H. H. PORCH, Plaintiff-Appellant, v. J. C. PATTERSON, ANNIE B. PATTERSON, and GEORGE H. GREENFIELD, Defendants. ANNIE B. PATTERSON, Defendant-Respondent
Porch v. Patterson
Norcross, C. J.: I concur.
H. H. PORCH, Plaintiff-Appellant, v. J. C. PATTERSON, ANNIE B. PATTERSON, and GEORGE H. GREENFIELD, Defendants. ANNIE B. PATTERSON, Defendant-Respondent.
[No. 2161]
H. H. PORCH, Plaintiff-Appellant, v. J. C. PATTERSON, ANNIE B. PATTERSON, and GEORGE H. GREENFIELD, Defendants. ANNIE B. PATTERSON, Defendant-Respondent.
[156 Pac. 439]
1. Appeal and Eeroe— Conditional Ao-eirmance.
Where the principles of a case are controlled by the decision in a former case in which a petition for rehearing is pending, the decision rendered in the case at bar will-be subject to further order, dependent upon the final disposition of the petition for rehearing.
Appeal from the Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
Action by H. H. Porch against J. C. Patterson and others. From a judgment for the defendants, plaintiff appeals.
Affirmed on conditions.
E. A. Klein, for Appellant:
The signature of respondent to the mortgage was not necessary, under the constitution, as no written declaration of a homestead was ever filed by her. Section 30, article 4, of the constitution, required the legislature to enact laws providing for the recording of homesteads within the county in which they shall be situated; and in compliance therewith section 2142, Revised Laws, was enacted; and section 2160, Revised Laws, subsequently enacted, is void, being in violation of the direct and mandatory provisions of section 30, article 4, of the constitution.
B. F. Curler and F. S. Gedney, for Respondent:
Appellant’s contention as to the law of homesteads has been repudiated by this court. (Estate of Walley, 11 Nev. 262; In Re Cook’s Estate, 34 Nev. 217; Goldman v. Clark, 1 Nev. 607.)
A homestead, as provided by law, shall be exempt from any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists. (Const. Nevada, sec. 30, art. 4.)
Section 2160, Revised Laws, is simply a limitation upon the power of the husband to alienate or encumber a certain kind of community property. Such power exists in the legislature, in the absence of a constitutional inhibition. (Lies v. Diabler, 12 Cal. 328; Holyoke v. Jackson, 3 Wash. T. 239, 3 Pac. 841; Adams v. Black, 6 Wash. 528, 33 Pac. 1074; Gund v. Parke, 15 Wash. 393, 46 Pac. 408; Warburton v. White, 174 U. S. 484, 44 L. Ed. 555.)
By the Court,
McCarran, J.:
This case presents the precise question involved in the case of First National Bank of Ely v. Meyers, 39 Nev. 235, 150 Pac. 308. Upon authority of that case the judgment will be affirmed.
We appreciate that the question involved in these two cases is of the greatest importance, not only to the parties to these two suits, but to the bar and the people generally. The learned junior justice, who files a dissenting opinion in this case, did not participate in the decision by this court in the Meyers case, supra. In the latter case there is now pending a petition for a rehearing. We have concluded not to determine the petition for a rehearing in the Meyers case until after the publication of the opinions filed in this case and opportunity afforded for any member of the bar to be heard amicus curise upon the question involved. We are advised that counsel for appellant in the case at bar has left the state, and whether he or other counsel for appellant appears further by way of petition for a rehearing in this case, the judgment now entered will be subject to further order dependent upon the final disposition of the petition for rehearing in the Meyers case, so that the final disposition of the two cases by this court will be the same.
The two points of view, relative to theproper construction to be placed on our constitutional and statutory provisions concerning homesteads and community property, are presented in the opinion heretofore rendered in the Meyers case and in the dissenting opinion in this case. The divergent views are worthy of most careful consideration, not only by the members of the court, but by the bar in general. Subject to the conditions heretofore stated, the judgment is affirmed.
Norcross, C. J.: I concur.