Page:Federal Reporter, 1st Series, Volume 2.djvu/661

 654 FEDERAL REPORTBR. �pose of foreclosîng that right, or compelling lier to redeem by payment of the mortgage. The case is presented to the court on demurrer to the bill, which sets out the facts in full. �The statute of lowa, as construed by the courts of the Btate, are very positive in asserting the doctrine that ail conveyances affecting the homestead, made during cover- ture, are of no validity against the wife unless she joins in them. And as Leathers was residing on the land at the time of the marriage, there can be no doubt that the wife's right of homestead attached to it at that instant, subject, only, to any paramount right then existing. Her right was a vested right the moment the marriage was consummated, and the marriage is undoubtedly a good consideration, suffi- cient to support it. �Counsel for plaintiff argues, howeTer, with much force that the transac-tion between plaintiff and Leathers was so far a completed transaction before the marriage took place that it created an equitable mortgage in favor of the former, which is paramount to the right acquired by the wife. �It is quite elear that unless the transaction concerning the loan had reached a stage in which plaintiff had acquired a vested right in the land before the marriage took place, the right of the wife must prevail. It is probably true, also, that if such right in plaintiff had vested, his liens should prevail. What would constitute a vested right in the nature of an equi- table mortgage may not be so easy to define ; but I think I can- not be mistaken in saying that unless plaintiff had acquired such a right against Leathers, at or before the date of the mar- riage, that he could, as the transaction then stood, enforce specifically his right to have the legal mortgage executed by Leathers, or a decree for a specifie lien according to the terms of their agreement, he did not have such a vested right as will defeat the homestead claim of the wife. �Let us inquire how this was. At the date of the marriage Leathers had agreed to borrow the money and give the mort- gage and notes, and Tolman had agreed to loan the money when this was done. No notes and mortgages had been passed^and were not signed. The draft for the money had ����