her husband, which misdescribes the property, under the statute concerning conveyances, which provides that recorded conveyances shall from the time of filing impart notice of the contents to subsequent "purchase"s and mortgagees" only.

2. Under Gen. St. § 539, giving a wife the right to select a homestead out of the community property, and file the required declaration, where she does so, and the husband has given a prior mortgage which, because of error in description, does not cover the homestead, her rights are not affected by the fact that the parties to the mortgage intended it to embrace such homestead.

3. Equity will not reform a mortgage on community property executed by a husband, in an action by a mortgagee against the wife, who has filed a declaration of homestead on said property.

Appeal from district court, Ormsby county; C. E. Mack, Judge.

Action by F. B. Adams against Archie Baker and Lucy Baker, his wife. From a decree in favor of plaintiff, defendant Lucy Baker appeals. Reversed.

Alfred Chartz, for appellant. Trenmor Coffin, for respondent.

BONNIFIELD, J. This action was brought by F. B. Adams, as plaintiff, against Archie Baker and Lucy Baker, his wife, as defendants. The object of the action was to secure the reformation and foreclosure of an alleged mortgage executed by Archie Baker to said plaintiff. The plaintiff alleges in his complaint, in substance and in brief: That on the 9th day of October, 1895, the defendant Archie Baker was indebted to the plaintiff in the sum of $764.75, and executed and delivered to plaintiff his certain promissory note for said sum on said day. That, at the time of the execution of said note, said defendant Archie Baker, the better to secure the payment of the same, executed to plaintiff his certain mortgage, a copy of which is attached to the complaint, and made part thereof, as an exhibit. That the true description of the land and premises intended to be described and embraced in said mortgage is as follows: "All that portion of block sixty-four of Proctor and Green's division of Carson City, Ormsby county, state of Nevada, described as follows: Commencing at the southwest corner of said block sixty-four, where the east line of Nevada street intersects the north line of Robinson street, as said streets are laid down on the official map of said city; running thence north, along the east line of Nevada street, eighty-eight feet; thence, at right angles, east, parallel with the north line of Robinson street, a distance of seventy-four feet; thence, at right angles, south eighty-eight feet, to the north line of Robinson street; thence west, along the north line of Robinson street, to the place of beginning." That, by an oversight, inadvertence, or mistake, said property was described in said mortgage as follows: "The property at the southwest corner of the block in Carson City, said county and state, of which Spear street is the western boundary, and Robinson street the southern boundary, commencing at the corner of the block at the intersection of Spear and

Robinson streets; thence easterly, along the north line of Robinson street, one hundred feet; thence, at right angles, northerly, at right angles with Robinson street, seventyfour feet; thence westerly, parallel with Robinson street, one hundred feet, to Spear street; thence southerly, along the east line of Spear street, seventy-four feet, to the place of beginning." That Nevada street, and not Spear street, forms the western boundary of said land and premises; and that Spear street is the first street south of Robinson street, and running parallel therewith. That defendant Lucy Baker is the wife of the defendant Archie Baker; and that said defendants have at all times herein mentioned resided upon said land and premises, and have occupied the same as a homestead. That said Lucy Baker claims some interest in said land and premises by reason of having filed a declaration of homestead thereon since the execution and recordation of said mortgage. That, at the time of and before the filing of said declaration of homestead, she had notice and Knowledge of the fact of said indebtedness of Archie Baker to the plaintiff, and of the execution of said note and mortgage to secure the same, and of the said oversight, inadvertence, or mistake in the description of the premises intended to be described therein; and that she had knowledge and notice that said mortgage was intended to embrace and cover by a correct description the property occupied by said defendants as a homestead. Archie Baker made default. Lucy Baker answered for herself alone, and, by her answer, denies that Archie Baker at any time executed any mortgage or any lien of any character whatsoever upon the land described in her homestead declaration to the plaintiff, or at all; denies specifically each allegation of the complaint charging that she had knowledge and notice of said indebtedness, of the execution of said note and mortgage, or either of them, of the oversight, inadvertence, or mistake and of the intent that said mortgage was to embrace or cover said homestead premises. It is alleged by the answer that said property is the community property of the defendants; and all the necessary facts to entitle her to said property as a homestead under the statute are properly set out in the answer, and established by the proofs. The court adjudged and decreed, to wit, "that plaintiff's mortgage be, and the same is hereby, reformed by inserting therein, in lieu of the description of the property now therein contained, the following, to wit [here follows the description first above given, as set out in the complaint, and which is substantially the same as the description contained in said homestead declaration]." It is further decreed "that said reformation shall take and have effect from and after and as of the date of the recording of said mortgage, to wit, October 10, 1895." It was further decreed, in form and substance, usual in case of foreclosure of mortgages on real estate. From the

decree and the order of the court denying her motion for new trial, Lucy Baker appeals.

