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of, shall be alienated, or in case of any transfer or comes within the apparent meaning of the words in change of title to the property insured, or any

the condition of forfeiture, it is proper, then, to part thereof, or of any interest therein, without consider whether there is anything in the nature the consent of the company indorsed thereon, or of the contract, or in the purposes for which it was if the property hereby insured shall be levied entered into, to contract the apparent meaning and upon, or taken into possession or custody on any restrict the words used. A reason why the company legal process, or the title to or possession be disa might intend to, and might prudently require that puted in any proceeding at law or in equity, this any diminution of the interest of the insured in policy shall cease to be binding upon the com- the property should work a forfeiture, unless conpany."

sented to by it, is obvious. No company will On the 17th of May, 1876, Sossamon & Co., be- generally insure property for its full value. To ing indebted to Cohen and Rosler in the sum of insure it for more than its value is justly regarded $881.95, mortgaged the goods aforesaid, and also as hazardous, and an inducement to fraud. A a certain piece of land and other personal prop- company looks to the amount of interest in property to Cohen and Rosler, with power to sell the erty which the insured has at risk as a principal property if the debt was not paid by the first of reason for expecting from him care and watchfulOctober, 1876, on giving twenty days' notice of the ness to protect it from loss. Every diminution of sale. This mortgage was duly registered. The the interest of the insured tends to diminish the judge was of opinion, upon these facts, that the watchfulness which is impliedly stipulated for, plaintiff could not recover, and he thereupon sub- and when that interest is substantially wholly mitted to a non-suit and appealed. To cite and parted with in any manner, it is equivalent to an to analyze the numerous cases to which we were absolute alienation, which is admitted to be a referred on the argument, would be a labor with- ground of forfeiture. In many cases, a mortgage out useful result. They may be found collected in on property to its value, or for even less, is subMay on Insurance and in the briefs of counsel. stantially an alienation, for although after a loss They generally turn on the language of the con- of the property the debt, or the residue of it, dition, under which a forfeiture of the policy is would continue owing, yet the insured might little claimed to have been incurred. It has been held regard his mere personal liability. At all events, it that, under a condition against alienation, no fur- is neither unreasonable nor unjust to introduce in feiture is incurred by mortgaging the property. a policy such a condition of forfeiture. There is At least not until foreclosure, although the right nothing in it to lead to a suspicion of fraud or deto redeem has been lost at law and turned into an ception on the insured, and having deliberately equity. This is because, in many of the Northern and knowingly entered into it, there is no more states, a mortgage is not regarded as creating an reason why it should not be enforced against him estate in the mortgaged property, but merely a than the terms of any other contract would be. lien on it. A somewhat different view has been

Judgment below affirmed. held commonly in this and other states. But we were referred to no case in which it was held that giving a mortgage did not work a forfeiture, where

HUSBAND AND WIFE-HOMESTEAD. the terms of the condition were as comprehensive as they are in this case. There are two consider

WELLS v. CAYWOOD. ations on which, it seems to me, the question of forfeiture may always be fairly and reaso!ably de- Supreme Court of Colorado, March, 1878, cided.

HON. HENRY C. THATCHER, Chief Justice. 1st. Does the making of a mortgage come SAMUEL H. ELBERT, } Associate Justices. within the words of the condition, as commonly

F. understood? If it does not, a forced meaning

1. HUSBAND AND WIFE.-Under the laws of Coloshould not be put on the words in favor of the

rado, the wife is so far relieved from the disability of company, while if it does the natural and usual

coverture, as existing at common law, that she is no meaning must be allowed to them, notwithstand- longer sub potestate viri, in respect to real or personal ing the conditions are in fine print, if it be legible. property, and is as capable of the independent acquisi

If, in deference to what seems to be the weight tion, enjoyment and disposal of the same as if the of decisions, we admit that a mortgage is not an

coverture did not exist. alienation, even after a forfeiture of the legal es- 2. THE LAWS AFFECTING THIS being in the nature tate by non-payment of the debt at maturity, yet

of enabling statutes, must be liberally construed to efit must be considered, under such circumstances,

fect the purpose of their enactment. as making a material change in the interest of the 3. WHERE A DEED OF TRUST is executed to secure insured in the property—at least as much as a levy

a note given to the wife, and the husband is made the

trustee in the deed, he can, at a sale under such deed upon and seizure of the goods under execution,

of trust, convey to the wife as fully as to any other which is specially named as a ground of forfeiture.

