Mandan Mercantile Company, a Corp. v. Sexton
| Citation | 151 N.W. 780,29 N.D. 602 |
| Decision Date | 25 February 1915 |
| Court | United States State Supreme Court of North Dakota |
From a judgment of foreclosure ordered by the District Court of Stark County, Leighton, Special Judge, defendants appeal.
Modified and judgment, against defendants for recovery of money only directed; mortgage ordered canceled and foreclosure thereunder set aside and denied; no costs allowed either party on appeal.
Judgment reversed and decree of foreclosure set aside, and the purported mortgage void; judgment entered in plaintiff's favor and against the defendants Patrick Sexton and Frank Windmueller; no costs allowed to either party on this appeal.
Casey & Burgeson, for appellant.
Land purchased with a specific intention of making it the homestead, and in pursuance of such intention the purchaser makes improvements thereon and preparation for occupancy, may be claimed as exempt even before actual residence commences. 21 Cyc. 475; Scofield v. Hopkins, 61 Wis. 370, 21 N.W. 259; Davis v. Kelly, 62 Neb. 642, 87 N.W. 347; Woolcut v. Lerdell, 78 Iowa 668, 43 N.W. 609.
A mortgage of the homestead that is not signed by husband and wife is void. Rev. Codes 1905, § 5082.
The husband cannot, by recitals in the mortgage, waive his wife's homestead interest. Dieter v. Fraine, 20 N.D. 484, 128 N.W. 684.
W. F Burnett, for respondent.
It does not follow that a bare intention to occupy property at some future time will, of itself, suffice to impress the property with the character of a homestead, much less where an unreasonable time intervenes during which tenants are in possession and claimant and his family live upon other land. Davis v. Kelly, 62 Neb. 642, 87 N.W. 347; Evans v. Calman, 92 Mich. 427, 31 Am. St. Rep. 606, 52 N.W. 787; Ingels v. Ingels, 50 Kan. 755, 32 P. 387.
The plaintiff did not move into the property when completed, but rented the premises to a tenant, and resided elsewhere. Woolcut v. Lerdell, 78 Iowa 668, 43 N.W. 609.
This property was never occupied or claimed as a homestead until after the giving of the mortgage, and not then until same had been defaulted. Brokken v. Baumann, 10 N.D. 453, 88 N.W. 84.
Residence of some kind is a necessary prerequisite to obtain homestead rights in land. Edmonson v. White, 8 N.D. 72, 76 N.W. 986; Blatchley v. Dakota Land & Cattle Co. 26 N.D. 532, 145 N.W. 95.
The question for decision is a mixed one of law and fact. The premises was mortgaged by the husband without the wife joining therein. If the property was the family homestead at the time, the mortgage is concededly void. If not it is valid.
The husband purchased the 2 acre tract in 1909. Plaintiff and wife owned no residence or other real property, though they have lived for many years in Dickinson. Plaintiff cropped the tract to oats and potatoes in 1909, 1910, and 1911. In 1910 they fenced it. Both testify they "bought it to make a home of it." A portion of the purchase price was paid by the wife. Plaintiff works as a stationary fireman for a livelihood. In 1911 Sexton built a six-room house, a stable, and chicken house upon the tract, procuring material of plaintiff. The house was begun the last week in July and completed about August 29th, the date of the mortgage. A small part only of the mortgage debt has been paid. This mortgage was given to secure a portion of the purchase price of building materials used in its erection, and was for the aggregate sum at the time of the rendition of the judgment appealed from, inclusive of interest, $ 567, remaining unpaid. The husband testifies that at the time of the giving of the mortgage he was having trouble with his wife about where they should live, and that she had refused to go out to this place to live; that he had consulted a number of people as to whether or not he could force his wife to go out there and live; that the husband came to the office of Mr. Burnett, attorney for respondent, some little time before the giving of the mortgage to see him about making a loan on this tract, and told him at that time that his wife would not go out there, and that they had never lived on these lots at all. The mortgage contained the covenant that the husband, "first party, hereby consvenants that the said above-described lot does not now and never has constituted any part of his homestead." The testimony of Crawford, managing agent for plaintiff, is that "Sexton reported to the mercantile company that his wife at this time had refused or would refuse to sign this mortgage, and he and I then went over to Burnett's office to talk it over and see if the papers would be legal, so that we could go ahead with the house to build it and turn it over; and in Burnett's office Sexton asked if the loan could be executed and go through with his signature