Northwestern L. & B. Co. v. Jonasen

• Decision Date: 26 June 1899
• Citation: 79 N.W. 840,11 S.D. 566
• Court: South Dakota Supreme Court
• Parties: NORTHWESTERN LOAN & BANKING COMPANY, Plaintiff and appellant, v. ERIK JONASEN and Marsta Jonasen, Defendants and respondents.

11 S.D. 566

79 N.W. 840

NORTHWESTERN LOAN & BANKING COMPANY, Plaintiff and appellant, v. ERIK JONASEN and Marsta Jonasen,

Defendants and respondents.

South Dakota Supreme Court

Appeal from Circuit Court, Moody County, SD

Hon. J. W. Jones, Judge

Reversed

J. H. Williamson and Aikens & Judge

Attorneys for appellant.

George Rice

Attorney for respondent.

Opinion filed June 26, 1899

(See 82 NW 94)

FULLER, J.

Title to land being questioned, this action of forcible entry and detainer was certified from a justice of the peace to the circuit court, where the defendants obtained judgment, and plaintiff appeals.

That the statutory notice to quit was given, and that the respondents remained in possession after the execution and delivery of a deed to appellant, based upon regular mortgage foreclosure proceedings under a power of sale, appears upon the face of the record, and the only matter of fact in dispute is whether respondent Marsta Jonasen ever joined in the execution of the mortgage given by her husband, Erik Jonasen, upon the homestead, to secure the payment of a portion of the purchase money. Though insisting that the evidence upon the point is wholly insufficient to sustain the verdict, it is urged by counsel for appellant that a mortgage executed by the fee owner of a homestead to secure the purchase price need not be signed by the husband or wife of such owner, and that the court erred in given the following instruction:

“You are to take into consideration all the facts in this case, and determine whether or not the signature of Marsta Jonasen was placed there with her knowledge and consent. If it was, then your verdict should be in favor of the plaintiff. If it was not, your verdict should be for the defendants.”

In this state

“a conveyance or incumbrance by the owner of such homestead shall be of no validity unless the husband and wife, if the owner is married, and both husband and wife are residents of the state, concur in and sign the same joint instrument.”

Comp. Laws, 2451. Although Section 2452 of the Comp. Laws subjects the homestead to the lien of a mechanic, and Section 2453 provides that it “may be sold for any debt created for the purchase thereof,” Chapter 86 of the Laws of 1890, by express terms absolutely exempts the homestead therein defined and limited from all process, levy, or sale. In Fallihee v. Wittmayer,(1897), it was decided that by this act mechanics and material men were deprived of the right to a lien against the homestead; and in the performance of the duty enjoined by Section 4 of Article 21 of the state constitution, requiring the enactment of a wholesome law defining, limiting, and exempting the homestead from forced sale, it seems very clear from the language employed that the legislature of 1890 intended to bestow upon every owner of a homestead absolute immunity from a sale thereof in satisfaction of debts, even though contracted for the purchase price. The mortgagor being the fee-simple owner of the premises impressed with the character of a homestead, and the mortgagees’ interest no more than a lien in the nature of a chattel, there can be no hypothecation unless the purported mortgage was concurred in and signed by both the husband and wife. Comp. Laws, § 2451, as amended by Chapters 76, 77, Laws 1891.

We come now to the main contention. Respondent Marsta Jonasen, being unable to write, it appears that her name was written upon the mortgage by another, and that she signed by making her mark in the presence of two attesting witnesses, and in the usual form acknowledged the execution of the instrument before a notary public. To the point presented by a denial that she ever executed the mortgage, C. B. Kennedy, president of appellant corporation, testified concerning the note and mortgage as follows:

“I saw Erik Jonasen and Marsta Jonasen sign that note and mortgage. Erik Jonasen signed the note and mortgage himself. Marsta Jonasen did not sign her own name to the note and mortgage. John L. Jones signed her name to the note and mortgage for her. I heard her make that request. I saw her make her mark on the note and mortgage. It was done by her taking hold of the pen with Mr. Jones. Mr. Jones had hold of the pen, too. That note and mortgage was delivered to plaintiff after its execution … .

