The judgment of the trial court is reversed, and the case remanded for further proceedings consonant with this opinion. The appellant will recover costs.
Robinson, C. J., and Christianson and Birdzell, JJ., concur.
Grace, J. (dissenting). This action is one to foreclose a certain real estate mortgage. The defendant is the owner and occupant of a certain 160-acre tract of land located in Eddy county. This is his homestead. It is exempt from judgment lien, and from execution or forced sale, except for the value thereof, in excess of $5,000, except for debts secured by mechanic’s or laborer’s liens for work or labor done or material furnished exclusively for the improvement of the same; or on debts secured by a mortgage on the premises, executed and acknowledged by both husband and wife, or an unmarried claimant, who, in conditions specified in statutory provisions, may be permitted t6 make the claim of homestead exemption; or debts created for purchase price thereof, and for taxes accruing and levied thereon.
The material facts are as follows:
On February 15, 1916, defendant made and delivered his promissory note to plaintiff for $1,675, due December 1, 1916, bearing interest at 9 per cent. per annum. On the same date to secure the payment of the note, he executed and delivered a mortgage on the land. At the time defendant signed the mortgage, he, together with his wife and six children, were residing on the land. His wife did not join with him in giving the mortgage. The mortgage was recorded. The note was not paid at maturity. Plaintiff served notice of intention to foreclose the mortgage, and in October, 1919, commenced the foreclosure thereof by action. The complaint is in the ordinary form, for the foreclosure of a real estate mortgage by action. Defendant answered, and among other things alleged that the mortgage was null and void for the reason that his wife had not joined therein, and that the land covered by the mortgage was exempt as a homestead. There was a prior valid mortgage of .$2,500, executed by defendant and wife, on which there was accumulated $150 interest.
The case was tried to a court without a jury. It made findings of fact and determined that the land was worth $7,200 and that it was subject to the $2,500 prior mortgage and interest and unpaid taxes; and, after the deduction of these amounts, defendant had an interest in the land of
