Patnode v. Dschenes

• Decision Date: 27 January 1906
• Parties: PATNODE v. DESCHENES et al.
• Court: North Dakota Supreme Court

15 N.D. 100

106 N.W. 573

PATNODE

v.DESCHENES et al.

Supreme Court of North Dakota.

Nov. 4, 1905.

Rehearing Denied Jan. 27, 1906.

Syllabus by the Court.

Upon a trial de novo of an action to cancel a conveyance, which is in form a warranty deed, upon the ground that the plaintiff's signature thereto was obtained by fraud, it is held that the finding of the trial court against the allegations of fraud is sustained by the evidence.

It is not essential to a valid acknowledgment by a married woman, under the statutes of this state, that she shall be examined apart from her husband, or that the contents of the instrument which she executes shall be explained to her. Her position is not different from that of a feme sole. She is presumed to know the contents and purport of an instrument which she executes and cannot contest its validity upon the ground that she executed it without knowing its contents, unless fraud is shown.

The finding of the trial court (1) that the deed in question was duly executed and acknowledged by the plaintiff and her husband, and (2) that it was given for security only and is in legal effect a mortgage, is sustained by the evidence; and the judgment of foreclosure awarded to the defendant, the transferee of the note secured thereby, upon his first counterclaim, is approved.

A surety who would absolve himself from liability as such because of an extension granted to his principal, must allege and prove that such extension was given without his consent.

On April 15, 1895, the plaintiff and her husband executed and delivered a warranty deed to one Deschenes, which was duly recorded. The deed was, in fact, given for security. No instrument of defeasance was executed, acknowledged, and recorded. On December 19, 1898, the defendant Leistikow made a real estate loan of $2,000 upon the property to Deschenes. In doing so he relied upon the record title and Deschenes' apparent ownership, and had no actual notice or knowledge that the deed to Deschenes was other than what it purported to be. It is held, construing and applying section 4730, Rev. Codes 1899, that the plaintiff's deed, which purports to be an absolute conveyance, cannot, as to this defendant, be defeated or affected by the parol agreement with Deschenes, of which the defendant had no actual notice, and that the defendant is entitled to a judgment of foreclosure.

Appeal from District Court, Walsh County; W. J. Kneeshaw, Judge.

Action by Celina Patnode against Joseph Deschenes and W. C. Leistikow. Judgment for defendants, and plaintiff appeals. Modified.E. R. Sinkler (Charles F. Templeton, of counsel), for appellant. Jeff M. Myers, for respondents.

YOUNG, J.

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 owed 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 mortgage. Plaintiff appeals from the judgment, and demands a review of the entire case.

The plaintiff contends that her signature to the deed to Deschenes, which she seeks to have canceled, was obtained by fraud. She alleges that she cannot read, write, or speak the English language; that Thomas Tharalson, the notary public who presented the instrument to her for execution stated that “he had a paper which he had obtained from Joseph Deschenes (referring to deed), and that said paper had been agreed to between Joseph Deschenes and said Cyril Patnode, plaintiff's husband, and that it was all right for plaintiff to sign same, and that said Cyril Patnode had instructed him to get her signature to said paper”; that the statement that the instrument had been agreed to by Deschenes and her husband and that the latter wished her to sign it, was false; that the instrument was not read to her; that she was not indebted to Deschenes; that she relied upon Tharalson's statement as to the agreement between Deschenes and her husband, and as to the latter's wishes, and would not have signed the instrument but for such statement. The trial court found against the plaintiff upon the allegation of fraud, and an examination of the evidence has satisfied us with the correctness of the finding. The instrument in question, which is in form a warranty deed, bears the signature of the plaintiff written by herself, and of two witnesses, namely, T. H. Tharalson and Lea Baillargeon. It also bears the signature of her husband, which the evidence shows was affixed in Tharalson's office in Grafton, by making his mark in the presence of several witnesses. The notary's certificate, which is in all respects regular in form, names the 29th day of April, 1895, as the date of the acknowledgment. It is shown that as of the date of the deed, the plaintiff and her husband executed their promissory note for $1,992.35, payable to Deschenes, and the plaintiff's signature on the note was written by herself.

As explanatory of this transaction it may be said that Deschenes was then, and for several years prior thereto had been, a dealer in general merchandise in the city of Grafton. The plaintiff's family consisted of herself, her husband, and 14 children. Their home was upon the land in question, which is situated near Grafton. For a number of years prior to this transaction they had purchased almost all of their family and farm supplies from Deschenes, and during this time had been indebted to him in various amounts. In 1891 Patnode's indebtedness was $635. The plaintiff joined her husband in executing a note for that sum, and also executed a mortgage upon the property now in question to secure it. The indebtedness, instead of decreasing, kept increasing, and in April, 1895, it amounted to $1,992.35, and the note above mentioned was given to cover it. Deschenes testified: That Patnode wanted further credit. That he refused to give it unless he was given a deed of the farm executed by his (Patnode's) wife and himself. “I said, ‘you give me a deed of the farm and I will extend you more credit.’ I said, ‘I don't want your farm.’ I said, ‘When you pay me I will deed your farm back to you or anybody else when you want me to do it.”’ That Patnode assented to this, and that the note for $1,992.35 and the deed in question were executed in pursuance of that arrangement. That he and Patnode went together to Tharalson's office and had the deed drawn. That Patnode signed it there. That Patnode stated that his wife could not come in to sign the deed. That he (Deschenes) then said to Patnode: “I will send Tom tomorrow to get it signed. I said, ‘you can tell her that Tom will be there tomorrow.”’ Tharalson testified on this point as follows: “Mr. Patnode and Mr. Deschenes came up in the office and told me that they wanted a deed written, and gave me the description, and I drew the deed and Mr. Patnode signed it, and there was some conversation as to whether Mrs. Patnode could come in and sign it; but it was finally decided that I would have to go out there, and I went down to Mr. Patnode's place to get it signed. I think it was the next day.” The trial court gave credence to this testimony, and we think rightly so. True, Patnode broadly denies everything, but his denials are not consistent, and are contradicted by the circumstances surrounding the transaction; and his wife's readiness to sign the instrument when informed that it had been arranged between Deschenes and her husband confirms the truth of Deschenes' statement as to what the arrangement was, and that her husband had fully explained it to her. The burden was upon the plaintiff to establish the fraud alleged as grounds for cancellation; i. e., the falsity of...