person. Both, at law, take the property out of the mort

4. EJECTMENT-EVIDENCE.- In ejectment it does gagor, or defendant in execution, and vest it in

not devolve upon the plaintiff relying on a deed made another person; while, in substance, both are

by a trustee at a sale under the trust deed, to show merely liens, from which the property may be ex- that the trustee complied with the conditions preonerated by payment.

scribed in the deed of trust. The legal estate passes 2d. When, as in this case, the making of a mortgage

by the trustee's deed-any defects in the execution of

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the trust are a subject of inquiry for a court of equity. The deed of trust of August 11th from Benson to

5. ILLEGALITY IN CONSIDERATION NO DEFENSE.- Caywood was signed by Benson alone. The verThe plaintiff having made out his case by showing a dict and judgment in the lower court were for complete legal title, the defendant can not defeat a re- plaintiff, Caywood, whereupon Wells appealed. covery by showing that the consideration recited in the “Dower and the tenancy by the curtesy are aboldeed was either wanting, or was illegal, or fraudulent.

ished, and neither husband nor wife have any The title having passed, the deed can not be avoided by showing the illegal consideration.

share in the estate of the other, save as by the

statute provided.” Rev. Stats. Col. 1868, p. 259. 6. IF THE OBJECTION TO A DEED by which plain

“ Every householder, being the head of a family, tiff claims title goes not to the consideration, but to

shall be entitled to a homestead." "To entitle any the execution of the deed, it would be a good legal defense, admissible in ejectment under the plea of the

person to the benefits of the IIomestead Act, he general issue.

must cause the word • homestead 'to be entered of 7. HOMESTEAD HOW ACQUIRED.

record in the margin of his recorded title to the

The right of homestead is acquired by writing upon the margin of

same, and such homestead shall only be exempt the record of the deed conveying the land to the claim

while occupied as such by the owner thereof, or ant the word “Homestead." Until that is done, no his or her family." By section 6 of the Homestead right of homestead exists. Marking the word "Home- Act, it is provided that “nothing in said act shall stead" on the record after given a deed of trust, al- be construed to prevent the owner and occupier though at the time of giving it the grantor was mar

of any homestead from voluntarily mortgaging the ried, a householder, the head of a family and residing on the premises, and was not joined by his wife in the

same, provided no such mortgage shall be binding deed, does not invalidate, affect, or avoid the deed of

against the wife of any married man who may be trust.

occupying the premises with him, unless she sign

and acknowledge the same.” R. S. 1868, p. 385. APPEAL from the District Court of Boulder

Any married woman may make a will, but she County :

shall not bequeath away from her husband more The action was begun in July, 1876. The decla- than one-half of her property, both personal and ration was under the statute in the name of the real, without his consent in writing.” “And in case real parties, and with the usual statutory aver- any married man shall deprive his wife of over onements of title in fee, possession, entry by defend- half his property by will, it shall be optional with ant and unlawful withholding. Plea, general is- such married woman, after the death of her hussue, under the statute, which enacts that, in eject- band, to accept the conditions of said will, or onement, “ the defendant shall plead the general is- half of his whole estate, both real and personal." sue only, which shall be that the defendant is not R. S. 1868, p. 455. The other facts and local statguilty of unlawfully withholding the premises utes applicable are sufficiently set out in the opinclaimed by the plaintiff, as alleged in the declara- ion of the court

and upon such plea the defendant Wells & Carr, for appellant, cited: 1 Sharswood's may give the same matter in evidence, and the Black. 442; Voorhies v. Pres. Church, 17 Barb. same pleadings shall be had as upon the plea of not 103; Fowler v. Trebein, 16 Ohio St. 493; Abbott v. guilty in the present action of ejectment, except Hunt, 7 Blackf. 510; Martin v. Martin, 1 Main, as by the statute otherwise provided; the defend- 391; Frizzell v. Rozier, 19 Mo. 448; Graham v. ant may likewise give in evidence any matter Van Wyck, 14 Barb. 531; Winans v. Peebles, 31 which, if pleaded in the present writ of right, Barb. 371; White v. Wagner, 32 Barb. 250; Ib., 25 would bar the action of the plaintiff.” R. S. 1868, N. Y. 328. On the rights and disabilities of covertpp. 274 and 275.

ure. Collins v. Blanturn, 1 Smith Lead. Cases, 164; The present action of ejectment, and present Hoyt v. Macon, 2 Col. 502; Nellis v. Clark, 4 writ of right, refer to those actions as at common Hill, 426; Gay v. Hook, 4 Coms. 455; Rev. Stat. U. law.

