Severtson v. Peoples

• Court: United States State Supreme Court of North Dakota
• Citation: 148 N.W. 1054,28 N.D. 372
• Parties: SEVERTSON v. PEOPLES.
• Decision Date: 14 October 1914

28 N.D. 372
148 N.W. 1054

SEVERTSON
v.
PEOPLES.

Supreme Court of North Dakota.

April 22, 1914.
On Rehearing, Oct. 14, 1914.

[148 N.W. 1054]

Syllabus by the Court.

Plaintiff seeks to have canceled a certain deed executed and delivered by her and her husband to defendant of 11 lots in block 7, and 7 lots in block 4, of the village of New Rockford, alleging that, at the time such deed was executed and delivered, she and her husband and children

[148 N.W. 1055]

were living upon the lots in block 7 and claiming the same as their homestead. She contends that the deed is null and void in toto for the reason, among others, that she never acknowledged the execution of such deed. She failed to allege or prove the extent or value of the property thus claimed as a homestead, or that the various lots are contiguous. Held, that the court cannot grant her relief without proper pleading and proof showing the extent and value of the homestead and that the lots are contiguous; and the cause is ordered remanded to the district court to enable her to supply the above-mentioned deficiencies.

A court of equity will cancel a deed, under the circumstances disclosed in the record, only in so far as it affects the homestead, as limited and defined by the statute.

Under section 5052, Rev. Codes 1905, it is just as essential that the deed conveying the homestead be acknowledged as that it be executed. Without both execution and acknowledgment, the homestead is not conveyed.

A certificate of acknowledgment, regular on its face, is presumed to state the truth, and proof to overthrow such certificate must be very strong and convincing, and the burden of overthrowing the same is upon the party attacking the truth of such certificate.

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

Where, in fact, the grantor has never appeared before the officer and acknowledged the execution of the instrument, evidence showing such fact is admissible, even as against an innocent purchaser for value and without notice.

On Rehearing.

Our homestead law (section 5052, Rev. Codes 1905), providing that the homestead cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife, was designed merely to protect the homestead as limited in both area and value in other sections of the act.

A deed of conveyance by the husband, without his wife joining, of lands including the homestead, is valid as to the excess in extent or value of the land above the homestead exemption.

The grantee under a deed conveying land embracing the homestead has, in equity, rights equal to those of judgment creditors of the vendor to resort to the excess in area or value of such lands over the homestead allowance.

Where the Legislature has failed to provide a remedy for determining such excess, a court of equity will invent a suitable remedy.

In construing a statute which was borrowed from another state, and which had been construed by the courts of that state prior to its adoption here, it will be presumed that our Legislature also borrowed such construction along with the statute as a part thereof.

Certain procedure is suggested for the guidance of the trial court in the appraisal and allotment of the homestead, which suggested procedure is analogous to the statutory procedure governing in cases of homestead claims as against execution creditors.

Appeal from District Court, Eddy County; J. A. Coffey, Judge.

Action by Pearle E. Severtson against H. Peoples. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Maddux & Rinker, of New Rockford, for appellant. C. S. Buck, of Jamestown, for respondent.

FISK, J.

This appeal comes here for trial de novo under the provisions of section 7229, R. C. 1905. The action was brought to cancel and have adjudged to be null and void a certain deed executed and delivered on April 28, 1910, by this plaintiff and her husband, Ernest S. Severtson, to the defendant, and to enjoin defendant from asserting any title to the lands described in the complaint under such deed. In her complaint plaintiff alleges the fact of her signing the deed aforesaid, purporting to convey to the defendant the property in controversy; that such property on the date the deed was executed, constituted the homestead of herself, husband, and children, and that such deed was signed by her-

“while she was under coercion, intimidation, and duress, and undue influence practiced, caused, and brought about by the defendant, who at said time claimed to be acting under authority

