Patnode v. Deschenes
| Decision Date | 04 November 1905 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Walsh county; W. J. Kneeshaw, J.
Action by Celina Patnode against Joseph Deschenes and W. C Leistikow. Judgment for defendants, and plaintiff appeals.
E. R Sinkler (C. F. Templeton, of counsel), for appellant.
Both spouses must sign and acknowledge instrument affecting homestead. Rev. Codes 1899, section 3608.
Statute must be literally complied with. Section 4, chapter 67, laws of 1891; Cumps v. Kuyo, 80 N.W. 937; Dunn v Tozer, 10 Cal. 167; Lies v. DeDiablar, 12 Cal. 328; Merced Bank v. Rosenthal et al., 31 P. 849; Horboch v. Tyrrell, 67 N.W. 485; Havemeyer v. Dahn et al., 67 N.W. 489; Sav. & Loan Ass'n. v. Strine, 78 N.W. 377; Sewell et al. v. Haymaker, 127 U.S. 719, 32 L.Ed. 299, 8 S.Ct. 1348; Warvelle on Vendors, section 518.
Extension invalidates security. Fellows v. Prentiss, 45 Am. Dec. 484; Smith v. Sheldon, 24 Am. Rep. 529; Hunt v. Smith, 31 Am. Dec. 286; The American Button-Hole, Overseaming and Sewing Machine Co. v. Gurnee, 44 Wis. 49; Andrews v. Marrett, 58 Me. 539, 27 Am. & Eng. Enc. Law, 505; Appleton v. Parker, 15 Gray, 173; Elyton v. Hood, 25 So. 745.
Open and visible possession and occupancy of land is notice of occupant's right. O'Toole et al. v. Omlie et al., 8 N.D. 444, 79 N.W. 849; Dickson v. Dows, 92 N.W. 798, 11 N.D. 407; Simmons Creek Coal Co. v. Doran, 142 U.S. 417, 12 S.Ct. 239; Hodges' Executor v. Amerman, 2 A. 257; Springfield Homestead Ass'n. v. Roll, 137 Ill. 205, 27 N.E. 184; Murphy v. Plankinton Bank et al., 83 N.W. 575; Security Loan & Trust Co. v. Willamette Steam Mills, Lumber & Mfg. Co. et al., 34 P. 321, 323; New v. Wheaton, 24 Minn. 406; Goff v. State Bank, 52 N.W. 651; Maupin v. Emmons, 47 Mo. 304; Brinkman v. Jones, 44 Wis. 498.
Mortgage of homestead is void, if wife of the mortgagor's grantor failed to acknowledge the deed to him. Wheelock v. Caritt, 91 Texas, 97, 45 S.W. 796, 66 Am. St. Rep. 920; LeMesnager et al. v. Hamilton et ux., 101 Cal. 532, 35 P. 1054, 40 Am. St. Rep. 81; Allen v. Lenoir, 53 Miss. 321; Camp v. Carpenter, 52 Mich. 375; Central Bank v. Copeland, 18 Md. 305, 81 Am. Dec. 597.
Leistikow was a mere volunteer, neither surety nor lien-holder, and not entitled to subrogation. Aetna Life Ins. Co. v. Middleport, 124 U.S. 534, 31 L.Ed. 537; Opp v. Ward et al., 125 Ind. 241, 24 N.E. 974; Sudduth v. Gullaher, 248 S.W. 880; Desot v. Ross, 95 Mich. 81, 54 N.W. 694; Skinner v. Terrel, 159 Mass. 475, 34 N.E. 692; White et al. v. Cannon et ux., 125 Ill. 412, 17 N.E. 753; Cumberland Building & Loan Ass'n. v. Sparks, 106 F. 101; Kline v. Rugland, 14 S.W. 474; Kocher v. Kocher, 39 A. 536; Ft. Dodge Building & Loan Ass'n. v. Scott, 53 N.W. 283; Bible v. Wiscarer, 50 S.W. 670; Wormer & Son v. Waterloo Agricultural Works et al., 14 N.W. 331; Bank of Ackley v. Porter et al., 89 N.W. 1094; Fetter on Equity, section 170; Jefferies et al. v. Allen et al., 7 S.E. 828, 831; Rice v. Winters et al., 63 N.W. 830; Meeker v. Larson et al., 90 N.W. 958; Pollock et al. v. Wright et al., 87 N.W. 584; Campbell v. Ass'n., 30 A. 222; Gerber v. Upton, 82 N.W. 363; Wadsworth v. Blake, 45 N.W. 1131; Koehler v. Hughes, 148 N.Y. 507, 42 N.E. 1051; Price v. Courtney, 87 Mo. 387; Berry v. Bullock, 33 So. 410; Downer v. Miller, et al., 15 Wis. 612.