S., $ 2290; 16 Texas, 314; 9 Texas, 426; 19 N. H. By stipulations filed in the case, it appears that 196; 22 Miss. 18. Clark v. Underwood, 17 Barb. one Albert W. Benson was the common source of 202; Tyler v. Yates, 3 Barb. 228, on the illegality title; that on the 10th of August, 1873, he was the and moral turpitude of the consideration for the owner in fee of the premises, residing on them deed, and the right to show it to defeat a recovery with his wife and family as his home; that he and in ejectment. On the homestead claim they cited: his wife and family continued to reside on them Haskins v. Litchfield, 31 Il. 137; Conner v. Nichuntil June 4th, 1875, when they removed from ols, Ib. 148; Thornton v. Dryden, Ib. 200, and deny there and have not resided on them since; that the authority of Drake v. Koot, 2 Col. 685, arguwhile he was residing on them with his family, ing that the point before the court in that case was to wit: on February 4th, 1875 (long after the deed the insufficiency of the verdict of the jury in form, of trust hereafter referred to was given), Benson and that the remainder of the opinion was a mere wrote on the margin of his recorded title to the obitur dictum, and not good law, relying for this premises the word • Homestead."

view on the statute (R. S. 385), and Rupert v. At the trial, objection was made to the suffi- Mark, 15 II. 510; Pitman v. Gaty, 5 Gil. 186; Mcciency of the proof of advertisement of the trus- Connell v. Reed, 4 Scam. 117; Phelps v. Root, 9 tee, on the ground that the files of the paper were Wis. 70; Spencer v. Fredenhall, 15 Wis. 666; Barthe best evidence of that fact. When plaintiff ker v. Duton, 28 Wis. 367; Campbell v. Babcock, rested, the defendant moved for a non-suit for 27 Wis. 512; Hoskins v. Litchfield, supra. failure of proof.

The motion was overruled. Geo. D. Reynolds, for appellees, cited: Laws of


tion; *

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Colorado, 1874, p. 185, (see Revision of 1876, page ment of his or her proprietary rights, and to con615), in support of the proposition that the disa- fer on each the absolute dominion over the propbilities of coverture are entirely abolished. In erty owned by them respectively. The legislation ejectment the action is not on the deed; only those of our own state upon this subject, although yet things which go to impeach its execution can somewhat crude and imperfect, has doubtless been be proven; the deed can not be attacked collat. animated by a growing sense of the unjustly suberally for matters outside of the deed, and that the ordinate position assigned to married women by defendant is estopped from proving or pleading his the common law whose asperities are gradually own infamy to defeat his own deed. 2 Greenl. Ev., softening and yielding to the demands of this (Red. Ed.). sec. 300, p. 292; Collins v. Blantern, enlightened and progressive age. The benignant as reported in 6th Am. Ed. of Smith's Lead. Cases, principles of the civil law are being slowly but Vol. I, part 1, secs. 490, 495, 497 and 499. Also, surely grafted into our system of jurisprudence. notes to same case, pp. 629, 636, 637; Merryweather “In the civil law,” says Sir William Blackstone, v. Nixon, 2 Smith Lead. Cases, 6th Am. Ed., p. Com. (Cooley) 444 “ husband and wife are consid530, sec. 459; Inhabitants Worcester v. Eaton, 11 ered as two distinct persons, and may have sepaMass. 368; 2 Greenl. Cruise Dig., p. 497, sec. 26; 1 rate estates, contracts, debts and injuries; and Litt. (Ky.) 62, Thomas v. Thomas; Hovey v. Hob

therefore in our ecclesiastical courts, a woman may son, 51 Maine, 62; Doe d. Roberts v. Roberts, 2 B. sue and be sued without her husband." & Ald. 367; Dyer v. Day et al., 61 Ill. 336; Doe v. The courts which have ever been conservative Roll, 7 Ohio, 70; Bayard v. Colefax, 4 Wash. Circt. and which have always been inclined to check Ct. 38; Greer et al. V. Mezees et al., 24 How. with an unsparing hand any attempted departure (U. S.) 268; Hickey's lessee v. Stewart, 3 How. from the principles of the body of our law which (U. S.) 750; Broom's Legal Maxims, secs. 571 and were borrowed from England, in the states which 569. For the interpretation of the homestead law, were the first to pass enactments for the enlargehe relied on Drake v. Root, 2 Col. 685.

