Knudsen v. Lythman

• Decision Date: 11 December 1920
• Citation: 33 Idaho 794,200 P. 130
• Parties: EMMA E. KNUDSEN, as Executrix of the Last Will and Testament of H. KNUDSEN, Deceased, Appellant, v. EDITH F. LYTHMAN, Formerly EDITH F. COOLIN, Respondent
• Court: Idaho Supreme Court

200 P. 130

33 Idaho 794

EMMA E. KNUDSEN, as Executrix of the Last Will and Testament of H. KNUDSEN, Deceased, Appellant, v. EDITH F. LYTHMAN, Formerly EDITH F. COOLIN, Respondent

Supreme Court of Idaho

December 11, 1920

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. John M. Flynn, Judge.

Action to foreclose a mortgage. Judgment decreeing foreclosure as to part of the property. Modified and affirmed.

Judgment affirmed. Costs awarded to appellant.

Cyrus Happy and G. H. Martin, for Appellant.

Ministerial duties may be performed by a notary public even though he be interested in the subject matter of the instrument to which he attaches his certificate. (Nixon v. Post, 13 Wash. 181, 43 P. 23; Keene etc. Sav. Bank v Lawrence, 32 Wash. 572, 73 P. 680; Spokane etc Lumber Co. v. Loy, 21 Wash. 501, 58 P. 672, 60 P. 1119; McLean v. Roller, 33 Wash. 166, 73 P. 1123.)

A married woman may be estopped by her conduct from disputing the validity of instruments where she has accepted and received the benefit thereof, even though they are not acknowledged or executed in accordance with the statutes. (Grice v. Woodworth, 10 Idaho 459, 109 Am. St. 214 80 P. 912, 69 L. R. A. 584; 10 R. C. L. 750.)

A married woman who deals or assumes to deal in respect of a matter concerning which her common-law disability has been removed is bound by an estoppel the same as any other person. (10 R. C. L. 738; Dobbin v. Cordiner, 41 Minn. 165, 16 Am. St. 683, 42 N.W. 870, 4 L. R. A. 333; Galbraith v. Lundsford, 87 Tenn. 89, 9 S.W. 365, 1 L. R. A. 522; H. W. Wright Lumber Co. v. McCord, 145 Wis. 93, Ann. Cas. 1912B, 92, 128 N.W. 873, 34 L. R. A., N. S., 762; Boise Butcher Co. v. Anixdale, 26 Idaho 483, 144 P. 337.)

F. A. McCall and Potts & Wernette, for Respondent.

Where community property used as a residence is to be conveyed or encumbered, the acknowledgment by the wife is a necessary part of the instrument conveying or encumbering the same, and unless validly acknowledged, the instrument is void as to the wife. (Wilson v. Wilson, 6 Idaho 597, 57 P. 708; 1 Cyc. 513, 514, 527, 523-533; Havemeyer v. Dahn, 48 Neb. 536, 58 Am. St. 706, 67 N.W. 489, 33 L. R. A. 332; Horbach v. Tyrrell, 48 Neb. 514, 67 N.W. 485, 489, 37 L. R. A. 434; West v. Krebaum, 88 Ill. 263; American Savings & Loan Assn. v. Burghardt, 19 Mont. 323, 61 Am. St. 507, 48 P. 391; Montana Nat. Bank v. Schmidt, 6 Mont. 609; 610, 13 P. 382; Silcock v. Baker, 25 Tex. Civ. 508, 61 S.W. 939; First Nat. Bank etc. v. Citizens' State Bank, 11 Wyo. 32, 100 Am. St. 925, 70 P. 726; Hayes v. Southern Home Building etc. Assn., 124 Ala. 663, 82 Am. St. 216, 26 So. 527.)

Every contract in the nature of a deed, mortgage or encumbrance affecting real property is subject exclusively to the laws of the state or government within whose jurisdiction the real property is situated. (Hannah v. Vensel, 19 Idaho 796, 116 P. 115.)

