France v. Bell

• Decision Date: 15 June 1897
• Citation: 71 N.W. 984,52 Neb. 57
• Parties: FRANCE v. BELL ET AL.
• Court: Nebraska Supreme Court

52 Neb. 57

71 N.W. 984

FRANCE

v.BELL ET AL.

Supreme Court of Nebraska.

June 15, 1897.

Syllabus by the Court.

1. In all actions in equity either party may appeal from the judgment or decree or final order made by the district court to the supreme court. Code Civ. Proc. § 675.

2. In an action to foreclose a mortgage it was determined and adjudged that the mortgage was void, and the mortgagee entitled to no relief thereon, and the action was continued for hearing of the controversy in regard to the indebtedness, the payment of which the mortgage purported to secure. Held to be a final order in relation to the mortgage, within the meaning of the Code, and appealable.

3. The mere fact that a grantor, in a conveyance of a family homestead, is described therein as a single person, will not estop the grantor from asserting the homestead character of the premises included in the conveyance, or the right of homestead therein, as against a grantee or mortgagee.

4. The homestead of married persons may be property the title to which is in either the husband or wife, and, to be valid, a mortgage thereof must be signed and acknowledged by both the husband and wife. The fact that they are not living together at the time of the execution of the instrument does not affect the rule or rob it of any of its force.

Appeal from district court, York county; Bates, Judge.

Action by George B. France against John Bell and another. From a judgment for defendants, plaintiff appeals. Affirmed.Harlan & Taylor and Geo. B. France, for appellant.

F. C. Power, for appellees.

HARRISON, J.

This action was instituted in the district court of York county to foreclose a mortgage on lot numbered 2 in block numbered 25 in the village of York, York county, Neb., which had been given to secure to appellant the payment of a promissory note in the principal sum of $100. In the answer it was stated: “Comes now the defendant, Amanda M. Bell, and, for answer to the petition filed against her in said cause, says that she has never seen the note set forth and described in the plaintiff's petition to her knowledge; that the original note, if such note exists, is in the possession of the plaintiff, and this defendant has no access thereto, and therefore cannot say whether her genuine signature appears upon said note or not; but she alleged the facts to be that if her signature and name were signed to a note for $100, as set forth in plaintiff's petition, her signature to the same was obtained fraudulently, and without her knowledge and consent. (2) The defendant, further answering, says that on or about the ______ day of February, 1888, she was, and still is, a married woman and the head of a family, and was occupying and residing upon the premises described in plaintiff's petition, and ever since has resided upon and occupied the same as her homestead, under the laws of the state of Nebraska; and the said premises, on the ninth day of February, 1888, were, and ever since have been, and still are, the homestead of this answering defendant; and that said premises at that time were, and still are, and ever have been, of less value than $2,000, and of about the value of $500, and no more, and consist of one lot within the corporate limits of the village of New York, in York county, Nebraska, and now a part of the city of York, in said county, with a small dwelling house thereon, in which this answering defendant then resided, and still resides, as hereinbefore alleged; and said mortgage was not signed, executed, or acknowledged by the husband of this defendant.” It was further pleaded in the answer that, on or about the date of the mortgage in suit, the son of appellee was held to answer to a criminal charge in the district court of York county, and desired to give a recognizance for his appearance before said court on a certain day, and it was represented to appellee by the attorneys (of whom appellant was one) who had been employed to defend her son that a note in the sum of $500 and a mortgage on her real estate must be delivered to the parties, to secure them in signing the recognizance as sureties; that she agreed to, and did, comply with this demand; that, about the time of the execution of the note and mortgage, she was about sixty-five years old, her eyesight was poor, and she did not have her spectacles, and could not or did not read the papers then signed, but was told that it was a note in the sum of five hundred dollars, and the mortgage to secure the same, and nothing other, further, or different; that, if the $100 note was then signed and included in the mortgage, it was without her knowledge and consent, and fraudulently procured to be done; and that the case in which the recognizance was given had been disposed of and ended, and she had become entitled to have the mortgage in suit canceled and annulled, for which, as relief, she prayed. The reply, to the extent it referred in direct terms to the portion of the answer in which the mortgaged property was described as the home of the appellee, was as follows: “The defendant admits that the said Amanda Bell, at the time of the execution of said mortgage deed, and ever since said time, was and has been residing upon the premises described in the petition and in said mortgage deed, and that said premises at that time were and have been of less value than $2,000, and are of the value of $500 or $600; and that the same consists of one lot within the corporate limits of New York, and the same is now a part of the city of York, all in York county, Nebraska; and that the said lot has a small dwelling thereon.” There was also stated in the reply that the mortgage had been given to secure the parties in signing the bail bond of appellee's son; and, further, that the $100 note evidenced the amount of the fee which was to be paid the attorneys in defense of appellee's son; and that the same was included in the mortgage with the full knowledge and agreement of appellee. There was also a general denial of all matters alleged in the answer not expressly admitted.

There was a hearing, the following being a copy of the journal entry thereat: “This cause came on this day to be heard on the issues joined, and the evidence, and was submitted to the court, on consideration whereof the court finds that the mortgage deed described in the petition executed by the defendant Amanda M. Bell to the plaintiff, George B. France, is invalid, and ought to be canceled of record. It is therefore considered and adjudged and decreed that the mortgage dated February 9, 1888, conveying lot number 2 in lot number 25 in the village of New York, York county, Nebraska, executed by Amanda M. Bell to George B. France, and recorded in the office of the county clerk of York county on the 10th day of February, 1888, be, and the same hereby is, canceled of record, and the said mortgage deed is hereby declared null and void. To said finding and order of the court the plaintiff duly...