The deed and mortgage having been executed and delivered simultaneously, were one and the same transaction. There was no time at which the homestead claim could attach. The law, as settled in regard to claims for dower, under like circumstances, must govern this case. There is no difference whatsoever in principle, between the two classes of claims, when set up under circumstances like the present. (1 Sand. Ch. 76; 4 Mass. 566; 15 Johns. 458: 14 Mass. 351; 15 Pet. 21; 4 Leigh, 30; 5 Cal. 455.)
The appellants, up to the time of the execution and delivery of the deed and mortgage, had occupied the premises under lease from the vendor of Vance. They had no title, or claim of title to the premises, and no claim or right of homestead could attach during the tenancy. The mortgage having been executed at the same time with the deed, the premises passed to Vance, encumbered with the mortgage. (6 Tex. 303; 11 Tex. 346.)
The respondent having furnished the money to Vance, with which the premises were purchased by him, is protected by the provision of the statute which dispenses with the signature and acknowledgmentof the wife, when the mortgage shall be " executed to secure the payment of the purchase-money." (Act to exempt the homestead, etc., Comp. Laws, p. 850, Sec. 2.)
JUDGES: Burnett, J., delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BURNETT, Judge
The defendant, James Vance, resided, with his wife, upon certain premises, as the tenant of Francis Mellus, for some two years prior to the 4th of January, 1856. On that day, defendant, James Vance, borrowed of plaintiff three thousand dollars, and executed to him a note, and a mortgage upon the premises, and at the same time took from Mellus a conveyance to himself. The money borrowed of the plaintiff was paid to Mellus for the lot. The defendant, James Vance, and wife, continued to reside upon the premises, and claimed the right of homestead as against the mortgage to plaintiff. The Court below decreed the sale of the mortgaged premises, and Vance and wife appealed to this Court.
It would seem that the defendants, Vance and wife, have neither an equitable or legal right of homestead in the mortgaged premises. The deed from Mellus to James Vance, and the mortgage from him to plaintiff, were simultaneous acts, and the money borrowed was the entire amount paid for the lot. The money of plaintiff paid for the lot, and it certainly would be an exceedingly harsh rule of law, that would defeat his mortgage upon the very property purchased with the money furnished by himself.
In his Commentaries, Chancellor Kent says:
" A transitory seizin for an instant, when the same Act that gives the estate to the husband conveys it out of him, as in the case of a conusee of a fine, is not sufficient to give the wife dower. Nor is the seizin sufficient when the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor, or to a third person, to secure the purchase-money, in whole or in part." (4 Kent, 39.)
The doctrine laid down by the learned American commentator, was fully sustained by the Supreme Court of the United States, in the case of Mayberry v. Brien and others, 15 Peters, 21. Also, by other cases. (1 San. Ch. 76; 4 Leigh, 30; 15 John. 458; 4 Mass. 566; 6 Tex. 294.)
The deed and mortgage being simultaneous, were but parts of the same transaction. (15 Johns, 462; 4 Mass. 569; 12 Mass. 352.)
Judgment affirmed.