Roberts v. Roberts
| Decision Date | 27 November 1901 |
| Citation | 88 N.W. 289,10 N.D. 531 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by C. C. Roberts against Callie Roberts executrix of the estate of Lorenzo D. Roberts, deceased, for the foreclosure of a mortgage. From a judgment denying foreclosure, plaintiff appeals. Reversed.
Reversed.
Pollock & Scott, for appellant.
S. B Bartlett and Benton, Lovell & Holt, for respondent.
This is an action brought for the foreclosure of a mortgage upon real estate situated in Cass county. The mortgage was executed and delivered to the plaintiff on the 1st day of October, 1888, by Lorenzo D. Roberts and Callie Roberts, his wife. It was given to secure the payment of a certain promissory note for the sum of $ 3,118, and interest thereon at 8 per cent. per annum and payable on demand to C. C Roberts, and was executed by L. D. Roberts individually on October 1, 1888. The said L. D. Roberts was the husband of Callie Roberts, and died on the 16th day of May, 1899, and before the commencement of this action. The land involved in this suit and described in the mortgage was at the time of the execution of such mortgage, and continued to be up to the death of said L. D. Roberts, the homestead of said L. D. Roberts and Callie Roberts, and the same has ever since been occupied as a homestead by the said Callie Roberts and her adopted daughter. The consideration for the giving of the note and mortgage was money loaned by the plaintiff to his brother, the said L. D. Roberts. This money was used in the development and improvement of such homestead, and in buying stock and machinery for its cultivation. On January 1st, 1895, the sum of $ 1,766.83 was paid on said note, and on January 1, 1897, the further sum of $ 25 was paid thereon, and each of such payments was duly indorsed on said note. These payments were made by L. D. Roberts, without the knowledge or consent of Callie Roberts. She did not know of such payments until the fall of 1899, and after her husband's death. The defendant Callie Roberts never received, directly, any part of the money for which the mortgage was given as security. The mortgage contained an express covenant on the part of the mortgagors to "pay or cause to be paid the sum of money above specified at the time and in the manner above specified.' The mortgage contained a full description of the indebtedness as expressed by the note. The money for which this note was given, and which was secured by the mortgage, was loaned to said L. D. Roberts without any security at first. But about eight months after such loan the note and mortgage were executed at the request of the mortgagor, L. D. Roberts. The action is brought against Callie Roberts as executrix of the estate of L. D. Roberts deceased. She answers in such capacity and individually, that she executed the said mortgage as a surety for her husband, and at his solicitation and request; that she received no consideration whatever for the giving of the same; that the plaintiff well knew that she executed such mortgage as surety for her husband only; that no payments were ever made on such note or mortgage with her knowledge, consent, or authority; that the cause of action based on such mortgage so far as the mortgage is concerned, did not accrue within ten years prior to the commencement of the action. The trial court found in her favor, and dismissed the action as to her personally, and ordered judgment against her as executrix for the full amount claimed, but refused to order a judgment for the foreclosure of the mortgage. Plaintiff appeals from such judgment, and requests a trial de novo in this court under the provisions of § 5630, Rev. Codes.
From the pleadings and the evidence the following facts may be considered entirely uncontradicted. That the indebtedness represented by the note and secured by the mortgage was the individual debt of the husband, and not the debt of the wife; that the wife executed the mortgage at the request of her husband; that the real estate secured by the mortgage was then occupied as the homestead of such parties; that such homestead was set apart to Callie Roberts as the widow of L. D. Roberts, deceased, by the county court of Cass county, and the same is now held and occupied by her and her daughter as such; that the wife received no consideration for the execution of the mortgage.
It is claimed by the defendant that in executing the mortgage the relation of principal and surety was created between her and her husband, and the case of Bank v Francis, 8 N.D. 369, 79 N.W. 853, and other cases, are cited to support such contention. We are not called upon to determine that question in our decision of the case, for the reason that no personal judgment is sought to be obtained against her. Such liability is not claimed in the complaint, and is disclaimed in the brief. The real question to be determined by us is whether the lien of the mortgage existed as against the defendant when the action was commenced; whether payments made by the husband, without the knowledge or consent of the wife, during the life of the mortgage, operated to continue the lien of the mortgage as against the homestead after the time it would have been released from such lien had no payments ever been made thereon. These payments made by the husband had the effect of continuing the debt in force so far as the husband was concerned, and it and the mortgage were both in force at the time this action was commenced, so far as his interests are concerned. If the mortgage is in force so far as the defendant is concerned, it is so by virtue of the fact that the payments made by the husband prevented the running of the statute, except as commencing at the date of such payments. No payments were ever made by the wife or on her behalf. To determine the effect of such payment by the husband, the following facts must be considered and borne in mind: The mortgage was given upon the property of the husband. The title was vested in him exclusively. The land was his land and his homestead, as the head of the family. He controlled it and its rents, profits, or products. Her right to the land during his life was the right to occupy and live upon it as his wife, and to make her home with her husband. She could also prevent her husband from selling or...
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