An acknowledgment of a mortgage cannot be taken by the mortgagee thereof, and if so taken, is void. (1 Cyc. 553, 554; Lee v. Murphy, 119 Cal. 364, 51 P. 549, 955; First Nat. Bank, etc. v. Citizens' State Bank, 11 Wyo. 32, 100 Am. St. 925, 70 P. 726; West v. Krebaum, 88 Ill. 263; Leftwich v. Richmond, 100 Va. 164, 40 S.E. 651; Hubble v. Wright, 23 Ind. 322; Wilson v. Traer, 20 Iowa 231; Groesbeck v. Seeley, 13 Mich. 329; Brown v. Moore, 38 Tex. 645; Bowden v. Parrish, 86 Va. 67, 19 Am. St. 873, 9 S.E. 616; Beaman v. Whitney, 20 Me. 413; Holden v. Brimage, 72 Miss. 228, 18 So. 383; Dail v. Moore, 51 Mo. 589; Stevens v. Hampton, 46 Mo. 404; Tavenner v. Barrett, 21 W.Va. 656; Morgan v. Glendy, 92 Va. 86, 22 S.E. 854; Rothschild v. Daugher, 85 Tex. 332, 34 Am. St. 811, 20 S.W. 142, 16 L. R. A. 719; Black v. Gregg, 58 Mo. 565; Barrett v. Tracewell, 21 W.Va. 656.)

BUDGE, J. Morgan, C. J., and Rice, J., concur.

OPINION

BUDGE, J.

This is an action to foreclose a mortgage on certain lands in Bonner county. The mortgage was executed April 9, 1907, by David Coolin, now deceased, and Edith F. Coolin, then his wife. One P. C. Shine, the mortgagee designated in the mortgage, took the purported acknowledgments of the mortgagors. Shine assigned the mortgage to one William Vane, April 14, 1909, and Vane in turn assigned the mortgage to H. Knudsen. Knudsen instituted the foreclosure proceeding and later died, and Emma E. Knudsen, his executrix, was substituted as plaintiff. After the cause was at issue, it was tried by the court. Findings of fact and conclusions of law were filed, and judgment entered decreeing foreclosure against an undivided one-seventh interest in the property, which was found by the court to have been the separate property of David Coolin, deceased, having descended to him as his share of his deceased mother's estate. The decree denied foreclosure as to an undivided five-sevenths of the property, upon the ground that it was community property which was occupied by the mortgagors as a residence at the time the mortgage was given, and that the mortgage as to the community interest was void because not lawfully acknowledged, and denied foreclosure as to the remaining undivided one-seventh of the property upon the ground that it was the separate property of Edith F. Coolin, and that the mortgage as to it was void for the same reason.

This appeal is from that portion of the judgment only which denied the validity of the mortgage as to the undivided six-sevenths interest in the property. The finding of the court as to this undivided six-sevenths interest in the property is supported by the evidence.

As to the one-seventh interest which the court found to be the separate property of Edith F. Coolin, the only point sought to be made by appellant is that the evidence shows that it was the separate property of David Coolin, but this finding that it was the separate property of the wife is supported by the evidence. However, as appellant is contending that this one-seventh interest in the property is subject to the mortgage, it becomes necessary to determine whether the separate property of a married woman, under the statutes in existence at the time this mortgage was given can be bound by a mortgage signed but not acknowledged by her. At the time this mortgage was given the law in force is found in sec. 2 of an act passed by the legislature in 1903, Sess. Laws 1903, page 346, and is now C. S., sec. 4657. This section provides:

"Sec. 4657. During the continuance of the marriage the wife has the management, control and absolute power of disposition of her separate property, and may bargain, sell and convey her real and personal property, and may enter into any contract with reference to the same, in the same manner, and to the same extent, and with like effect, as a married man may in relation to his real and personal property: Provided, That the husband shall be bound by such contracts to no greater extent or effect than his wife under similar circumstances would be bound by his contracts."

Respondent's contention is that Rev. Statutes, sec. 2922, which was not expressly repealed until 1913, and which provided that "Sec. 2922. No estate in the real property of a married woman passes by any grant or conveyance purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her in the manner prescribed in Chapter 3 of this Title, and her husband, if a resident of the State, joins with her in the execution of such grant or conveyance," required this mortgage to be acknowledged by the wife in order to give it any validity, but we are of the opinion that the provisions of the section of the 1913 law above quoted (now C. S., sec. 4657), authorizing the wife to bargain, sell and convey her real and personal property, and to enter into any contract with reference to it, in the same manner and to the same extent and with like effect as a married man may in relation to his real and personal property, operated to repeal by implication Rev. Statutes, sec. 2922, and that the mortgage of the wife's separate property, signed by her,...