Page:Federal Reporter, 1st Series, Volume 10.djvu/615

 HANNON V. SOMMES. 603 �is well settled as a general rule that any interest in lands which is the subject of contract or sale may be mortgaged. 2 Story, Eq. Jur. § 1021; Miller v. Lepton, 6 Blackf. (Ind.) 238. �But it is insisted by counsel for respondent that the constitution al provision above quoted constitutes an exception to the general doc- trine on this subject, because it declares that the homestead "occu- pied as a residence by the family of the owner, together with all of the improvements on the same, shall be exempted from forced sale under any process of law," except for taxes, for purchase money, or by virtue of a lien given by the consent of both husband and wife. This clause must be oonstrued in connection with the remainder of the sentence, -which declares that the homestead "shall not be alienated without the joint consent of both husband and wife when that rela- tion exists." This provision necessarily implies that the homestead may be alienated by its owner if the relation of husband and wife does not exist ; and if it can be alienated absolutely, it can be mort- gaged. �If it can be mortgaged, the mortgage can be foreclosed, and the equity of the mortgagor, whatever it is, may be sold. The constitu- tional provision was intended to protect the right of the wife and children in the homestead by exempting it from sale for debt, and requiring a sale or mortgage to be made by both husband and wife when that relation exists. It did not provide for the case of a homestead held by a husband after the wife's death. The words "forced sale," employed in the above provision of the constitution, should, we think, be held to mean sales upon execution or other process for the collec- tion of the ordinary debts of the owner, and not to a sale made for the enforcement of a mortgage which the owner had the right to exe- cute, and which the holder has the right to foreclose. This construc- tion preserves all the homestead rights of the heirs. It would be no advantage to them to require complainant to wait for his decree until their right of occupancy and use has ceased; nor can it do any harm to sell at once the interest of the mortgagor, subject to their rights. The purpose of the constitutional provision — to protect the home- stead rights of the family — is accomplished by such a decree. �Our conclusions are : �(1) That the mortgage is not void because the husband had no power to execute it. (2) That it is a valid lien on his undivided half, subject to the right of occupaticy and use o£ the whole by the heirs. (3) That complainant is entitled to a decree of foreclosure upon the interest of the respondent, sub- ��� �