Severtson v. Peoples
| Decision Date | 22 April 1914 |
| Citation | 148 N.W. 1054,28 N.D. 372 |
| Court | North Dakota Supreme Court |
On rehearing October 14, 1914.
Appeal from District Court, Eddy County, J. A. Coffey, J.
From a judgment in plaintiff's favor, defendant appeals.
Judgment vacated and cause remanded for a new trial.
Reversed and remanded.
Maddux & Rinker, for appellant.
The complaint is insufficient in that it fails to join the husband as a party.
He was the record owner of the land,--was head of family.
He is a necessary party unless he has declared another homestead for their joint benefit. Code, §§ 4076, 5049, 5067; Poole v. Gerrard, 6 Cal. 71, 65 Am. Dec. 481; Kraemer v. Revalk, 8 Cal. 74; Foogman v Patterson, 9 N.D. 254, 83 N.W. 15; Martin v Platt, 64 Mich. 629, 31 N.W. 552; Guiod v Guiod, 14 Cal. 507, 76 Am. Dec. 440; Gee v. Moore, 14 Cal. 474; Brennan v. Wallace, 25 Cal. 114; Marks v. Marsh, 9 Cal. 96 and cases cited.
Findings constitute a statement of ultimate facts, and must be based upon competent evidence. A report of what the evidence is, is not a finding of fact. Norris v. Jackson, 9 Wall. 127, 19 L.Ed. 609; Mitchell v. Brawley, 140 Ind. 216, 39 N.E. 497; Hays v. Hostetter, 125 Ind. 60, 25 N.E. 134; 8 Enc. Pl. & Pr. 933, notes and citations; Holt v. Agnew, 67 Ala. 360; 13 Enc. Ev. p. 212, and cases cited; Hookway v. Thompson, 56 Wash. 57, 105 P. 153.
A married woman is presumed to know the contents of an instrument which she executes, and cannot contest its validity on that ground, unless fraud is shown. Patnode v. Deschenes, 15 N.D. 100, 106 N.W. 573; McCardia v. Billings, 10 N.D. 373, 88 Am. St. Rep. 729, 87 N.W. 1008; Code § 5002 and citations; 1 Am. & Eng. Enc. Law, pp. 488, 523.
An acknowledgment cannot be impeached by parol, unless the same is both false and fraudulent. McCardia v. Billings, 10 N.D. 373, 88 Am. St. Rep. 729, 87 N.W. 1008; Laws 1911, chap. 99, p. 180.
The burden is upon the party who seeks to have a deed or mortgage of property declared invalid, on the ground of the homestead character of the property. Grosholz v. Newman, 21 Wall. 481, 22 L.Ed. 471; Apprate v. Faure, 121 Cal. 466, 53 P. 917; McClendon v. Equitable Mortg. Co. 122 Ala. 384, 25 So. 30; Foogman v. Patterson, 9 N.D. 254, 83 N.W. 15; Fitzhugh v. Connor, 32 Tex. Civ. App. 277, 74 S.W. 83; Beecher v. Baldy, 7 Mich. 488; Kilmer v. Garlick, 185 Ill. 406, 56 N.E. 1103; Swan v. Stephens, 99 Mass. 7; Goodloe v. Dean, 81 Ala. 479, 8 So. 197; Worsham v. Freeman, 34 Ark. 55; Webb v. Davis, 37 Ark. 551; Pritchett v. Davis, 101 Ga. 236, 65 Am. St. Rep. 298, 28 So. 666; Helfenstein v. Cave, 6 Iowa 374; Robertson v. Robertson, 14 Ky. L. Rep. 505, 20 S.W. 543; Griffin v. Sutherland, 14 Barb. 456; Fulton v. Roberts, 113 N.C. 421, 18 S.E. 510; Doran v. O'Neal, Tenn. , 37 S.W. 563; Re Delaney, 37 Cal. 176; Hoffman v. Buschman, 95 Mich. 538, 55 N.W. 458; Meyer Bros. Drug Co. v. Bybee, 179 Mo. 354, 78 S.W. 579.
