Council Bluffs Savings Bank v. Smith

• Decision Date: 05 October 1899
• Docket Number: 8,974
• Citation: 80 N.W. 270,59 Neb. 90
• Parties: COUNCIL BLUFFS SAVINGS BANK, APPELLEE, v. LIZZIE M. SMITH ET AL. APPELLANTS
• Court: Nebraska Supreme Court

80 N.W. 270

59 Neb. 90

COUNCIL BLUFFS SAVINGS BANK, APPELLEE, v. LIZZIE M. SMITH ET AL. APPELLANTS

No. 8,974

Supreme Court of Nebraska

October 5, 1899

APPEAL from the district court of Madison county. Heard below before ROBINSON, J. Affirmed.

AFFIRMED.

W. E Reed, for appellants.

S. O Campbell, James Nichols and Powers & Hays, contra.

OPINION

SULLIVAN, J.

This is an appeal from a judgment of the district court foreclosing two real estate mortgages. One of the appellants is the wife of J. M. Smith, and the other is the wife of Albert V. Smith. J. M. and Albert V. were engaged in mercantile business in the city of Madison under the firm name of Smith Bros. They became indebted in the sum of $ 1,646.40 to the firm of Groneweg & Schoentgen, of Council Bluffs, Iowa; and on February 12, 1895, being requested to pay or secure the claim, promised, if their wives would join them, to execute mortgages on their respective homesteads. Thereupon negotiable notes representing the indebtedness were signed by the Smiths and two mortgages to secure the same were made out. Each mortgage covered the family homestead of one of the parties. The instruments were handed to S. O. Campbell, a notary public, who called next day on the appellants to secure their signatures and acknowledgments. It is conceded that appellants signed the mortgages when presented to them by the notary, but it is denied that there was any formal acknowledgment of either instrument. The evidence is somewhat conflicting, but the trial court was justified in finding, and we presume did find, that each of the appellants executed the mortgage on her homestead voluntarily, with knowledge of Campbell's official character, understanding the purpose for which he was present, and realizing fully the probable consequence of her act. That the plaintiff, the Council Bluffs Savings Bank, purchased the notes in good faith, before maturity, and became the assignee and owner of the mortgages was expressly admitted on the trial. It is claimed, and is doubtless true, that the appellants yielded reluctant consent to the giving of the mortgages; and it is possible that one of them was induced to consent because she believed her husband's statement that the creditors would take the property any way. But however that may be, the fact remains that in the end the execution of each of the mortgages was a deliberate and voluntary act, the performance of which is authenticated in the manner required by law. About this there is no dispute. The action is not defended on the theory that the mortgages were made and delivered under circumstances that would render them ineffective regardless of the homestead character of the mortgaged property.

The contention of appellants, as we understand it, is that there was in fact no conventional acknowledgment of the mortgages (no assent in legal form to the validity of the instruments) and that they are, therefore, void under the provisions of section 4, chapter 36, Compiled Statutes, 1897, which declares: "The homestead of a married person can not be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife." It must, we think, be conceded that the evidence, if competent, is sufficient to show that neither of the appellants declared in terms to the notary that the execution of the mortgage was her voluntary act and deed. The circumstances seemed to indicate that the formality was altogether superfluous and might with propriety be waived. The conduct of the parties, and what they said at the time they executed the instruments, so clearly denoted their purpose that it naturally appeared to them and to the notary that a formal characterization of their acts was unnecessary. There is no pretense that the notary acted in bad faith, or that there was any artifice in his failure to observe the customary practice in taking acknowledgments. Undoubtedly all parties...