ment of the rights of married women, regarding THATCHER, C. J., delivered the opinion of the such enactments as a violent innovation upon the court:

common law, construed them in a spirit so narrow This was an action of ejectment brought by and illiberal as to almost entirely defeat the intenthe appellee against appellant in the court tion of the law makers: but generally with a below. On the eleventh day of August A. D. promptness that left little room for doubt that a 1873, Albert W. Benson being at that time the succeeding legislature would reassert in a more owner in fee of the premises in dispute, made à unequivocal form the same principles which the promissory note for the sum of $250.00 payable to courts had before almost expounded out of existCatherine D. Caywood, the wife of William W. ence. To understand the marked changes which Caywood, two years after the date thereof. On our own legislation has wrought in this respect, it the same day, to secure the payment of this note, is necessary that we should consider the disabling Mr. Benson conveyed to Wm. W. Caywood, as incidents and burdens attendant upon coverture at trustee, the disputed premises, with power to sell common law. At common law the husband and and dispose of the same at public auction in the wife are one person, and as to every contract there manner prescribed in said deed of trust, in case the must be two parties, it followed that they could grantor therein should make default in the pay- enter into no contract with each other. The ment of the promissory note, or any part thereof, very being or legal existence of the wife is susor the interest thereon, and to make, execute and pended during the marriage or at least is incorpodeliver to the purchaser at such sale a good and rated and consolidated in that of the husband, sufficient deed of conveyance for the premises under whose wing, protection and cover she persold. After the maturity of the note, Mr. Benson forms everything. Upon the principle of a union having made default in its payment, the trustee of person in husband and wif depend almost advertised and sold and conveyed the premises to all the legal rights, duties and disabilities that Mrs. Caywood, the then holder of the note. The either of them acquire by marriage. i Cooley's deed of trust and the note were offered and read Blackstone 442. All the personal estate, as money, in evidence without objection. To the admission goods, chattels, household furniture etc., that were of the trustee deed from Mr. to Mrs. Caywood, the property and in possession of the wife at the counsel for the defendant in the lower court time of the marriage are actually vested in the objected on the sole ground that it was a deed husband, so that of these he might make any disexecuted by a husband to his wife. This objection position in his lifetime, without her consent, or was overruled, the deed admitted in evidence might by will devise them, and they would without and an exception taken. The admission of the any such disposition go to the executors or admindeed in evidence is assigned for error.

istrators of the husband, and not to the wife, This brings us to the consideration of the question though she survive him. Debts due to the wife as to the relation of husband and wife under the are so far vested in the husband that he may by laws of this state with respect to the independent suit reduce them to possession. 2 Bacon's Abrdgt. acquisition, enjoyment and disposition of property. 21. The rents and profits of her land during covThe general tendency of legislation in this country erture belong to the husband. has been to make hushand and wife equal in all The law wrested from the wife both her perrespects in the eye of the law, to secure to each sonal estate and the profits of her realty, however untrammeled by the other the full and free enjoy- much it might be against her will, and made them liable for his debts. An improvident husband had law-making power. With her own property, she, it in his power to impoverish the wife by dissipa- as any other individual who is sui juris, can do ting her personal estate and the profits of her what she will, without reference to any restraints realty over which she, under the law, by reason of or disabilities of coverture. Whatever incidents, the coverture, had no control.

privileges and protits attach to the dominion of The wife in Colorado is the wife under our stat- property, when exercised by others, attach to it in utes, and not the wife at common law, and by our her hands. Before this statute, her right to convey statutes must her rights be determined; the com- was not untrammeled, but now it is absolute, mon law affecting her rights, as we shall presently without any qualification or limitation, as to who see, having been swept away. By our law, it was shall be the grantee. Husband and wife are made declared that the property, real and personal, strangers to each other's estates. There are no which any woman may own at the time of her words in the act that prohibit her from making a marriage, and the rents, issues, profits and pro- conveyance directly to her husband, and it is not ceeds thereof, and any real, personal or mixed within the province of the court to supply them. property that shall come to her by descent, devise When a right is conferred on an individual the or bequest, or be the gift of any person except court can not, without transcending its legitimate her husband, shall remain her sole and separate functions, hamper its exercise by imposing limiproperty, notwithstanding ber marriage, and not tations and restrictions not found in the act conbe subject to the disposal of her husband or liable ferring it. Were we to construe' this enabling for his debts. R. S. 1868, p. 454. The legislature, statute so as to deprive the wife of the right to however, being reluctant to allow a married wo- elect to whom she will convey her property, we man the absolute dominion over her own real would, it is believed, thwart the legislative will, property, further provided that she could only whose wisdom we, as a court, are not permitted convey her estate in lands by uniting with her to question. The disability of husband and wife husband in any conveyance thereof, and acknowl- to contract with and convey to each other, was at edging the same separate and apart from her hus- common law correlated and founded mainly upon band. R. S. 1868, p. 111, sec. 17.

