnecessary for us to go extensively into the question here on rehearing.
Our constitution (section 30 of article 4) provides:
A homestead, as provided by law, shall be exempt from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife when that relation exists.
If the constitutional provision terminated at this point, we apprehend there would be no serious question to
consider in the matter at bar. But it is the latter part of the section upon which this controversy in the main rests:
And laws shall be enacted providing for the recording of such homestead within the county in which the same shall be situated.
It will be noted that this section of the constitution makes no attempt at describing, limiting, or qualifying either the character, class, or quantity of the property that shall constitute a homestead. Such is entirely left to future legislation.
So one thing is apparent without proceeding further, namely, that when this homestead contemplated by the provision of the statue is designated, limited, and fixed as to the character, class, and quantity of the property to be exempted, such homestead so designated, so described and so limited shall not be alienated without the joint consent of husband and wife when that relation exists.
Pursuant to the direction of this section of the constitution, the legislature in 1865 passed an act which, as we take it, described, limited, and fixed the homestead contemplated by section 30 of article 14 of the constitution. It declared as to the property out of which the homestead might be created. It limited the amount of property in value that might be covered by the homestead, and thereby made exempt from forced sale, and in this respect specifically provided:
The homestead, consisting of a quantity of land, together with the dwelling-house thereon, and its appurtenances, not exceeding in value the sum of five thousand dollars, to be selected by the husband and wife, or either of them, or other head of the family, shall not be subject to forced sale on execution. * * * Said selection shall be made by either the husband or wife, or both of them, or other head of a family, declaring their intention, in writing, to claim the same as a homestead. (Stats. 1864-5, p. 225.)
The statute proceeds to prescribe what declaration shall be made where the party selecting is a married person
and where the party selecting is an unmarried person; that the declaration should be signed, acknowledged and recorded as conveyances affecting real estate are required to be acknowledged and recorded.
The statute continues by declaring how the husband and wife shall hold after the declaration of homestead. If the property selected be the separate property of either spouse, both must join in the execution and acknowledgment of the declaration. The statute then makes provision as to how the property shall be disposed of in the event of the death of one or the other of the spouses. The section of the statute makes provision for tenants in common making declaration of homestead rights upon their respective estates in land and the improvements thereon.
But a singular feature with reference to this statute enacted under the specific mandate of the constitution is that while it defines the homestead, fixes its value, prescribes the property, separate or community, from which the homestead may be selected, provides for the recording of the same, specifies that from and after the filing for record of said declaration the husband and wife shall be deemed to hold said homestead as joint tenants, etc., it nowhere by any word or expression limits or prescribes or designates the rights of the respective parties to alienate or effect the disposal or incumbrance of the homestead so created. That the homestead shall not be subject to forced sale on execution or any final process from any court is all that is provided in the way of exemption.
In the case at bar it must be recalled that we are not dealing with the question of forced sale of a homestead under execution or by final process from a court for any debt or obligation. We are dealing exclusively with the right of one spouse to alienate a homestead without the joint consent of the other. We are dealing here solely with the question of the validity of an instrument made by the husband without the knowledge, consent, or acquiescence of the wife, by which instrument the former
alienated, at least to the extent of a mortgage, the home which had been at all times and was then openly and notoriously occupied by and was the only place of abode for himself, his wife, and his family. The statute enacted by our legislature in 1865 with a view to carrying out the specific requisites of section 30 of article 4, for some reason best known to itself, studiously avoided mention or ...