Martin v. Yager

Decision Date17 February 1915
Citation153 N.W. 286,30 N.D. 577
CourtNorth Dakota Supreme Court

On petition for rehearing June 2, 1915.

Appeal from the District Court of Pierce County, Burr, J.

Action to determine adverse claims to real estate. Judgment for plaintiff. Defendant appeals.

Reversed.

Reversed and remanded with directions.

Torger Sinness and Middaugh, Cuthbert, Smythe, & Hunt, for appellant.

Title acquired by the mortgagor subsequently to the execution of the mortgage inures to the mortgagee as security for the debt, in like manner as if acquired before the execution. Rev. Codes 1905, § 615; Comp. Laws 1913, § 958; Civ. Code 1877, § 1727, subsec. 2; U. S. Rev. Stat § 2291, Comp. Stat. 1913, § 4532.

A mortgagor is estopped from asserting the invalidity of his mortgage through lack of title, contrary to the covenants of the mortgage contract. Rev. Codes 1905, § 6155; Comp Laws 1913, § 6731; Sommers v. Wagner, 21 N.D 531, 131 N.W. 797; Sandwich Mfg. Co. v. Zellmer, 48 Minn. 408, 51 N.W. 379; Adam v. McClintock, 21 N.D. 483, 131 N.W. 394; Clark v. Baker, 14 Cal. 612, 76 Am. Dec. 449.

The fact that title subsequently comes from the United States makes no difference. It is the voluntary contract of the party in executing the mortgage that prevails. Kirkaldie v. Larrabee, 31 Cal. 455, 89 Am. Dec. 205; Clark v. Baker, 14 Cal. 630, 76 Am. Dec. 449; Orr v. Stewart, 67 Cal. 275, 7 P. 693; Christy v. Dana, 42 Cal. 174; Camp v. Grider, 62 Cal. 20; Vallejo Land Asso. v. Viera, 48 Cal. 572.

A homesteader may make a valid mortgage on the land while it is yet owned by the government, and his title subsequently acquired inures to the mortgagee as security for the debt. Weber v. Laidler, 26 Wash. 144, 90 Am. St. Rep. 726, 66 P. 401; 2 Herman, Estoppel, § 895, p. 1018.

Either husband or wife may enter into any engagement with the other, or with any other person, respecting property, which the other might enter into if unmarried. Colonial & U. S. Mortg. Co. v. Stevens, 3 N.D. 265, 55 N.W. 578.

H. B. Senn, for respondent.

Where a homestead entryman files on a government homestead, and after such filing he and wife execute a mortgage on such land, and thereafter such entryman dies before making final proof and before earning the right to patent, and the widow completes the residence and makes proof and receives patent in her own name, the mortgage is not a valid instrument. Marley v. Sturkert, 62 Neb. 163, 89 Am. St. Rep. 749, 86 N.W. 1056; Bergstrom v. Svenson, Ann. Cas. 1912C, 699, note.

Such a mortgage is ineffectual to constitute a lien as against those who, under the public land laws, had fulfilled the requirements of the law and obtained patent. Cheney v. White, 5 Neb. 261, 25 Am. Rep. 487; Webster v. Bowman, 25 F. 889; Rogers v. Clemmans, 26 Kan. 522; Schoolfield v. Houle, 13 Colo. 394, 22 P. 781; Wittenbrock v. Wheadon, 128 Cal. 150, 79 Am. St. Rep. 32, 60 P. 664; Gjerstadengen v. VanDuzen, 7 N.D. 613, 66 Am. St. Rep. 679, 76 N.W. 233; 32 Cyc. 1076, note 36; Herbert v. Brown, 65 F. 2; 26 Am. & Eng. Enc. Law, 411, note 7.