He was guilty of negligence in advancing his money without inquiring as to plaintiff's rights. Subrogation is not allowed to such. Peters v. Huff et al., 88 N.W. 179; Ft. Dodge Building & Loan Ass'n. v. Scott, supra; Mather v. Jenswold, 32 N.W. 512; Gray v. Zelmer, 72 P. 228.
To entitle one to subrogation he must plead facts showing him entitled to it. Richardson v. Traver, 112 U.S. 423, 28 L.Ed. 804; Satterlund v. Beal, 95 N.W. 518, 12 N.D. 122; Anderson v. Chilson et al., 65 N.W. 435; Moorman v. Wood, 117 Ind. 144; Pollock v. Wright, supra.
Myers & Myers, for respondent.
Constructive or legal notice is an inference of law, or legal conclusion. Bonzalus v. Hoover, 6 Serg. & Y. R. 118; Birdsall et al. v. Russell, 29 N.Y. 220; Bradburg, v. Inhabitants of Falmouth, 18 Me. 65; 12 Enc. Pl. & Pr. 1025, par. 2; Id. volume 18, page 803, par. 3.
A surety claiming discharge by reason of extension without his consent, his is the burden to prove lack of consent. Washington Slate Co. v. Burdick, 62 N.W. 285; Guderian v. Leland, 63 N.W. 175; Shepherd v. May, 6 S.Ct. 119, 2 Brandt Sur., section 377; 27 Enc. Law (2d Ed.) 507; 16 Enc. Pl. & Pr. 934; University of Ill. v. Hayes, 87 N.W. 664; Riley v. Riley et al., 84 N.W. 347.
When a defeasance has not been recorded, possession is not actual notice, and does not protect the possessor against an otherwise innocent purchaser or incumbrancer. Crassen v. Swoveland, 22 Ind. 434; Exon v. Dancke et al., 32 P. 1045; Lamb v. Pierce, 113 Mass. 72; Brinkman v. Jones, supra; Tuttle v. Churchman, 74 Ind. 315; Brophy v. B. D. Co., 15 Nev. 113.
Possession is constructive, as distinguished from actual notice. Crassen v. Swoveland, supra; Tuttle v. Churchman, supra; Lamb v. Pierce, supra; Koon v. Kramel et al., 32 N.W. 243; Pomeroy v. Stevenson, 11 Metc. 244; Parker v. Osgood, 3 Allen, 487; Brinkman v. Jones, supra; Dooley v. Walcott, 4 Allen, 406; Sibley v. Leffingwell, 8 Allen, 584; Red River V. Land & Inv. Co. v. Smith, 74 N.W. 194, 7 N.D. 236.
Subrogation is confined to the relation of principal and surety and lienholders forced to take up a paramount claim for his protection. Bank v. Bierstadt, 48 N.E. 161.
This principal has been expounded by later decisions. Heuser v. Sharman, 56 N.W. 526; Emmert v. Thompson et al., 52 N.W. 31.
