Harney v. Montgomery

• Decision Date: 19 March 1923
• Docket Number: 1035
• Parties: HARNEY, ADMR. v. MONTGOMERY, ET AL
• Court: Wyoming Supreme Court

213 P. 378

29 Wyo. 362

HARNEY, ADMR. v. MONTGOMERY, ET AL

No. 1035

Supreme Court of Wyoming

March 19, 1923

APPEAL from the District Court, Crook County; HON. JAMES H. BURGESS Judge.

Action by John Harney as plaintiff against Alvis Montgomery and others, for the cancellation of a mortgage lien upon lands. The plaintiff having died since the appeal, Hugh Harney, his administrator, was substituted as appellant. The material facts are stated in the opinion.

Modified and Affirmed.

Raymond LaFleiche & Kem, J. F. McGuckin and L. H. Simons, for appellant.

The issues in this cause are clearly stated by the pleadings appellant contended below that the lands involved were his homestead, and that his right to a homestead therein had not been waived; second, that the mortgage was not entitled to record because of a defective acknowledgment taken before a disqualified notary; it was alleged and proven that appellant was over sixty years of age at the time the mortgage was given and was residing in the state; this conferred a homestead right (Laws 1909, Ch. 102; Sections 4755, 4756 C. S. 1910;) the amendment by Ch. 104, Laws 1915 could not effect this right. Franklin v. Coffee, 70 Amer. Dec. 292 cited by defendant is not in point. Occupancy was unnecessary, (21 Cyc. 471.) Powers v. Pense, (Wyo.) 123 P. 925, cited by respondent, involved a purchase money mortgage; the instrument did not contain a waiver of homestead right. A homestead right may exist in lands not contiguous (Mayho v. Cotton, 69 N.C. 289; Swandale v. Swandale, 25 S.C. 389; Nance v. Hill, 1 S.E. 897; Melton v. Andrew, 45 Ala. 454.) The homestead exemption depends upon the statutes or constitution in each state, and, unless occupancy is required, the right may be claimed in any property; the notary before whom the mortgage was acknowledged had an interest in the security and was disqualified; the instrument was not entitled to record; the mortgagees were charged with notice of this, and the foreclosure and sale were void. Foreclosure under a power is not permissible unless the instrument be duly recorded. This action is between the original parties to the mortgage; the mortgage was not witnessed (Conradt v. Lepper, 81 P. 307; Whalen v. Canal Co., 71 P. 1000; Boswell v. Bank, 92 P. 624;) the mortgage while enforceable in equity, was illegally executed (Frank v. Hicks, 35 P. 475;) it could not be foreclosed by advertisement (First National Bank v. State Bank 70 P. 726;) the acknowledgment was void (Association v. Mensch, 196 Ill. 554; 63 N.E. 1049; Kothe v. Krag-Reynolds Co. (Ind. App.) 50 N.E. 594; Horback v. Tyrrel, 48 Neb. 514; 67 N.W. 485-489; 37 L. R. A. 434; Withers v. Baird, 7 Watts. 227; 32 Am. Dec. 754; Browne v. Moore, 38 Tex. 648; Davis v. Beasley, 75 Va. 491; Grosbeck v. Seeley, 13 Mich. 329; Miles v. Kelly, 16 Tex. Civ. App. 147; 40 S.W. 599; 1 Devl. Deeds (2nd Ed.) 467; 1 Cyc. Law & Proc. 553 and cases cited; 1 Enc. Law (2nd Ed.) 493 and cases cited.) The evidence shows that Armstrong, the notary, concealed his interest in the security in order to get the instrument recorded; he also witnessed it which was unlawful (Amick v. Woolworth, 50 N.E. 437;) Malvin, whose name appears as a witness to the mortgage, did not see it executed as appears from the evidence. The foreclosure sale was void, and the sheriff's deed issued pursuant thereto is also void. The judgment should be reversed.

Thos. A. Nicholas and Chambers Kellar, for respondents.

