Chosen Friends Home Loan and Savings League v. Otterson

• Decision Date: 27 September 1897
• Citation: 7 Wyo. 89,50 P. 194
• Parties: CHOSEN FRIENDS HOME LOAN AND SAVINGS LEAGUE v. OTTERSON ET AL
• Court: Wyoming Supreme Court

50 P. 194

7 Wyo. 89

CHOSEN FRIENDS HOME LOAN AND SAVINGS LEAGUE v. OTTERSON ET AL

Supreme Court of Wyoming

September 27, 1897

Commenced in District Court, Jan. 23, 1895.

ERROR to the District Court for Albany County, HON. J. H. HAYFORD Judge.

This was an action brought upon a bond and mortgage against Herman Otterson, Mary Otterson, his wife, and the Laramie Co-operative Association, as defendants. The mortgage was signed by Herman Otterson and Mary Otterson. The latter filed a separate answer, setting forth that when the mortgage was executed she could not read or write the English language and understood it very imperfectly; that she did not understand the nature of the instrument or its effect, and that the same was in no manner explained to her, all of which the plaintiff well knew; and that she did not then know that she had any rights whatever in the property. The Laramie Co-operative Association also held a mortgage upon the same property.

A jury was called to try the case, and returned answers to questions specially submitted to them by the court, and also a verdict in favor of Mary Otterson. The court adjudged the mortgage to be null and void, and decreed its cancellation. In its judgment the court recited the fact that it appeared from the evidence and from the verdict that the real estate was a homestead and that Mary Otterson, when she executed the mortgage, was not fully apprised of her homestead right therein by the officer taking her acknowledgment, and that said officer did not, separate and apart from her husband explain to her the nature of her homestead right and the effect of signing the said mortgage, "all of which the plaintiff then and there well knew." The plaintiff prosecuted error.

Affirmed.

W. H. Fishback, for plaintiff in error, contended that the evidence disproved the allegations of Mary Otterson; that it was error to impanel a jury to try the case for the reason that it was an equitable one; and that it was error to submit special questions to the jury.

M. C. Jahren and C. P. Arnold, for defendants in error, contended that the evidence was not properly before the court; and that as it is not urged that the judgment is not supported by the pleadings, there is no error to be considered, and cited Wheaton v. Rampacker, 3 Wyo. 441; Roy v. U. M. Co., id., 417; France v. First Nat. Bank, id., 187; Perkins v. Hoyt, id., 56; 56 N.W. 381; 54 id., 858.

CORN, JUSTICE. CONAWAY, C. J. and POTTER J., concur.

OPINION

CORN, JUSTICE.

This was an action brought to foreclose a mortgage. The defendants, Herman and Mary Otterson, set up by way of defense that the execution of the mortgage was procured by fraud, and that the mortgaged property was the homestead of the defendants Otterson; that the defendant Mary Otterson, who was the wife of Herman Otterson, did not have explained to her the nature and effect of the instrument, or her right of homestead, and that, not being able to read or understand English, she had no knowledge of her rights in the premises, and did not understand the nature or effect of the instrument she was signing. The court impaneled a jury to try the case, to which proceeding the plaintiff objected. The jury found for the defendants, except as to the indebtedness of Herman Otterson, and answered certain interrogatories submitted to it by the court favorably to the defendants. The plaintiff in error sets out certain evidence in its bill of exceptions, but there is no certificate of the court or judge that it is the evidence, or any part of the evidence, in the case.

The plaintiff assigns as error, first, the submission of the case to the jury, upon the ground that it is an equitable action and triable by the court. The right of the court in suits in equity to direct any issue to be tried by a jury is specially preserved by our statutes. (R. S., Sec. 2518.) The court seems simply to have exercised that right, and as no objection was made to any of the members of the jury as in any way disqualified or unfit to perform the service, it does not appear how the plaintiff was, or could have been, prejudiced.

It is further assigned as error that the court submitted to the jury certain interrogatories, and directed the jury to find specially as to the matters submitted. The reasons given whereby counsel for plaintiff in error has arrived at the conclusion that this was erroneous, are that the verdict would only be advisory and not binding upon the court, and that some of the questions submitted were matters of law and not of...