Under a later authority, one, paying off an incumbrance on realty at the instance of the owner of the property or holder of the incumbrance, either on the express understanding or under circumstances from which such understanding will be implied, that the advance made is to be secured by a first lien on the property, is not a volunteer. 27 Am. & Eng. Enc. Law (2d Ed.) 247, section 5; Wilton v. Mayberry et al., 43 N.W. 901, 6 L. R. A. 61; Carey v. Boyle et al., 11 N.W. 47; Gans v. Thieme, 93 N.Y. 225; Wall v. Mason, 102 Mass. 314; Union Mortgage, Banking & Trust Co. et al. v. Peters & Trezevant et al., 30 L. R. A. 833, 18 So. 497; Emmert v. Thompson, supra; Whiteselle v. Texas Loan Agency, 27 S.W. 309; Park v. Kirbs, 60 S.W. 905; Wyman v. Johnson, 59 S.W. 250; Rachel v. Smith, 101 F. 159; Bruschke et al. v. Wright et al., 46 N.E. 818; Amick v. Woodworth et al., 50 N.E. 437; Levy v. Martin, 4 N.W. 35; Arlington State Bank v. Paulson et al., 78 N.W. 303; Crippen et al. v. Chappel et al., 11 P. 453; Heuser v. Sharman, supra; Boewink v. Christiaanse et al., 95 N.W. 652; Veeder v. McKinley Lanning Loan & Trust Co. et al., 86 N.W. 982; Lashua et ux. v. Myhre, 93 N.W. 811; Sproal v. Larson et al., 101 N.W. 213; Baker v. Baker et al., 49 N.W. 1064; Bank of Ipwish v. Brock et al., 83 N.W. 436; Home Inv. Co. v. Clarson et al., 90 N.W. 153.
Under statutes similar to ours, South Dakota has applied the rule. Bank v. Brock, supra; Home Inv. Co. v. Clarson, supra; Baker v. Baker et al., 49 N.W. 1064.
The plaintiff brought this action to set aside a conveyance, in form a warranty deed, purporting to have been executed by the plaintiff and her husband on April 15, 1895, and conveying 160 acres of land situated in Walsh county to one Joseph Deschenes; also to set aside a certain mortgage thereon subsequently executed by Deschenes in favor of William C. Leistikow, and securing an indebtedness of $ 2,000. Plaintiff, who, prior to the execution of the deed above mentioned, concededly was the owner of the premises, alleges as grounds for avoiding it that "no consideration was paid for said conveyance," that her signature was obtained by fraud, and that, in consequence, it is void, and that Leistikow took the $ 2,000 mortgage with notice of plaintiff's rights and that it is also void. Deschenes and Leistikow were both made defendants. Leistikow alone answered. His answer places in issue all facts alleged as grounds for cancellation, and alleges that the conveyance, while in form a deed, was, in fact, given to Deschenes to secure an indebtedness of $ 1,992.25, which the plaintiff's husband then owned him, the same being evidenced by their joint promissory note; that, on or about April 1, 1901, and since the commencement of this action, said note was duly transferred to him by one R. B. Griffith, Deschenes' trustee in bankruptcy, and is still unpaid; that prior thereto and on December 19, 1898, and without notice or knowledge that the deed from plaintiff to Deschenes was given for security, and in reliance upon the notice imparted by the recording of said deed, i. e., that Deschenes was the fee-simple owner, he loaned to the latter the sum of $ 2,000, which said sum the said Deschenes secured by a mortgage upon the land in question; that no part of this sum has been paid; that $ 1,400 of the said sum of $ 2,000 so loaned to Deschenes was paid by said Leistikow in extinguishment of mortgages which had theretofore been placed upon the premises by the plaintiff and her husband. The answer prays that the deed may be declared to be a mortgage and for a foreclosure of the same; and for the foreclosure of the $ 2,000 mortgage. The trial court found that there was no fraud in procuring the deed; that it was given as security and is in legal effect a mortgage; that defendant is entitled to have the property sold to satisfy the debt which it was given to secure. The judgment declares the deed of April 15, 1895, to be a mortgage and awards a foreclosure of the same, but makes no disposition of the issues in reference to the $ 2,000...
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