The said homestead declaration was duly filed on the 7th day of April, 1896, and before this suit was commenced. The case seems to have been tried in the court below, and was argued here by respective counsel, mainly upon the theory that the rights of the parties depended upon whether or not the appellant, before she filed her said declaration, had knowledge or notice, actual or constructive, of the execution of said mortgage, and of the alleged intent of the parties thereto that the mortgage should embrace and cover said homestead property. The evidence, without any conflict, shows that the appellant had no knowledge and had no notice whatever of the execution of said mortgage before the commencement of this action, unless the filing of said mortgage in the office of the county recorder gave her constructive notice of the same. Counsel for respondent contends that said filing gave her such notice of its contents, and was legally sufficient to put her on inquiry as to the facts. The matter of constructive notice is entirely a creature of the statute. Grellett v. Heilshorn, 4 Nev. 526. Under our statute concerning conveyances, every conveyance of real estate, and every instrument of writing setting forth an agreement to convey any real estate, or whereby any real estate may be affected, acknowledged, or proved, and certified and recorded, in the manner prescribed by said statute, shall, from the time of filing the same with the county recorder for record, impart notice of the contents thereof to subsequent purchasers and mortgagees only. Sharon v. Minnock, 6 Nev. 377; McCabe v. Grey, 20 Cal. 516..

The appellant is neither a purchaser nor mortgagee of said premises. Counsel argues that, the property being the community property of the defendants, the husband had a perfect right to mortgage the property without the knowledge or consent of the wife; citing Child v. Singleton, 15 Nev. 461. It is true that the husband may, by a valid mortgage, and without the knowledge or consent of the wife, subject the homestead premises to a lien superior to the wife's homestead claim made and filed subsequently to the making of the mortgage. But the control of the husband over the community property, and his power to alienate or mortgage the same, without the co-operation and consent of the wife, may be arrested and defeated by the wife filing her declaration claiming the same as a homestead at any time before the consummation of the alienation or mortgaging of the premises by the husband. Under the statute concerning the exemption of the homestead from forced sale, the wife has a perfect right to select a homestead out of the community property, and file the requir

ed declaration, without the knowledge or consent of her husband. Gen. St. § 539. And, when so selected, it is exempt from the payment of any mortgage thereon subsequently given, unless the same is executed and given by both husband and wife. It will be observed that the record shows that Robinson and Spear streets are parallel to each other, and extend through Carson City, east and west. The description in the mortgage will not apply to the said homestead premises, or to any other piece or parcel of land, and the alleged mortgage mortgaged nothing. It is admitted that said homestead premises were not embraced in or covered by said mortgage when the appellant filed her declaration, but it is claimed that it was intended to mortgage the same, and that the rights of the appellant are precluded by the intent of the parties to the said mortgage; that is, that the appellant's homestead claim was defeated by the state of mind of the mortgagor and mortgagee on the 9th day of October, and not by the alleged mortgage itself. But it requires prior alienation or a mortgage in fact of the community property by the husband, and not simply in intent, to defeat the legal effect of the wife's declaration claiming the same as her homestead.

We are clearly of opinion that the appellant had the right to claim said premises as a homestead, and that she is protected therein against any mortgage or pretended mortgage which by its terms mortgages nothing. The rights or equities of the respondent as against Archie Baker are not matters to be considered here, as they are not involved in this appeal. The premises in question became the homestead of appellant, as provided by law, and, as such, are protected by the constitution. We are of opinion that her homestead rights in the premises are superior to any equity of the respondent, and that he has none as against appellant. In all cases of mistake in written instruments, courts of equity will interfere only as between the original parties, or those claiming under them in privity, such as personal representatives, heirs, devisees, legatees, assignees, voluntary grantees, or judgment creditors, or purchasers from them, with notice of the facts. Story, Eq. Jur. § 165. Appellant belongs to neither of the above classes of persons in this case. It follows from the foregoing that the decree of the court reforming said mortgage, and foreclosing the same as against the appellant and her said homestead claim, is erroneous. The said decree is reversed, and the trial court will modify the same so that it shall not interfere with or impair the appellant's homestead claim in the premises.

