Omlie v. O'Toole
| Decision Date | 19 June 1907 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Walsh County; Goss, J.
Action by O. H. Omlie against Ann O'Toole and others. Judgment for plaintiff, and defendants appeal.
Affirmed.
Judgment of the district court affirmed, with costs to respondent.
Geo. A Bangs, for appellants.
Under device of conforming pleadings to proof, new cause of action cannot be introduced. Freeman v. Grant, 132 N.Y. 22; Arnold v. Angel, 62 N.Y. 508; McMichael v Kilmer, 76 N.Y. 36; Barnes v. Quigley, 59 N.Y 265; Allen v. Brooks, 50 N.W. 253; Lewark v. Carter, 20 N.E. 119; 1 Enc. Pl. & Pr. 583; Southwich v. First National Bank, 84 N.Y. 420; Mares v. Warrington, 8 N.D. 329, 79 N.W. 441; 1 Enc. Pl. & Pr. 548, 549; Reeder v. Sayre, 70 N.Y. 190; Button v. Towboat Line, 40 Hun. 422; Davis v. Iowa State Ins. Co., 25 N.W. 745; Burns v. Schreiber, 51 N.W. 120.
The husband, without his wife's consent, cannot mortgage the homestead, extend or enlarge terms of mortgage thereon, prolong the statute of limitations upon it, or otherwise change its legal effect. Dunn v. Buckley, 46 Wis. 190, 14 N.W. 67; Jenkins v. Simmons, 37 Kan. 496, 15 P. 522; Barber v. Babel, 36 Cal. 11; Spencer v. Fredendall, 15 Wis. 666; Campbell v. Babcock, 27 Wis. 512; Hardman v. Portsmouth Bank, 61 P. 984; Cumps v. Koyo, 80 N.W. 937; Wood v. Goodfellow, 43 Cal. 185; Waples on Homesteads and Exemptions, p. 426.
A mortgage can be renewed or extended only by writing, with all the formalities of a grant. People's State Bank of Lakota v. Francis, 8 N.D. 369, 79 N.W. 853; Stoddart v. Hart, 23 N.Y. 557; London & San Francisco Bank v. Bandman, 52 P. 583; Wells v. Harter, 56 Cal. 342.
A lien limited to a particular debt cannot be extended to cover another. Locke v. Hubbard, 69 N.W. 588; Nevan v. Roup, 8 Ia. 207; Hathaway v. Fall River Bank, 131 Mass. 14; Jarvis v. Rogers, 15 Mass. 3189; Jones on Liens, section 15; section 4686 Rev. Codes of 1899.
A mortgage is a mere incident to a debt and is extinguished by a payment thereof. Sections 4694 and 4707 Rev. Codes (N.D.) 1899; McMillen v. Richards, 9 Cal. 365; Goodnow v. Ewer, 16 Cal. 461; Skinner v. Buck, 29 Cal. 253; Drake v. Root, 2 Colo. 685.
Even if it is in the form of a deed. 20 Enc. of Law (2nd Ed.) 981; Anderson v. Neff, 11 S. & R. 222; Wentz v. DeHaven, 1 S. & R. 311; Monson v. Monson, 30 Conn. 425; Nichols v. Cole, 3 Head, 92; Grover v. Flyre, 5 Allen, 543; Merrill v. Chase, 3 Allen, 339.
Amount paid for taxes cannot be secured by the quit claim deed. 24 Enc. Law (2d Ed.) 190; Briley v. Cherry, 2 Div. L. 2; 18 Am. Dec. 561; Costello v. Burks, 19 N.W. 247; Wilson v. Campbell, 33 Ala. 249; Snodgrass v. Bank, 25 Ala. 161, 60 Am. Dec. 505.
Plaintiff suing an administrator, cannot prove decedent's signature by his own testimony. Regan et al., Executor, v. Jones, 14 N.D. 591, 105 N.W. 613; Holiday v. Kinne, 22 Fla. 153; Jones on Evidence, section 793; In re. Toomey Estate, 150 Pa. 535; Holcomb v. Holcomb, 95 N.Y. 325; Cunningham's Adm'r v. Speagle, 50 S.W. 244; Montague v. Thompson, 91 Tenn. 168: Harte v. Reichenberg, 92 N.W. 987; Gist v. Gaus, 30 Ark. 285; Robinson v. Dugan, 35 P. 902; Quarrier's Arm'rs v. Quarrier's Heirs, 15 S.E. 154; Jones on Evidence, 793.
A person interested in the event of an action cannot testify as to transactions with deceased. U.S. Loan Co. v. Bitzer, 78 S.W. 183; Board of Com. Louisville v. Marret, 80 S.W. 166; McCowan v. Davenport, 47 S.E. 27; Garritson v. Kinkead, 92 N.W. 55, Pym v. Pym, 96 N.W. 429; Anderson v. Laugen, 99 N.W. 437; Jones v. Riley, 66 N.E. 649; Patton v. Fox, 69 S.W. 287; Swivel v. Hougan, 42 S.E. 151.
J. H. Frame, Jeff M. Myers and J. H. Bosard, for respondent.
If essential averments are omitted from complaint, but supplied by the answer, defect in complaint is cured. Bennett v. Phelps, 12 Minn. 326; Shartle v. Minneapolis, 17 Minn. 308; Rollins v. St. Paul Lbr. Co., 21 Minn. 5; Warner v. Lockerby, 8 N.W. 879; Irwin v. Paulett, 1 Kan. 418; Bierer v. Fretz, 32 Id. 329; Riggs v. Maltby, 59 Ky. 88; Miller v. White, 4 Hun. 62; Erwin v. Schaffer, 72 Am. Dec. 613.
