Martin v. Yager

Decision Date02 June 1915
Citation153 N.W. 286,30 N.D. 577
PartiesMARTIN v. YAGER et al.
CourtNorth Dakota Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

The widow of a deceased entryman, who takes advantage of the provisions of sections 2291, 2301, Fed. Stat. Ann. (U. S. Comp. St. 1901, pp. 1389, 1406), and completes her husband's residence and obtains a patent from the government, but who, during the lifetime of her husband, joined with him in a mortgage on the land in question, in which she personally promised to pay the debt secured, and executed personal covenants of seisin and quiet possession, is estopped by such covenants from asserting her after-acquired title, in an action brought by her to determine adverse claims and to quiet title as against the purchaser under the foreclosure of said mortgage.

On Petition for Rehearing.

Claiming in the notice of foreclosure by publication more than is due on the mortgage will not affect the validity of the sale, unless it appears that it was done with a fraudulent purpose, or that it has resulted in actual injury to the mortgagor.

Appeal from District Court, Pierce County; Burr, Judge.

Action by Anna Martin, formerly Anna Volk, against Edward L. Yager and others. From judgment for plaintiff, the defendant named appeals. Reversed.

This is an action to quiet title and to determine adverse claims to real estate. Michael Volk filed on a quarter section of government land. Thereafter he and his wife (the plaintiff, Anna Martin, formerly Anna Volk) gave a mortgage on the land to secure certain notes signed by Martin Volk alone, and which represented his personal indebtedness alone. The mortgage, however, was signed and acknowledged by both husband and wife, and contained both a joint promise to pay the indebtedness which it secured and a joint covenant of quiet possession. Volk died before proving up or earning the right to a patent. Thereupon his wife, Anna Volk, completed the term of residence required, and proved up upon the land and received her patent under the provisions of sections 2291, 2301, Federal Stat. Ann. (U. S. Comp. St. 1901, pp. 1389, 1406), and section 32, Circular No. 10, of the Department of the Interior. A little over a year after such final proof by her, the mortgage was foreclosed by one George Dickey, to whom it had been assigned during the lifetime of the deceased entryman, and the premises were bid in by the said Dickey, and later the sheriff's certificate was assigned to the defendant and appellant, Edward Yager, and a sheriff's deed issued to him. Later this action was brought by Anna Martin, formerly Anna Volk, to determine adverse claims and to quiet title as against said mortgage, and a judgment was entered in her favor, from which the defendants have appealed and ask for a trial de novo.

Torger Sinness, of Minnewaukan, and Middaugh, Cuthbert, Smythe & Hunt, of Devils Lake, for appellant. H. B. Senn, of Rugby, for respondent.

BRUCE, J. (after stating the facts as above).

[1] There can be no doubt that, under the common-law rule, and in the absence of a married woman's act such as we have in North Dakota, the covenants of the wife would be merely deemed a waiver of her homestead interest, and that the wife would not be estopped from asserting her after-acquired title. This rule, however, is based upon the old common-law theory of the contractual incapacity of a married woman. Griner et ux. v. Butler, 61 Ind. 362, 366, 28 Am. Rep. 675;Blain v. Harrison, 11 Ill. 384;Knight v. Thayer, 125 Mass. 25. It can have no application in a state like North Dakota, where that incapacity has been entirely removed by the statute, and a married woman has the same contractual ability as a feme sole, or as her husband himself. Griner v. Butler, 61 Ind. 362, 366, 28 Am. Rep. 675;Guertin v. Mombleau, 144 Ill. 32, 33 N. E. 49;Knight v. Thayer, 125 Mass. 25;Zimmerman v. Robinson, 114 N. C. 39, 19 S. E. 102;Yerkes v. Hadley, 5 Dak. 324, 40 N. W. 340, 2 L. R. A. 363;Lessee of Hill v. West et al., 8 Ohio, 225, 31 Am. Dec. 442;Adam v. McClintock, 21 N. D. 483, 131 N. W. 394; section 6155, R. C. 1905, section 6731 (Compiled Laws 1913). The act of this state provides that:

“Either husband or wife may enter into any engagement or transaction with the other, or with another person respecting property, which the other might if unmarried. The wife after marriage has with respect to property, * * * the same liabilities as before marriage, and in all actions by or against her she shall sue and be sued in her own name.” Section 4411, Compiled Laws of 1913.

In the mortgage before us the wife not merely agreed to pay the debt (though she did not sign the notes), but she made express covenants of quiet enjoyment. The mortgage indeed can well be held to have been given in contemplation of just such a contingency as that before us. In it-

“the said Michael Volk and Anna Volk, his wife, further covenant and agree to and with the said party of the first part, his heirs, executors, administrators and assigns, to pay said sum of money above specified at the time and in the manner above mentioned.”

The mortgage in question further recites that both of said parties-

“are lawfully seized of the said premises and that they have good right to convey the same, that the same are free from all incumbrances; that the said party of the second part, his heirs and assigns shall quietly enjoy and possess the same and that the said parties of the first part will warrant and defend the title to the same against all lawful claims.”