BELKNAP, C. J., and MASSEY, J., con

cur.

decree and the order of the court denying her motion for new trial, Lucy Baker appeals.

The said homestead declaration was duly filed on the 7th day of April, 1896, and before this suit was commenced. The case seems to have been tried in the court below, and was argued here by respective counsel, mainly upon the theory that the rights of the parties depended upon whether or not the appellant, before she filed her said declaration, had knowledge or notice, actual or constructive, of the execution of said mortgage, and of the alleged intent of the parties thereto that the mortgage should embrace and cover said homestead property. The evidence, without any conflict, shows that the appellant had no knowledge and had no notice whatever of the execution of said mortgage before the commencement of this action, unless the filing of said mortgage in the office of the county recorder gave her constructive notice of the same. Counsel for respondent contends that said filing gave her such notice of its contents, and was legally sufficient to put her on inquiry as to the facts. The matter of constructive notice is entirely a creature of the statute. Grellett v. Heilshorn, 4 Nev. 526. Under our statute concerning conveyances, every conveyance of real estate, and every instrument of writing setting forth an agreement to convey any real estate, or whereby any real estate may be affected, acknowledged, or proved, and certified and recorded, in the manner prescribed by said statute, shall, from the time of filing the same with the county recorder for record, impart notice of the contents thereof to subsequent purchasers and mortgagees only. Sharon v. Minnock, 6 Nev. 377; McCabe v. Grey, 20 Cal. 516..

The appellant is neither a purchaser nor mortgagee of said premises. Counsel argues that, the property being the community property of the defendants, the husband had a perfect right to mortgage the property without the knowledge or consent of the wife; citing Child v. Singleton, 15 Nev. 461. It is true that the husband may, by a valid mortgage, and without the knowledge or consent of the wife, subject the homestead premises to a lien superior to the wife's homestead claim made and filed subsequently to the making of the mortgage. But the control of the husband over the community property, and his power to alienate or mortgage the same, without the co-operation and consent of the wife, may be arrested and defeated by the wife filing her declaration claiming the same as a homestead at any time before the consummation of the alienation or mortgaging of the premises by the husband. Under the statute concerning the exemption of the homestead from forced sale, the wife has a perfect right to select a homestead out of the community property, and file the requir

ed declaration, without the knowledge or consent of her husband. Gen. St. § 539. And, when so selected, it is exempt from the payment of any mortgage thereon subsequently given, unless the same is executed and given by both husband and wife. It will be observed that the record shows that Robinson and Spear streets are parallel to each other, and extend through Carson City, east and west. The description in the mortgage will not apply to the said homestead premises, or to any other piece or parcel of land, and the alleged mortgage mortgaged nothing. It is admitted that said homestead premises were not embraced in or covered by said mortgage when the appellant filed her declaration, but it is claimed that it was intended to mortgage the same, and that the rights of the appellant are precluded by the intent of the parties to the said mortgage; that is, that the appellant's homestead claim was defeated by the state of mind of the mortgagor and mortgagee on the 9th day of October, and not by the alleged mortgage itself. But it requires prior alienation or a mortgage in fact of the community property by the husband, and not simply in intent, to defeat the legal effect of the wife's declaration claiming the same as her homestead.

We are clearly of opinion that the appellant had the right to claim said premises as a homestead, and that she is protected therein against any mortgage or pretended mortgage which by its terms mortgages nothing. The rights or equities of the respondent as against Archie Baker are not matters to be considered here, as they are not involved in this appeal. The premises in question became the homestead of appellant, as provided by law, and, as such, are protected by the constitution. We are of opinion that her homestead rights in the premises are superior to any equity of the respondent, and that he has none as against appellant. In all cases of mistake in written instruments, courts of equity will interfere only as between the original parties, or those claiming under them in privity, such as personal representatives, heirs, devisees, legatees, assignees, voluntary grantees, or judgment creditors, or purchasers from them, with notice of the facts. Story, Eq. Jur. § 165. Appellant belongs to neither of the above classes of persons in this case. It follows from the foregoing that the decree of the court reforming said mortgage, and foreclosing the same as against the appellant and her said homestead claim, is erroneous. The said decree is reversed, and the trial court will modify the same so that it shall not interfere with or impair the appellant's homestead claim in the premises.