Power to amend should be liberally exercised. Anderson v. First National Bank, 5 N.D. 80, 64 N.W. 114; Martin v. Luger Furn. Co., 8 N.D. 220, 77 N.W. 1003; Lyons v. R. L. & S. Bk., 12 S.E. 882; Waterbury v. Fisher, 38 P. 846; Patterson v. Johnson, 73 N.E. 761; Stephenson v. Stephenson, 72 S.W. 742; Freeman v. Pullen, 31 So. 451; Brainard v. Burk, 148 U.S. 99, 46 L.Ed. 449; Tennant v. Dunlop, 33 S.E. 620; Harrison v. Yerby, 14 So. 321; Milner v. Stanford, 14 So. 644; Fite v. Kennemer, 7 So. 920; Moore v. Alvis, 54 Ala. 356.
An instrument in form a deed may be a mortgage by oral defeasance. Patnode v. Deschenes, 106 N.W. 573, 15 N.D. 100; O'Toole v. Omlie, 8 N.D. 444, 79 N.W. 849.
Extension of debt does not extend the mortgage securing it, so as to release a surety. People's State Bank of Lakota v. Francis, 8 N.D. 369, 79 N.W. 853; Roberts v. Roberts, 10 N.D. 531, 88 N.W. 289; Patnode v. Deschenes, supra.
SPALDING, J. FISK, J., being disqualified, TEMPLETON, J., of the First judicial district, sat in his place.
The complaint in this action alleges that prior to December 5, 1885, one Thomas O'Toole, since deceased, was the owner of the N. 1/2 of the N.E. 1/4 of section 21 and the W 1/2 of the N.W. 1/4 of section 22, in township 159 N., of range 55 W., in Pembina county, N.D., and that on that day he and Ann O'Toole, one of the defendants herein, his wife, conveyed the same to plaintiff by warranty deed, which deed was recorded in the office of the register of deeds in Pembina county on the 8th day of February, 1886, but that said deed was given only for security; that on the 13th day of January, 1887, O'Toole and his wife executed and delivered to plaintiff another deed of the same premises, which deed was duly recorded on the 4th day of February, 1887; that at the time of the execution and delivery of the said deeds said O'Tooles were living upon and occupying said described premises, and continued to do so until the death of Thomas O'Toole; that Thomas O'Toole was indebted to the plaintiff in a large amount, and on or about the 20th day of November, 1894, he had a settlement with plaintiff of all matters relating to said indebtedness, and entered into a contract in writing, whereby the plaintiff agreed to reconvey said land to said O'Toole upon payment by O'Toole to plaintiff of $ 2,800, the amount then due from O'Toole to plaintiff, and certain promissory notes which are set out in the complaint were given, and that in said contract O'Toole promised and agreed to pay all taxes that should accrue against said land after the year 1894, and that the title thereto and to all crops to be grown thereon should be and remain in the plaintiff until all the conditions of said contract should be fully performed by said O'Toole; that no part of said indebtedness has been paid, except $ 162, which was paid on the 1st day of November, 1895, and that O'Toole has neglected and refused to pay the taxes on said premises, and that plaintiff has paid the same, specifying dates of payment and the amount paid; that no action at law or other proceeding has been had to collect the amount due on said contract except certain unavailing attempts to seize grain; and that no action is now pending for the recovery of the money secured thereby, or any part thereof.
Judgment is asked that the amount due from said O'Toole to plaintiff is $ 2,800 with taxes and interest paid, with interest thereon, less the payment made of $ 162, and that the amount found to be due is a lien upon the real property described or any such part thereof as may be sufficient to pay the amount so adjudged to be due and the costs of sale and action, and that there be paid out of the proceeds thereof the costs of sale and action and the amount of such judgment, or any such part thereof as the proceeds of such sale will pay, and for execution for the balance, and the usual other relief asked in foreclosure proceedings. To this complaint defendants answered, denying each and every part thereof, except as specially admitted and alleged that Thomas O'Toole, deceased, and the defendant, Ann O'Toole were husband and wife for more than 20 years before the death of Thomas O'Toole, and during all such time lived together as such; that in 1882 Thomas O'Toole filed on the land described in the complaint under the homestead laws of the United States, and that they established their residence thereon and have resided thereon with their family ever since, and that it is their homestead; that on or about the 5th day of December, 1885, the defendant Ann O'Toole executed and delivered to plaintiff an instrument, in form a warranty deed, but in fact a mortgage of said described premises, to secure the balance of an indebtedness remaining unpaid, created by Thomas O'Toole to plaintiff, on no part of which indebtedness Ann O'Toole was liable; that about the 1st day of February, 1887, she and Thomas O'Toole executed and delivered to plaintiff an instrument, in form a quitclaim deed, which purported to convey said premises to plaintiff, but which in fact was given as security for an indebtedness theretofore created, and then existing from said Thomas O'Toole to plaintiff, for no part of which said Ann O'Toole was responsible or liable, and that neither of said deeds contained any agreement, covenant, or obligation on the part of said Ann to pay or become responsible or liable for the indebtedness of said Thomas, for the security of which said deeds were executed. The answer also alleges that said deeds did not state in full the contract entered into between said Thomas and the...
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