Bailey, Wood & Co. v. Landingham
| Decision Date | 12 June 1880 |
| Citation | 6 N.W. 76,53 Iowa 722 |
| Parties | BAILEY, WOOD & CO. v. LANDINGHAM ET UX |
| Court | Iowa Supreme Court |
Appeal from Harrison District Court.
ACTION to foreclose a mortgage executed by the defendant Tilman Landingham, and purporting to be executed by his wife, the defendant Lydia Landingham. The mortgage covers two forty acre tracts, one of which constitutes the defendants' homestead. The defense pertains only to the forty acres which constitutes the homestead, and is based upon the alleged ground that Mrs. Landingham never signed or acknowledged the mortgage. There was a decree for the defendants in respect to the homestead. The plaintiffs appeal.
REVERSED.
Barnhart & Cadwell, for appellants.
L. R Bolter, for appellees.
Unless Mrs. Landingham joined in the mortgage it is void so far as the homestead forty is concerned. Code, § 1990. Upon the question as to whether she joined or not our minds are not entirely free from doubt. The evidence is very conflicting. Mrs. Landingham is unable to write. The mortgage does not purport to bear her name as subscribed by herself. On the other hand it purports to be executed upon her part by the making of her mark. The undisputed evidence shows that her name was written by one Henrietta Poe, by the direction of the mortgagee, one George Poe. This was done in the presence of Mrs. Landingham and her family, but it does not appear that she either authorized it or forbade it. It does appear however, that she refused two or three different times to join in the mortgage for the reason that it covered her homestead and she was unwilling to incumber it. She was urged to join, both by her husband and the mortgagee. The testimony of the mortgagee is that she finally consented to join, and held the pen or touched it while a cross was made as for her mark; but she in her testimony denies it, and she is corroborated by three or four members of her family, or relatives, who happened to be present. If this constituted all the evidence in regard to the execution of the mortgage we should have to say that it does not appear that she was a party to its execution. If she became a party it must be for the reason that she must be deemed to have adopted the act of the person signing her name. Whether she did adopt the act we will proceed to consider. The appellants insist that she acknowledged the mortgage.
A few days after the signing of the mortgage the mortgagee went to the defendants' house with a justice of the peace, one Burkholder, for the purpose of taking the acknowledgment of both the defendants. The defendant Tilman Landingham acknowledged the mortgage, but whether Mrs. Landingham did the evidence is conflicting. As tending to show that she did we have the certificate and testimony of the justice, and the testimony of the mortgagee. They are contradicted by Mrs. Landingham and three or four members of the family, or relatives. So far as the number of witnesses is concerned there seems to be a majority in favor of the defendants. Whether we ought to conclude that there is a preponderance of evidence in their favor depends upon how much weight should be given to the certificate of the officer, and his direct and positive testimony upon the subject. In our opinion...
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