BELKNAP, C. J., and MASSEY, J., con

cur.

of

3. A mortgage of the property by the insured does not violate the following prohibition: "This policy shall be void if any change, other than by the death of the insured, takes place in the interest or title the subject of the insurance, whether by legal process, judgment, voluntary act of the insured, or otherwise." The term "change" means a transfer of interest or title, not an incumbrance, simply.

(Syllabus by the Court.)

Appeal from district court, Weber county; H. H. Rolapp, Judge.

Action by Edwin A. Peck against the Girard Fire & Marine Insurance Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Richards & Macmillan and A. E. Pratt, for appellant. A. R. Heywood and J. E. Bagley, for respondent.

ZANE, C. J. This is an action on a policy executed by the defendant to Erastus Christofferson, insuring his house against fire, in the sum of $1,000. The policy contained two provisions on which the defendant bases its defense. The language of the first is, "Loss, if any, payable to Edwin A. Peck, mortgagee, as his interest may appear;" and the language of the second is, "This pol* * shall be void icy * * if any change, other than by the death of an insured, takes place in the interest, title, or possession of the subject of the insurance, whether by legal process or judgment, or by voluntary act of the insured, or otherwise." The debt secured by the mortgage was $766.65. During the term of the insurance the property was damaged by fire in the sum of $692.50, and, upon a trial, judgment was rendered against the defendant for that amount, and for costs. case is before us for review.

*

**

The

The language of the provision first quoted amounts to an agreement by the defendant with Christofferson to pay the plaintiff, to the extent of the loss, if any, not exceeding $1,000, his mortgage debt. The defendant insists that the plaintiff could not sue alone; that the mortgagor should have united with him as plaintiff. We understand the weight of authority to be that a party may sue on a promise made, upon a sufficient considera

tion, to another, for his use and benefit. This court so held in the case of Thompson v. Cheesman, 48 Pac. 477. When the mortgage debt exceeds the loss, the rule, as we hold it, is that the mortgagee may recover the whole in his own name; but when the loss exceeds the debt the mortgagor and mortgagee may unite as plaintiffs, or each may sue for his own share, unless by the terms of the policy the whole is payable to the mortgagee. Palmer Sav. Bank v. Insurance Co. of North America (Mass.) 44 N. E. 211; Maxey v. Insurance Co., 54 Minn. 272, 55 N. W. 1130.

The defendant also contends that Christofferson forfeited plaintiff's right to the loss by a conveyance of the property after the insurance, and before the fire, to one Peterson, in violation of the second provision quoted. No change of possession was proven. The transaction relied upon as a conveyance consisted of a deed to the property, absolute in form, but in effect a mortgage, to secure the payment of $500. The deed did not pass the title. It simply created a lien on Christofferson's title and interest in the property to secure the debt. Barry v. Insurance Co., 110 N. Y. 1, 17 N. E. 405; Thompson v. Cheesman, supra. The defendant urges that

a change of interest was effected by the mortgage. Doubtless there is a conflict of authority as to the rule, but we are disposed to hold that such language, in a policy like this one, means a transfer of interest; that it does not mean an incumbrance, merely. The title and interest of the mortgagor remain in him, subject to the incumbrance. Barry v. Insurance Co., supra; Judge v. Insurance Co., 132 Mass. 521; Insurance Co. v. Spankneble, 52 III. 53; Richards, Ins. § 147. In the case of Barry v. Insurance Co., the policy contained a condition similar to this one; and the insured had executed two deeds, absolute in form, subsequent to the insurance, to secure a debt. The court said: "It follows from these authorities that the legal position of Mrs. Sleight, as the owner of the property, was not changed or affected by the deeds referred to, and that such instruments did not bring the transaction within either the letter or the spirit of the contract. The interest of Mrs. Sleight in the property remained the same after as before the delivery. It is true that, through a course of legal proceedings, the title to the property might finally be acquired by some one, if the debt was not paid; but this would be equally true if Mrs. Sleight had given to Moloughney her note of hand for the debt, and it had been followed by judgment, and a sale of the land under execution." Our conclusion is that this suit was properly brought by the plaintiff; that the deed of Christofferson, though absolute in form, was in effect a mortgage, and did not change, or transfer to Peterson, his interest in, or his title to, the property, or violate the condition or prohibition relied