We can see no reason why in a court of equity, at any rate, these covenants should not be held to be binding. We held, it is true, in the case of Martyn v. Olson, 148 N. W. 834, that the heirs of a deceased entryman who completed the proof after the death of such entryman took, not as heirs, but as donees or purchasers of the land, and that they could not be required to pay a mortgage which was given by the entryman during his lifetime. In that case, however, the heirs had nothing to do with the original loan, and had agreed to pay no sum, or sums, of money whatever, nor had they entered into any covenants of warranty or of quiet possession. They took from the government as new purchasers or donees, and not as heirs, and though the original mortgage may have contained covenants of warranty and of quiet possession which nominally bound the heirs as well as the mortgagors, such covenants had not been personally entered into by them and, even if they ran with the land, ceased when the title in the mortgagors became extinguished and reinvested in the government. In the case at bar, however, we have a proceeding in equity where the plaintiff seeks to have the title quieted in her. At the threshold she is not merely met by a covenant made by her ancestor which was extinguished when the title was reinvested in the government, but by a personal promise and covenant which she herself made. Surely the maxims apply that He who seeks equity must do equity,” and that He who comes into a court of equity must come with clean hands.” Can she, in a court of equity, seek to quiet title in herself when she herself has promised to quiet and defend that title in the defendant? We hold that she cannot.

Not only is this holding in conformity with the principles of equitable jurisprudence, but it is, we believe, in accordance with a sound public policy. There is every reason to believe that the credit was extended in the case at bar on the assumption that, even if the husband died, before final proof, his wife, if she completed his entry, would live by his contract. The necessity of giving mortgages before the time of final proof is a fact and not a theory among us. Even the federal government has yielded to this fact. It first held that no such mortgage was valid. It and the courts subsequently held that such mortgages were enforceable provided that the entryman proved up before his death and the title became vested when such proof was made. See Martyn v. Olson, supra; Adam v. McClintock, 21 N. D. 483, 131 N. W. 394;Weber v. Laidler, 26 Wash. 144, 66 Pac. 401, 90 Am. St. Rep. 726. They did this because of the exigencies of the situation, and not that the entryman might be injured and defrauded, but that he might be able to obtain credit, without which he would often lose the results of all his labor and sacrifices. They, in short, took cognizance of the fact that dry seasons and failures of crops have been only too common, that the entryman must live during his period of residence and proof, and that unless such entryman can get credit from the local merchants and banks by giving some measure of security and obtain the household necessities and machinery during the dry years, hardship and loss will often result. The rule which it announced is, we believe, not only equitable, but salutary and necessary. It is unreasonable to expect that the local merchants and banks will extend credit without some measure of security. The mortgage to be obtained is at the most unsatisfactory, for if the entryman dies before the making of final proof, it will, in most instances, become void, and can be saved only by the wife completing the proof, if perchance she is bound thereby. Why should not the creditor, as a condition to making the loan or extending the credit, require an assurance by the wife that she will protect the mortgage, and why should not that assurance be held to have been given and to be enforceable where the wife, by the express terms of the mortgage, not merely agrees to pay the debt, but covenants and agrees to uphold the conveyance? In speaking generally, on the subject of the right of a wife to assert an after-acquired title, against the covenants of a prior conveyance, the Supreme Court of Minnesota, in the case of Sandwich Manufacturing Co. v. Zellmer, 48 Minn. 408, 51 N. W. 379, says:

“The question here presented is whether the defendant Fredericke, who...

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6 cases
  • Torgerson v. Hauge
    • United States
    • North Dakota Supreme Court
    • August 16, 1916
    ...the point has been ruled upon adversely, denying such contention in Adam v. McClintock, 21 N. D. 483, 131 N. W. 394, and Martin v. Yager, 30 N. D. 577, 153 N. W. 286. Defendants are estopped to assert such a claim. Title has vested in the father. The federal government has had no interest f......
  • Merchants National Bank of Fargo, a Corp. v. Miller
    • United States
    • North Dakota Supreme Court
    • February 18, 1930
    ... ... adverse rights in any subsequently acquired title. See Smith ... v. Gaub, supra; Martin v. Yager, 30 N.D. 577, 153 ... N.W. 286. Our statute, § 6731 of the Code, says: ...           [59 ... N.D. 279] "Title acquired by the ... ...
  • Merchants' Nat. Bank of Fargo v. Miller
    • United States
    • North Dakota Supreme Court
    • February 18, 1930
    ...the defendant Miller from asserting any adverse rights in any subsequently acquired title. See Smith v. Gaub, supra; Martin v. Yager, 30 N. D. 577, 153 N. W. 286. Our statute, section 6731 of the Code (Comp. Laws 1913), says: “Title acquired by the mortgagor subsequent to the execution of t......
  • Stoll v. Gottbreht
    • United States
    • North Dakota Supreme Court
    • March 11, 1920
    ...reason of their right in the estate of the deceased. Martyn v. Olson, 28 N. D. 317, 148 N. W. 834, L. R. A. 1915B, 681;Martin v. Yager, 30 N. D. 577, 582, 153 N. W. 286. On the face of the patent in this case, not only was proof made, evidently, in behalf of the heirs of the deceased entrym......
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