OPINION
FISK, J.
This is
an appeal from the district court of Eddy county, and a
review of the entire case is requested in this court. The
facts are not in dispute, and, as stated in appellant's
brief, are as follows:
"On
the 18th day of January, 1904, George W. Justice, then the
husband of plaintiff, received his final receiver's
receipt of the southeast quarter (S. E. 1/4) of section ten
(10), township one hundred forty-eight (148) north, range
sixty-three (63) west, in the county of Eddy and state of
North Dakota, having made his final proof under the homestead
laws of the United States, and obtained his
patent December 31, 1904. On the 25th day of January, 1904,
Alice M. Dibble, of Wyoming county, New York, loaned to
George W. Justice $ 800 payable on the 1st day of November,
1909, and to secure the payment of this loan he executed and
delivered to Alice M. Dibble a mortgage on these premises,
which mortgage was dated on the 18th day of January, 1904,
acknowledged on the 25th day of January, 1904, and recorded
in the office of the register of deeds of Eddy county, North
Dakota, on the 10th day of February, 1904. This mortgage
purports to be executed by George W. Justice and Louisa
Justice, his wife, the plaintiff in this action, but in fact
was not signed by her. Her signature to the mortgage is a
forgery. She was, at the time it was executed, in the state
of Washington. The trial court found that George W. Justice,
at the delivery of this mortgage to Alice M. Dibble, falsely
represented the same to be the mortgage of himself and wife.
This mortgage was, on the 20th day of October, 1905, duly
assigned to William T. Souder, of Hennepin county, Minnesota,
the appellant in this action. This assignment was recorded in
the office of the register of deeds of Eddy county, North
Dakota, on the 27th day of October, 1905. The mortgage was
duly foreclosed and the mortgaged premises sold by the
sheriff of Eddy county to appellant, for the sum of $ 959.09,
on the 30th day of December, 1905, and sheriff's
certificate of foreclosure sale issued to him, which was
recorded in the office of the register of deeds of Eddy
county, on the same day. No redemption having been made from
this mortgage foreclosure sale, the sheriff of Eddy county,
on the 31st day of December, 1906, executed a sheriff's
deed of the premises in question to appellant, which was
recorded in the office of the register of deeds of Eddy
county, on the 31st day of January, 1907. Louisa Justice left
her husband and the premises in question in September, 1903,
and went to the state of Washington, where she has ever since
resided, and has never since returned to her husband or to
the state of North Dakota. She took her little girl with her
without the consent of her husband. In January, 1904, she was
living with a man by the name of Matthews apparently as his
wife, and was known to her neighbors as Mrs. Matthews. On the
20th day of April, 1905, she obtained a divorce from her
husband, George W. Justice, in the superior court of Spokane
county, state of Washington, and also a judgment for alimony,
suit money, and attorney's fees. After plaintiff left him
in September, 1903, Mr. Justice, with one of his five
children, lived upon these premises until
December, 1904, when he left and abandoned them as his
homestead, and has never since returned to or lived upon
these premises. In the month of October, 1906, plaintiff
commenced an action against George W. Justice in the district
court of Eddy county, North Dakota, upon the judgment for
alimony, rendered in the superior court of Spokane county,
Washington, on the 20th day of April, 1905, attaching the
premises in question and obtained judgment against him for
the sum of $ 903.74, on the 22d day of December, 1906. On the
29th day of December, 1906, this action was commenced to have
the mortgage, the assignment, the foreclosure proceedings,
and the sheriff's deed set aside and canceled of record,
and to have it decreed that appellant has no interest in, or
incumbrance upon, the premises in question. Appellant, in his
answer, alleged the giving of the mortgage, assignment to
him, the foreclosure proceedings, and the execution and
delivery of the sheriff's deed; that plaintiff had
deserted her husband, removed from and abandoned the premises
in question prior to the giving of the mortgage, and that her
husband had left and abandoned the premises as his homestead
in January, 1904; and that the cause of action alleged in the
complaint, being founded upon a claim of homestead right in
property conveyed and incumbered, was barred by the statute
of limitations. This action was tried at the May, 1907 term
of the district court of Eddy county by the court, and
resulted in a judgment against appellant substantially as
demanded in the complaint, which judgment was entered on the
16th day of July, 1907. And this appeal is from this
judgment."
In the
light of these facts we are required to determine the legal
rights of the parties. It is perfectly apparent that the
equities strongly preponderate in appellant's favor, and
that respondent ought not to prevail unless the strict legal
rules inevitably demand such a result. It is important in
considering the case to keep in mind the fact that plaintiff
is not here in the capacity of a homestead claimant seeking
to assert a homestead right. On the contrary, she is here
asserting that the real property in question long since
ceased by abandonment to be impressed with the homestead
character. Her sole claim of right to her attachment lien on
such property and for the satisfaction of her judgment out of
the same is based on the theory that the said land has ceased
to be the homestead, and that her former husband and judgment
debtor's interest in said property is still intact and
subject to the payment of his debts,
notwithstanding appellant's mortgage and sheriff's
deed under foreclosure thereof; it being respondent's
contention that such mortgage and the foreclosure proceedings
thereunder are nullities by reason of the fact that at the
date such mortgage was executed the property was the
homestead of George W. Justice, the mortgagor, and that
respondent, his then wife, did not join in the execution of
such mortgage. Respondent therefore is here merely in the
capacity of an attaching creditor of George W. Justice,
seeking to subject his interest, if any, in such property to
the payment of her demand. Hence, in so far as
appellant's rights under the mortgage are concerned,
respondent stands in no more advantageous position than her
former husband. To the extent of his interest, if any, in
such property at the date of her attachment, she is entitled
to recover in this action and not otherwise. If we are
correct in the above conclusions, and we think...
