Rasmussen v. Stone

• Decision Date: 08 May 1915
• Parties: RASMUSSEN v. STONE et al.
• Court: North Dakota Supreme Court

30 N.D. 451

152 N.W. 809

RASMUSSEN

v.STONE et al.

Supreme Court of North Dakota.

May 8, 1915.

Syllabus by the Court.

A mortgage on a homestead of a married man, in order to be valid, must be both executed and acknowledged by the wife.

To constitute an acknowledgment, the grantor must appear before the officer, and such grantor must, in some manner, with a view to giving it authenticity, make an admission to such officer of the fact that he had executed such instrument.

Evidence examined, and held to be no such admission in the case at bar.

Evidence examined, and alleged signatures of wife to notes and mortgage held not to be her signatures.

Appeal from District Court, Morton County; Nuchols, Judge.

Action by Bertina Rasmussen against Harold Leroy Stone and another. From judgment for plaintiff, defendants appeal. Affirmed.B. W. Shaw, of Mandan, for appellants. John F. Sullivan, of Mandan, for respondent.

BRUCE, J.

This is an action to quiet title in the plaintiff, Bertina Rasmussen, to a quarter section of land, and is brought in the form of the statutory action to determine adverse claims. The defendant answers, setting up certain mortgages alleged to have been executed by the plaintiff and her deceased husband, Hans C. Rasmussen, and asks to have these mortgages foreclosed. The plaintiff replies, denying the execution of the notes and mortgages as far as she is concerned and alleging that said notes and mortgages are void, as the land involved was the homestead of herself and her husband. The trial court found for the plaintiff and quieted the title in her. Counsel for appellant admitted upon the argument that the land in question was in fact the legal homestead of the parties. The only question in this case, therefore, is whether the evidence in the record sustains the finding of the trial court that the notes and mortgages were not executed by the wife. This question must be determined by us upon a review of the whole evidence, as a trial de novo is asked.

[1] We are of the opinion that the trial court did not err in its findings and that the evidence sustains his conclusions. Section 5608, Compiled Laws of 1913, provides:

“The homestead of a married person cannot be conveyed or incumbered, unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife.”

This statute makes essential to a valid conveyance, not merely the acknowledgment by the wife, but the execution also. We are quite satisfied from a perusal of the evidence that there was no acknowledgment, as the notary public goes into the details of the transaction, and can nowhere be made to say that any such thing took place. He merely testifies that the wife came to his office and told him that she would not stand in the way of her husband making a loan. He nowhere states that she told him that she had signed the notes and mortgage, or that she had attached her signature thereto. His testimony is as follows:

“Q. You don't know Bertina Rasmussen's signature when you see it? A. I have seen it. I would not say that I would know it when I saw it, and be positive about it.

The Court: Have you seen Mrs. Rasmussen sign her name? A. I can't say positively that I have. Q. Who was present at the office when you claimed she came there that day after. the papers were brought back to you? A. No one but myself. Q. You were there all alone? A. Yes. Q. Did you pick up these particular papers and go over each one of the papers and ask her if she signed it? A. I don't know as I showed her every particular paper. I just picked up the bunch and pulled the rubber off from them. Q. And separated them out? A. I can't state positively that I did or did not. Q. You won't swear that you did? A. No; I won't swear to it. Q. What did you say to her with reference to the signing of these papers? A. I said, ‘I suppose you came to acknowledge these papers?’ Q. Then she next objected to her husband making this loan? A. Yes. Q. Then she said if he was bound to make the loan, she would not stand in his way? A. That is about the substance of it. Q. Is that all of the conversation? A. I said, ‘Do you want me to put my...