Engen v. Union State Bank of Harvard
| Citation | 223 N.W. 664,118 Neb. 105 |
| Decision Date | 21 February 1929 |
| Docket Number | 26236. [*] |
| Parties | KNUTE C. ENGEN, APPELLEE AND CROSS-APPELLEE, v. UNION STATE BANK OF HARVARD ET AL., APPELLEES AND CROSS-APPELLEES: VAN E. PETERSON, RECEIVER, ET AL., APPELLEES AND CROSS-APPELLANTS: FIRST TRUST COMPANY OF LINCOLN, APPELLANT AND CROSS-APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Hamilton county: LOVEL S HASTINGS, JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
The French words " fonds et biens," translated as " goods and effects," include realty, as they appear in the following terms of the existing treaty between the United States and Norway: " The subjects of the contracting parties in the respective states may freely dispose of their goods and effects, either by testament donation, or otherwise, in favor of such persons as they think proper; and their heirs, in whatever place they shall reside, shall receive the succession even ab intestato, either in person or by their attorney." Erickson v. Carlson, 95 Neb. 182, 145 N.W. 352, approved and followed.
Treaty rights of aliens must be enforced by state courts without regard to conflicting statutory provisions.
The provisions of the Homestead Act (Comp. St. 1922, §§ 2816-2832), operating as restraints on alienation, are, to that extent, repugnant to, and inconsistent with, the rights guaranteed by terms of this treaty (8 Stat. 64, art. 6), stipulating that " the subjects of the contracting parties in the respective states, may freely dispose of their goods and effects [" fonds et biens" ] either by testament, donation or otherwise, in favor of such persons as they think proper."
As to conveyances of real estate authorized by such treaty, even though consisting of the dwelling house in which the grantor resides and its appurtenances, and the land on which it is situated, the restraints on alienation imposed by such Homestead Act are to that extent inoperative.
Appeal from District Court, Hamilton County; L. S. Hastings, Judge.
Suit by Knute C. Engen against the Union State Bank of Harvard and others, impleaded with the First Trust Company of Lincoln, wherein the defendant Mari Tollefsen Todok filed a cross-petition. From the decree Van E. Peterson, receiver of the Union State Bank of Harvard, and others appeal, and plaintiffs and certain defendants cross-appeal. Reversed and remanded, with directions.
Hall, Cline & Williams, for appellant.
Hainer, Craft, Edgerton & Fraizer, H. G. Wellensiek, J. H. Grosvenor, Butler & James and Brown, Baxter, Van Dusen & Ryan, contra.
This is primarily a suit to cancel deeds made by Christian Knudson in his lifetime conveying to his two nieces, Anna S. Brown and Bertha M. Megrue and husbands, respectively, eighty-acre tracts in Hamilton county, Nebraska.
The pleadings embrace other issues, however, but the finding of the trial court was such as rendered the validity of the deeds, above referred to, the controlling question.
The undisputed facts in the record appear to be that Christian Knudson, a son of Norwegian subjects, was born in Norway, January 10, 1845, and married Mari Tollefsen Todok, also a subject of Norway, at a church wedding in that country; that thereafter they lived together in Norway until the spring of 1868. Knudson and his brother, Eric Engen, left their home in Norway, May 16, 1868, and arrived in Wisconsin, June 22, 1868. Knudson came to Nebraska in 1878. His wife, Mari Tollefsen Todok, and his child remained at their home in Norway. The wife never came to the United States and at all times has continued a resident and subject of Norway. There is no evidence in the record that the naturalization of Christian Knudson as a citizen of the United States was ever completed. The plaintiff in this action, Knute C. Engen, the son of Christian Knudson and Mari Tollefsen Todok, left the Norway home and came to Nebraska in 1893, when he was 23 years old. He then worked for his father about one year on the father's place after his arrival and then permanently left his father's residence. The mother of Knudson was born June 16, 1818, and his father was born February 3, 1819. His mother came to Nebraska in 1886 and the father in 1887 and joined Knudson who was then living on the 160 acres in controversy. Knudson took care of the old folks and supplied the provisions for them. Knudson's father died in this home January 31, 1900, being 81 years old; the mother died April 8, 1906, being 88 years old.
There is no evidence in the record that either the father or mother of Knudson was a naturalized citizen of the United States. On July 17, 1923, Christian Knudson in consideration of the care that his niece and her husband rendered to him, deeded the north half of the southwest quarter of section 35, township 9, range 7, Hamilton county, to Bertha M. Megrue and Leroy A. Megrue. On October 2, 1923, the Megrues deeded this land to the Union State Bank of Harvard for a consideration of $ 9,600, and the Union State Bank conveyed in turn to Theodore Griess, its president, who on September 22, 1924, borrowed from the First Trust Company of Lincoln $ 4,500, and executed a mortgage upon this land to secure the same to that organization. On July 17, 1923, Christian Knudson, in consideration of the care rendered by his niece and her husband also deeded the south half of the northwest quarter of section 35, township 9, range 7, Hamilton county, to Anna S. Brown and Robert E. Brown. On September 17, 1923, the Browns deeded the premises thus received to the Union State Bank of Harvard for a consideration of $ 8,000. This bank in turn deeded to Theodore Griess, who borrowed from the First Trust Company of Lincoln $ 5,000, and executed a mortgage to secure the same on September 22, 1924, to such trust company.
The district court by special findings determined, in addition to certain other facts, that Christian Knudson, sometimes known as Christian Engen, was at all times an alien and a subject of Norway, having never completed his naturalization in the United States, and that the defendant and cross-petitioner, Mari Tollefsen Todok, was his legal wife and was living in Norway at the time of his death; that Christian Knudson settled in Nebraska in 1878 and established a homestead which embraced the premises in controversy, and continued to reside upon said real estate as his homestead until his death, August 6, 1923; that the warranty deeds to the Megrues and the Browns referred to were each void and without force and effect for the sole reason that the lands purporting to be conveyed thereby were a part of the homestead of said Christian Knudson, and these deeds were not signed and acknowledged by his wife, the defendant, Mari Tollefsen Todok, and were therefore void. The court further determined that the conveyances made by the Megrues and Browns of the title thus received by them to the Union State Bank of Harvard were likewise null and void and of no force and effect for the sole reason that none of the grantors, due to the invalidity of the deeds as determined, had title to said real estate, and that the title thereof remained and continued to be vested in Christian Knudson, and that on August 6, 1923, when he died intestate leaving as his sole and only heirs at law his wife, the defendant, Mari Tollefsen Todok, and his son, the plaintiff, Knute C. Engen, the fee title to such real estate descended and vested in them, half and half, share and share alike; and the court further found expressly that there was no fraud, conspiracy, or undue influence exercised by the defendants, or their agents, on said Christian Knudson, as alleged in plaintiff's petition. The decree was entered accordingly. Van E. Peterson, receiver of the Union State Bank of Harvard, Nebraska State Bank of Harvard, and First Trust Company of Lincoln appeal.
A careful consideration of the evidence contained in the record inclines us to the belief, consistent with the findings of the trial court who heard the evidence and observed the witnesses who testified in person before him, that there was no fraud, conspiracy, or undue influence exercised by the...
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