J. L. Jones read over those papers. He would read a clause, and then Mr. Jonasen would talk in Norwegian to her, and explain it, and talk it over. I was in the room at the time, talking frequently myself with them. … ,f said a little while ago that Mrs. Jonasen asked Mr. Jones to write her name on that mortgage. She said, can’t write,’ or words to that effect. ‘You write it.’ She said that in broken English, but enough so I could understand it. She did not talk very much English. She talks a little English. She spoke in English there that day. That is about the extent of it though, that I have repeated. Erik Jonasen signed them first. She held the pen when she made her mark. She held on the end of it, and he held it in his hand. I think she kept hold of it while he made all the marks. There were three mortgages and three notes signed at that time.”

The following is the material part of the testimony of J. L. Jones:

“I saw Erik Jonasen and Mrs. Jonasen sign Exhibits F and G. Erik Jonasen signed them himself. Mrs. Jonasen did not sign them herself, I wrote her name at her request. I witnessed the mark on these instruments. I am the J. L. Jones who took the acknowledgement to this mortgage. I was a notary public at the time. Mrs. Jonasen simply gave me to understand she could not write herself, and asked me to write her name for her. That was immediately after Erik Jonasen had signed them. I offered her the pen, and she refused it, shook her head, and could not write. And asked me to write. After I had written her name (or at the time) she took hold of the pen, and made that mark, in each place, in every instance. I had hold of the pen with her. She had hold of the tip of the pen stock. Erik Jonasen and Mrs. Jonasen afterwards acknowledged the execution of those papers to be their free act and deed.”

Cross-examination:

“Mr. Jonasen signed those papers first. I read it over before either of them signed. After he signed, I offered her the pen, and then she gave me to understand she could not write. She shook her head, and said in very broken English ‘No write,’ or ‘Cannot write.’ When her husband interpreted this mortgage to her I knew enough Norwegian to know he was interpreting it. I could tell something about what he was saying. I hear a great deal of Norwegian in my office every day, I don’t talk it. I understand quite a good deal of it. After they had signed the mortgage, I asked them if. they acknowledged it, and they said they did. Mr. Kennedy was present during the time these papers were being made out.”

To overcome the foregoing evidence, Erik Jonasen did no more than to swear that his wife never signed the papers, and her testimony relating to the matter is as follows:

“I am Erik Jonasens’ wife. I am living with him on a farm near Colman. I went with him to Madison, about three or four years ago. I was there when he was signing some papers. I did not go there with him more than once when he was signing papers. … I did not take a pen, and sign my name to some papers there that day. I cannot write. I did not ask any one to sign my name to some papers there that day. I saw Mr. Jones over there. I did not,when he had the pen in his hand, go up and take hold of the pen. I cannot understand and cannot talk the English language. No one read any papers to me in Norwegian there that day.”

Upon the theory that the certificate of the officer taking the acknowledgment cannot be impeached by the uncorroborated testimony of interested parties, it is urged that the evidence is insufficient to sustain the finding of the jury that Marsta Jonasen did not execute the mortgage, and that the motion to direct a verdict in favor of appellant ought to have been sustained. The view we shall take of the quoted instruction given to the jury, and to which our attention is called by an assignment of error, renders a direct determination of the exact point unnecessary. While an unrecorded mortgage is valid as between the parties and those having notice thereof, the statute requires that it must be acknowledged in order to be recorded, and when acknowledged. and recorded its admission in evidence is expressly authorized without any further proof. Comp. Laws, § 3269, 3297, 5307. Thus the statutory injunction emanating from a wise consideration of public policy, and based upon the presumption that a public officer has properly performed his official duty, makes the recitals of his certificate, written substantially in the form provided by Section 3288 of the Compiled Laws, “evidence without further proof” that the person named there in and in the instrument not only executed, but acknowledged, the execution of such instrument. Though Mrs. Jonasen, who could not write, denies that she asked any one to sign her name, or had the pen in her hand when her mark was made, it is undisputed that she went there with her husband for the purpose of transacting the business, and, according to the recitals of his certificate, was to the notary “well known to be the person who is described in and who executed the within and foregoing mortgage, and acknowledged the same to be her free act and deed, for the purposes...