only, and Burnett asked Sexton if he claimed that as his homestead and if he had never lived there, to which he replied that he had not lived there, as there was no building there he could not claim these premises as his homestead, and that he did not claim it as a homestead, and that he would agree to make that statement in this mortgage 'that it was not, and had not been, his homestead,' which statement was put in the mortgage at Sexton's request." The house was practically completed at the time of the execution and delivery of the mortgage. Within a few days Frank Windmueller moved his furniture and family, his wife and four children, into the house, and continued to reside there from the last of August, 1911, until about the 28th of October, 1912. He had advanced Sexton $ 200 to take up a mortgage that was on the land before the dwelling house was built and in return for which Sexton gave him a lease of three of the rooms of the house for one year, into which he moved his family immediately on the completion of the building. In October or November, 1911, plaintiff also moved forty or fifty chickens and his cow into buildings on the tract, and also then moved his household furniture, including beds and bedding, stoves, tables, chairs, china closets, and the like into the remaining three rooms not rented to Windmueller, preparatory to and with the intention of residing therein, but that his wife "refused to live in there on the ground that it was too crowded, two families living in there." He left his household furniture there, however, and attempted to get Windmueller to vacate, commencing legal proceedings against him for that purpose, but failed to get him out. The chickens and the cow remained on the place until February or March, when they were removed. After Windmueller vacated, defendants moved in on December 6, 1912. Sexton defends, claiming the property to have been homestead, and that the mortgage has at all times been void. The wife intervened with the same defense. The trial court held the mortgage was a valid lien and ordered foreclosure, from which they appeal. As Windmueller also signed the notes secured by the mortgage, judgment was ordered against him also. The question is whether, under these facts, these premises constituted the homestead of the defendants.
Residence was not actually established thereon by the defendants until a year and four months after the mortgage was given and that length of time after the dwelling had been completed although the reason for such delay is clearly apparent, more from inconvenience than from necessity. It was caused by Windmueller's occupancy. He had advanced $ 200 for a year's rental of the premises, and rightfully refused to vacate until he had received the consideration for money paid. Defendants had procured this advancement of $ 200 to pay off a mortgage on the premises, evidently preparatory to and to enable them to build the dwelling. As bearing upon whether the land had been impressed with homestead characteristics prior to the time of the execution and delivery of the mortgage in suit the facts determine the issue in favor of the defendants. Both testify they bought the place to make a home of it. While words without acts signifying an intent to make a home amount to nothing in themselves, yet when the succession of acts, coupled with such expression of intent, harmonize therewith and result in the establishment of a home thereon, all will be considered together, and if the home is built and residence therein begun within a reasonable time, under all the circumstances, the means of the parties considered, and all are consistent with a good-faith intention to establish the home as such, instead of to merely defraud creditors or intervening claimants, the homestead exemption should be allowed. The facts disclose a purchase with a reasonable inference of present intent to at some time occupy the premises; their subsequent improvement for two seasons prior to building thereon is entirely consistent with and further indicative of an existing intent to at some time reside there. This is followed by the most eloquent fact of all, to wit, the erection of a substantial dwelling house with other buildings thereon, and this dwelling was just completed ready for occupancy when the mortgage was given for a part of the cost of the materials used in its construction. At this point plaintiff was confronted with the fact of the refusal of the wife to mortgage these premises having all characteristics of a home. It consulted an attorney to ascertain the legal effect of the wife's refusal to join in the mortgage, and as it was charged with presumed knowledge of the law it must be assumed to have known that the mortgage with but the husband's signature...
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