[148 N.W. 1056]

of the Bank of New Rockford, N. D.; that plaintiff's husband, at the time of signing of said deed, was, and for many years prior thereto had been, an officer of said Bank of New Rockford; that the defendant, or his agent, prepared said deed without consulting plaintiff and without her knowledge, and plaintiff was induced to sign said deed by reason of the wrongful and fraudulent representation made by defendant to plaintiff that her said husband had embezzled, dissipated, and misappropriated the funds of the said Bank of New Rockford, and with such intention so represented and threatened that, unless plaintiff immediately signed and executed said deed, defendant and said Bank of New Rockford would immediately cause her said husband to be arrested and imprisoned on a charge of embezzlement and misappropriating the funds of said Bank of New Rockford; that defendant, as the officer and agent of said bank, had theretofore made such charges against and to her said husband, and had threatened her said husband with arrest and imprisonment; that she was at that time informed of such representations, threats, and charges; that plaintiff, then and there believing that the defendant and said Bank of New Rockford would immediately cause the arrest and imprisonment of her husband, and to prevent such arrest and imprisonment, and for no other purpose or consideration whatever, signed said deed at the time it was presented; that plaintiff never consented, either jointly with her husband or otherwise, to the execution and delivery of said deed, or to the conveyance by her said husband, or to the conveyance of her said homestead; and that such a deed is void, and of all facts herein alleged said defendant has at all times had full knowledge and notice.”

She also alleges in substance and effect that she did not sign such instrument in the presence of the subscribing witnesses, nor in the presence of R. F. Rinker, the notary public who assumed to take her acknowledgment. She also alleges that, at the time of signing such deed, no real estate whatever was described therein.

The answer puts in issue all the allegations of the complaint relative to fraud, undue influence, and coercion, and alleges affirmatively that plaintiff's husband was owner of the premises in controversy, and that she joined with her husband in executing the deed to the defendant voluntarily and in the ordinary course of business, which deed was duly witnessed and properly acknowledged, and that the defendant, ever since the acknowledgment thereof, has been and now is the owner in fee simple of all the real property described therein, and the defendant prays that his title may be quieted.

At the conclusion of the trial in the district court that court made findings of fact and conclusions of law favorable to the plaintiff, and judgment was given canceling, as null and void, the deed aforesaid-

“as to the homestead interest of said Pearle E. Severtson and Ernest S. Severtson, her husband, in said premises as defined by law, which said homestead interest is to be ascertained as provided by law, and that said deed be decreed to convey no interest or estate in, or lien or incumbrance upon, said homestead interest in said property.”

We are unable to understand just what was intended by the district court to be adjudicated by the judgment as thus entered. It is apparent that the intention was not to declare such deed null and void in toto, but merely as to the “homestead interest” of plaintiff and her husband in such premises “as defined by law.” The court did not therein assume to ascertain and adjudge what such homestead interest was at the date the deed was executed and delivered, or at all, for the language of the judgment, “which said homestead interest in said premises is to be ascertained as provided by law,” clearly shows that the court contemplated that the ascertainment of such homestead interest should be left to a later time and was to be arrived at in some manner provided by law. There is neither proof nor finding that all the real property described in the deed, or any particular portion thereof, constituted the homestead of the plaintiff and her husband. What the extent or value of such homestead was on April 28, 1910, is nowhere alleged in the complaint or disclosed by the evidence. It is true the court found that plaintiff and her husband and children were living on the premises described in the complaint, which consist of 11 lots in block 7, and 7 lots in block 4 of the village of New Rockford, and that they occupied such premises as a homestead from the 28th day of April, 1910, until the date of the trial and for several years prior thereto. But, as the court did not decide that all of these lots or any particular lots included in the deed constituted plaintiff's homestead, the judgment adjudicates nothing, except, perhaps, that plaintiff has an unascertained homestead right in all or a portion of such property, and that the deed, to the extent of such right when ascertained, is null and void.

[1] The action being one to cancel the deed in so far as it involves the homestead of the...