the same principle. viz.: the unity of baron and It was not to be expected that our laws would feme. The removal, in respect to the wife, of a long be permitted to remain in this anomalous and disability that is mutual and springing from the incongruous condition—declaring in one section same source, renoves it also as to the husband. that the wife's real property should remain her The reason, which is the spirit and soul of the separate estate, not subject to disposal by her hus- law, can not apply to the husband, as it no longer band, and in another that she could not convey it applies to the wife. If she may convey to the without the consent of her husband, which is nec- husband the husband may convey to the wife. essarily implied by his uniting in a deed with her. Allen v. Hooper, 50 Maine 371; Stone v. Gazzonn, By “ an act concerning married women,” ap- 46 Alabama 269; Burdens v. Ampesse, 14 Mich. proved February 12th, 1874 (see Revision of 1876, 91; Patten v. Patten, 75 Ill. 443. p. 615), it is provided in section 1, that any wo- Perhaps the right of the husband, when acting man, while married, may bargain, sell and convey in a representative capacity in autre droit to make real and personal property, and enter into any con- a deed to his wife might be supported at common tract in reference to the same, as if she were sole. law. Co. Litt., 112 a. 187 b; Com. Digest, BarSection two provides that she may sue and be ron &. Feme D. 1. This doctrine, however, is sued in all matters the same as if she were sole. repudiated in New York (Leitch v. Wells, 48 BarSection three provides that she may contract debts bour 654), but sanctioned in Pennsylvania (Dunin her own name and upon her own credit, and das's Appeal, 64 Penn. 332). We, however, rest execute promissory notes, bonds, bills of exchange, our decision, not upon this mooted doctrine, but and other instruments in writing and may enter broadly upon the statute, under which a husband, into any contract as if she were sole. Section four when acting, not in a representative capacity, but in repeals section seventeen of chapter seventeen of his own right, has, as we have seen, the right to the Revised Statutes, which required the husband convey directly to the wife. But it may be urged to unite with the wife in conveying her separate that if not by reason of the disability of coverture, estate.

then by reason of the peculiarly intimate relation of This is essentially an enabling statute, and as husband and wife, and the consequent opportunity such must be liberally construed to effectuate the to commit and conceal fraud, the same principle purpose of its enactment. It confers, in terms en- that prohibits a trustee from executing a trust in larged, rights and powers upon married women. favor of himself, also prohibits him from executing In contemplation of this statute, whatever may be it in favor of his wife. This position is not without the actual fact, a feme covert is no longer sub po- force. Dundas's Appeal, 64 Penn. 332. It must, testate viri, in respect to the acquisition, enjoyment however, be borne in mind that it is only in the and disposition of real and personal property. absence of an express agreement that the law,

This statute asserts her individuality, and eman- suspicious of fraud and collusion where a fiduciary cipates her in the respects within its purview from relation exists, will not permit a trustee to become the condition of thraldom, in which she was either directly or indirectly a purchaser at his own placed by the common law. The legal, theoreti- sale; but where the right to purchase is conferred cal unity of husband and wife is severed so far as in clear terms by the instrument appointing him, is necessary to carry out the declared will of the or where, as in the case before us, the wife, as the







holder of the note, is, in unmistakable language, here presented was very fully considered in the authorized to buy at the trustee's sale, the law in- case of The Inhabitants of Worcester v. William terposes no impediment to the validity of a sale so Eaton, 11 Mass. 368, in a writ of entry in which made. Perry on Trusts, Sec 602 ; Dundas's Ap- the plaintiff sought to avoid the deed under which peal, cited supra, is precisely in point.

defendant claimed title by showing that it was The evidence of Eugene Wilder, one of the pro- executed for an illegal consideration. The conprietors and publishers of the Boulder County sideration was an agreement to compound a felony. Neros, (which was received without objection) The court says: “A bond or other obligation, or sufficiently proves the due publication of the trus- a written promise, founded upon such a consideratee's notice of sale, if the proof of that fact was tion, may be avoided : because the law will not upnecessary to entitle the plaintiff to offer her deed hold a contract or permit a party to enforce it, if it in evidence.