Findings of the trial court based upon conflicting evidence will not be disturbed. (Wyman v. Quayle, 63 P. 988, (Wyo.) Collins v. Stanley, (Wyo.) 88 P. 630; Stanley Land Co. v. Beckstead, 192 P. 1056, (Wyo.); 2 R. C. L. Sec. 173, Page 204; 4 Corpus Juris, 843.) The appellant having presented but two propositions will be deemed to have abandoned all others. (2 R. C. L., Sec. 153, Page 178; Boswell v. Bliler, (Wyo.) 63 P. 350; Syndicate Co. v. Bradford, (Wyo.) 43 P. 79; Chicago B. & Q. Co. v. Lampman, 104 P. 533, (Wyo.). It is conceded that appellant was over sixty years of age and a resident of the state when the mortgage was executed; the case differs from one where the enforcement of a judgment is sought by execution or when an execution is levied upon exempt land; no claim of homestead was made by appellant before the foreclosure sale; appellant did not occupy the premises and it was impossible to know what land he claimed in the homestead; the exemption rule will not protect fraud. (Powers v. Pense, (Wyo.) 123 P. 925.) Appellant, in fact, resided on other lands on the date of the mortgage; he made no objections to the foreclosure; homestead means the home place (15 A. & E. Enc. 575; Wyo. Const. Article XIX, Section I.) The statute defines what it may consist of (4758 C. S. 1910;) there must be some occupancy or claim of homestead manifested (21 Cyc. 472-488; Note to Pryor v. Stone, 70 Am. Dec. 344; Keyes v. Bump, 9 A. 598; Jensen v. Griffin, 144 N.W. 119; Grosholz v. Newman, 21 Wall. 481; 22 L.Ed. 471; Davis v. Kelley, 14 Iowa 523; Davis v. Kelly, 87 N.W. 347; Hall v. Houston, 66 P. 358; Hyde v. Ishmael, 143 P. 1044; Lakas v. Archambault, 176 P. 180; Lauri v. Crouch, 139 P. 304; Franklin v. Coffee, 70 Am. Dec. 292; Edgerton v. Connelly, 44 P. 22; Cowan v. Burchfield, 120 F. 614; Lenora State Bank v. Peak, 44 P. 900.) The exemption applies as against creditors; there is a distinction in the rule as to voluntary contract (Lenora State Bank v. Peak, 44 P. 900; 21 Cyc. 512.) The homestead may be unencumbered (3662 C. S. 1910.) Fundamentally there must be a homestead established by the owner or occupant (Towne v. Rumsey, 5 Wyo. 11; Ulman v. Abbott, 67 P. 467.) The homestead right accorded a resident of the state over sixty years of age by Section 4756 C. S. 1910 contemplates a right acquired by claim on occupancy (36 Cyc. 1106;) it applies as against creditors but not to a voluntary alienation; a lease may be the basis of the right (Pryor v. Stone, 70 Am. Dec. 344.) Appellant occupied adjoining land under lease in which a homestead right might have been claimed (Franklin v. Coffee, 70 Am. Dec. 292; Johnson v. Martin, 16 S.W. 550; Bank v. Peak, 44 P. 900.) There is no such thing as the possession of two homesteads at the same time (Bank v. Peak, supra; Wapello County v. Brady, 92 N.W. 717; Mayho v. Cotton, 69 N.C. 289.) Cases cited by appellant involved exemption against execution; Armstrong's interest was contingent; he was not a partner with mortgagees, the trial court so found; the trial court found, however, that Armstrong was disqualified. But a mortgage is valid without a subscribing witness or acknowledgment (Boswell v. First National Bank (Wyo.) 93 P. 661; Frank v. Hicks, 4 Wyo. 502; 35 Pa. 1035; Conradt v. Lepper, (Wyo.) 81 P. 307; Whalon v. North Platte Co. (Wyo.) 71 P. 995; Cooper v. Hamilton, 97 Tenn. 285; 56 Am. St. Rep. 795; 19 R. C. L. 283, Sec. 55, Note 14;) the equitable mortgage theory applies to instruments where the defect appears on the face thereof (Frank v. Hicks, supra.) Where there is nothing on the face of the mortgage or certificate of acknowledgment to show the notary's interest, the instrument is properly recorded (Boswell v. First National Bank, (Wyo.) 93 P. 661; Powers v. Pense, 123 P. 925, (Wyo.); Kee v. Ewing, 87 P. 297; Norrow v. Cole, 42 A. 673; Ardmore Nat'l Bank v. Briggs Co., 94 P. 533; Cooper v. Hamilton, 97 Tenn. 385; 56 Am. St. Rep. 795; 1 C. J. 773, Sec. 55; 1 Cyc. 530; 1 R. C. L. 273.) Foreclosure under a power of sale is a matter of contract and irrevocable, and the power need not be recorded (Jones Mtges, Sec. 1784; and cases cited; Bergen v. Bennett, 2 Am. Dec. 281; Wilson v. Troup, 14 Am. Dec. 458.) The question is purely one of the legal status of the record (Clark v. Mitchell, 84 N.W. 327; Brown v. Comenew, 114 N.W. 728; Curtis v. Cutler, 76 F. 16; Hickey v. Richards, 20 N.W. 428; Bottineau v. Aetna Life Insurance Co., 16 N.W. 849; Backue v. Burke, 51 N.W. 284; Bank of Benson v. Hove, 47 N.W. 449.) Statutes providing foreclosure under a power are liberally construed; (Jones, Mtges. 2nd Ed. Vol. 2, Sec. 1764; McCardis v. Billings, 87 N.W. 1008; Hickey v. Richards, 20 N.W. 428.) Armstrong was entitled to act as a witness (Doe v. Turner, 7 Ohio 504; Welsh v. Lewis, 71 Ga. 387; 2 Jones, Real Prop. 1099; Webb, Record Titles, 127.) A sale under a power, is as effective to convey title as a sale under a decree of foreclosure (Fighiera v. Radis, 182 P. 418; Nichols v. Tingstad, 86 N.W. 694; Reilly v. Phillips, 57 N.W. 780; Felner's Admr's. v. Slingluff, 71 A. 978; The Bell Co. v. The First Nat. Bank, 156 U.S. 470; 39 L.Ed. 497;) even if it were not as effective as a sale under a decree, the mortgagor is required to act with promptness in attacking the validity of the sale, otherwise he is estopped (Shelby v. Bowden, 94 N.W. 416; Northwestern Mortgage Co. v. Bradley, 70 N.W. 648; Higbee v. Dasley, 109 N.W. 318.) Appellant's conduct was an affirmation and recognition of the validity of the sale; he is estopped from repudiating the transaction (16 Cyc. 791.) In any event the appellant must be limited to a claim of $ 1500.00 for exemption rights of the lessee; the Tri-State Oil Co. should be protected in its ten year lease.

J. T. McGuckin, L. M. Simons, Raymond, LaFleiche & Kem, in reply.

The mortgage was secured by false statements; the time for redemption was allowed to expire by false assertions by respondent, Armstrong; Armstrong's interest was not contingent; the acknowledgment taken by Armstrong was void; (Boswell v. Bank, supra.) the mortgage involved in Powers v. Pense was a purchase money mortgage; the facts were entirely different from the case at the bar; the foreclosure was void and sheriff's deed should be vacated.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

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