A person may make a valid mortgage on public land if he thereafter makes proof and obtains patent. Bull v. Shaw, 48 Cal. 455; Rogers v. Minneapolis Threshing Mach. Co., 48 Wash. 19, 92 P. 774, 95 P. 1014; Stewart v. Powers, 98 Cal. 514, 33 P. 487; Weber v. Laidler, 26 Wash. 144, 90 Am. St. Rep. 726, 66 P. 400; Freese v. Rusk, 54 Kan. 274, 38 P. 255; McCune v. Essig, 199 U.S. 382, 50 L. ed. 237, 26 S.Ct. 78; U. S. Rev. Stat. §§ 2291 and 2292; Comp. Stat. 1913, §§ 4532, 4543.

Heirs take as new entryman. Bernier v. Bernier, 147 U.S. 242, 37 L. ed. 152, 13 S.Ct. 244.

Upon the death of an entryman, his rights cease. His heirs are given a mere preference as new homesteaders. Towner v. Rodegeb, 33 Wash. 153, 99 Am. St. Rep. 936, 74 P. 50; Aspey v. Barry, 13 S.D. 220, 83 N.W. 91; Gould v. Tucker, 20 S.D. 226, 105 N.W. 624; Bergstrom v. Svenson, 20 N.D. 55, 126 N.W. 497, Ann. Cas. 1912C, 694; Shiver v. United States, 159 U.S. 491, 40 L. ed. 231, 16 S.Ct. 54; Campbell v. Wade, 132 U.S. 34, 33 L. ed. 240, 10 S.Ct. 9; Wagstaff v. Collins, 38 C.C.A. 19, 97 F. 3; Frisbie v. Whiting, 9 Wall. 187, 19 L. ed. 668.

Those who are given such preference right perform the conditions not as successors in interest, but as grantees or donees of the government. Shepley v. Cowan, 91 U.S. 330, 23 L. ed. 424; Gonzales v. French, 164 U.S. 338, 41 L. ed 458, 17 S.Ct. 102; Anderson v. Carkins, 135 U.S. 483, 34 L. ed. 272, 10 S.Ct. 905; Hall v. Russell, 101 U.S. 503, 25 L. ed. 829; Maynard v. Hill, 125 U.S. 190, 31 L. ed. 654, 8 S.Ct. 723; Wittenbrock v. Wheadon, 128 Cal. 150, 79 Am. St. Rep. 32, 60 P. 664; Towner v. Rodegeb, 33 Wash. 153, 99 Am. St. Rep. 936, 74 P. 50; Dawson v. Mayall, 45 Minn. 408, 48 N.W. 12; Gjerstadengen v. VanDuzen, 7 N.D. 612, 66 Am. St. Rep. 679, 76 N.W. 233; Hershberger v. Blewett, 55 F. 177; 26 Am. & Eng. Enc. Law, 255.

At the time Anna Martin (Volk) signed the mortgage with her husband, she merely released her possible homestead right in the land. She did not become a surety for the husband. Omlie v. O'Toole, 16 N.D. 126, 112 N.W. 677; Roberts v. Roberts, 10 N.D. 531, 88 N.W. 289; Kuhnert v. Conrad, 6 N.D. 215, 69 N.W. 185; Helgebye v. Dammen, 13 N.D. 167, 100 N.W. 245; 21 Cyc. 543; Yerkes v. Hadley, 5 Dakota 324, 2 L.R.A. 363, 40 N.W. 340.

OPINION

Statement of facts by

BRUCE J.

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 Michael 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 §§ 2291, 2301, U.S. Rev. Stat., 6 F. Stat. Anno. 292, 317, Comp. Stat. 1913, §§ 4532, 4589, § 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 defendant has appealed and asks for a trial de novo.

BRUCE, J. (after stating the facts as above). 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 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 Dakota 324; 2 L.R.A. 363, 40 N.W. 340; Hill v. West, 8 Ohio 222, 31 Am. Dec. 442; Adam v. McClintock, 21 N.D. 483, 131 N.W. 394; § 6155, Rev. Codes 1905, § 6731, Comp. 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 any other 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 seised of the said premises, and that they have good right to convey the same; that the same are free from all encumbrances; 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, 28 N.D. 317 148 N.W. 834, that the heirs of a deceased...

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