was made to secure the price of an unlawful act. In our view, in order to entitle a purchaser

If one holds the obligation or promise of at a trustee's sale to maintain ejectment, it does the other, to pay him money, or do any other valnot devolve upon him to show that his grantor uable act, on account of such illegal transaction, (the trustee) had complied with the conditions the party defendant may expose the nature of the of v. Allen, 5 transaction to the court, and the law will say:

• Our Taylor v. King, 6 Munf. (Va.) 358; Harris v. the innocent and to vindicate the injured, not to Harris 6 Munf. 367.

aid offenders in the execution of their unjust proIn Dawson v. Hayden, 67 Ill. 52, it was held if jects,' and if the party who has foolishly paid his a trustee, under a power in a deed of trust, makes money repents his folly, and brings his action to a conveyance of the premises, without complying recover it back, the same law will say to him: “You with the provision in the deed of trust, requiring have paid the price of your wickedness, and you publication of sale for a specified period, the legal must not have the aid of law to rid you of an inestate will nevertheless pass to the purchaser, and convenience which is a suitable punishment of the deed to him can not be impeached on that

your offense.

A deed of bargain and ground by a defendant in ejectment. It is a prop- sale, signed, sealed, delivered, acknowledged and er subject of inquiry in a court of equity.

recorded, is an actual transfer of the land to the A legal though defeasible title was by the trust grautee, as much as the delivery over of a sum of deed vested in Mr. Caywood. Perry on Trusts, money or a personal chattel."" Sec. 602, and cases cited. By the deed executed The court held that, the title having passed, the by Mr. Caywood to his wife, although inartificially deed could not be avoided by showing the illegal drawn, the legal title passed to the purchaser and consideration. It is not doubted that if the debecame absolute in a court of law. That it should fense had gone, not to the consideration, but to so pass was the evident intent of the grantor the execution of the deed, it would have been adtherein. The deed purports on its face to have missible. Thus it might be shown that the deed been made for the sole purpose of executing the was executed under duress, or that it had been trust. To give it any other construction would be misread to the grantor, or other evidence might to defeat the manifest purpose of its execution. be given tending to prove that he did not assent to

As when the plaintiff rested she had shown by it. But want of, or fraud in, or illegality of the her deeds that the legal title to the premises in consideration in a plaintiff's deed, may not be dispute was in her, the motion for a non-suit was shown by a defendant in ejectment. The defendproperly denied. The defendant offered in evi- ant's remedy, if any he has, is not in a court of dence the deposition of A. W. Benson, which the law. Doe dem. Roberts v. Roberts, 2 Barn. & Ald court excluded. The exclusion of the deposition 367; Taylor v. King, 6 Munf. (Va.) 365; Dyer v. is assigned for error. The deposition tended to Day, 61 ni. 336; Hovey v. Hobson, 51 Maine 67. show that the note and trust deed offered in evi- The deposition of Benson was properly excluded. dence were executed in pursuance of an agree- Defendant then offered to introduce in evidence, ment between Benson and William W. Caywood, a warranty deed, dated June 3d, 1875, from Alfred by which Benson was to enter under the pre-emp- W. Benson, and Helen Benson, his wife, purporttion laws of the United States, a certain tract of ing to convey the premises in dispute to him, and land, and convey the same to Mr. Caywood. Had containing a waiver of homestead exemption in Benson, in pursuance of the agreement, entered the body of the deed. By the stipulation filed in and conveyed the land to Caywood, he would have the cause, it appears that Benson, on the 4th day been guilty of great moral turpitude, involving of February, 1875, a year and a half after the exethe crime of purjury. The consideration was cution of the trust deed to Caywood, caused the therefore illegal. Hoyt v. Macon, 2 Col. 502. word homestead ” to be entered of record on the

Can a defendant in ejectment show that the margin of his recorded title. The law requires consideration for a deed, under which the plain- such entry to be made to entitle a householder tiff claims title, was either wanting or was illegal to a homestead. R. S., 385. It is the record entry or fraudulent? That a conspiracy existed to de- that proclaims to the world that the owner of the fraud the United States out of the title to one hunc property claims it as a homestead. Until the endred and sixty acres of land the deposition tends to try is made it is not in contemplation of law a show. Nothing appears to relieve the consideration homestead, and therefore it can not be said that from the taint of illegality and fraud. The question as the wife of Benson did not join with him in the

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