Page:Federal Reporter, 1st Series, Volume 8.djvu/319

CONNECTICDT MUT. LIFE 1N8. 00. V. JONES. 305 �gage the same is not restricted except by the regulations applicable to conveyanees of real estate in general. The statuts is not framed with a view to interfere with the right of the owner of homestead property to dispose of it by deed, but to protect it from sale under execution during the life-time of the owner, and to secure it to his widow and children as a homestead after his death. Such property, within a certain valuation, is exempt from sale under execution, and upon the death of the owner is vested by law in the surviviqg members of his family. But there is nothing in the statuts, and certainly nothing outside of the statute, to support the proposition that the wife of the owner, during his life-time, has any right of possession or claim of ;any kind in the homestead that may not be di vested hj a oonveyance in which she joins ; nor is there any force in the suggestion of counsel that the wife in this case released her dower interest only, and not her homestead right. She joined in the deed, and must beheld to have conveyed all her interest. When the legal title to a lot occu- pied, or a homestead, is in the husband, he and his wife, by joiuing in an absolute oonveyance thereof, may undoubtedly make the pur- chaser a good title; and their right to make a conditional sale, to execute a mortgage or deed of trust, is equally clear, unless the same is prohibited by statute. In re Gox, 2 Dill. 320; Babcock v. Hoey, 11 lowa, 376 ; Pfeiffer v. Rhein, 16 Cal. 6e3. �It is conceded that in general the wife is not a proper party to an a«tion of ejeotment for property in the possession of the husband, and in which she holds no separate estate in her own name. The posees- sion of the husband is the possession of the wife. Bledsoe v. Simms, 53 Mo. 305. �But it is insisted that because the property here is a homestead a different rule should prevail. We have already seen that as against her own deed the wife can have no separate present right of posses- sion, and we are therefore constrained to hold that the general rule is applicable to this case, and that she is not a proper party. �3. It is said that the sale under the deed of trust was void bebause the general execution was still in the hands of the marshal, and the defendant had until the fifteenth of September, the return-day of the writ, in which to satisfy the same by payment. It is true that the execution remained in focce and was not necessarily returned prior to that date, but it is not true that the defendant had the right to postpone the sale under the deed of trust until the expiration of that period. He could deprive plaintiff of its rights under the deed v.8,no.5— 20 ��� �