No presumption of homestead character prevails from the actual occupancy of the premises by claimant and family, where there is a statute requiring some formal act of selection. Foogman v. Patterson, 9 N.D. 254, 83 N.W. 15; 6 Enc. Ev. p. 519 and citations; Hawthorne v. Smith, 3 Nev. 189, 93 Am. Dec. 397; 10 Pl. & Pr. p. 86, note 1.
Where the statute provides the manner in which a homestead exemption may be declared and claimed, it is mandatory upon the claimant to follow it strictly, or the right is waived. The value, and extent or area must be shown, alleged, and proved. Rev. Codes 1905, § 5067, subsec. 4; Shoemaker v. Gardner, 19 Mich. 96; Martin v. Platt, 64 Mich. 629, 31 N.W. 352; Swan v. Stephens, 99 Mass. 7.
There must be a finding that plaintiff is the head of a family. This fact cannot be presumed. Rev. Codes 1905, § 5070.
Fraud is alleged upon information and belief. Motion to strike out was denied. This was error. 9 Enc. Pl. & Pr. 694, and cases cited; Rev. Codes 1905, §§ 5288, 5290, 5291; Robon v. Walker, 74 Ga. 823.
The court cannot determine the homestead or its character without due proof. Linn County Bank v. Hopkins, 47 Kan. 580, 27 Am. St. Rep. 309, 28 P. 606; Randal v. Elder, 12 Kan. 257, and cases cited; Kresin v. Mau, 15 Minn. 116, Gil. 87.
The actions of a person executing a deed are as much an acknowledgment to a notary, as words spoken would be. 1 Am. & Eng. Enc. Law, 525, 526, note 1.
The very act of executing a deed to property constitutes an abandonment thereof. Butler v. Nelson, 72 Iowa 732, 32 N.W. 399; 6 Enc. Ev. 548 and cases cited; Doran v. O'Neal, Tenn. , 37 S.W. 563.
C. S. Buck, for respondent.
The homestead interest is purely statutory, unknown to common law. In conveying, the homestead must be strictly followed. The deed of the homestead of a married person must be executed and acknowledged by both husband and wife. Rev. Codes 1905, §§ 5052, 5065; Calmer v. Calmer, 15 N.D. 120, 106 N.W. 684; 21 Cyc. 458, 559.
The wife has the right to bring action to have homestead rights protected and adjudged. Dieter v. Fraine, 20 N.D. 484, 128 N.W. 684; Adams v. Beale, 19 Iowa 61; Eve v. Cross, 76 Ga. 695; Boling v. Clark, 83 Iowa 481, 50 N.W. 57; McKee v. Wilcox, 11 Mich. 358, 83 Am. Dec. 743; Andrews v. Melton, 51 Ala. 400; Comstock v. Comstock, 27 Mich. 97; 21 Cyc. 635; Ness v. Jones, 10 N.D. 587, 88 Am. St. Rep. 755, 88 N.W. 706; McClure v. Braniff, 75 Iowa 38, 39 N.W. 171; Goodwin v. Goodwin, 113 Iowa 319, 85 N.W. 31; Houston & T. C. R. Co. v. Knapp, 51 Tex. 592; Rev. Codes 1905, §§ 5052, 5066; 10 Enc. Pl. & Pr. 59, note 2, p. 83, note 3 and cases; Bolton v. Oberne, 79 Iowa 278, 44 N.W. 546; 1 Cyc. 512; Fisher v. Meister, 24 Mich. 453.
A deed, unacknowledged, purporting to convey property other than the homestead but with the homestead, is void as to the whole. Edwards v. Simms, 8 Ariz. 261, 71 P. 902; Cook v. McChristian, 4 Cal. 23; Goodrich v. Brown, 63 Iowa 247, 18 N.W. 893; Richards v. Chace, 2 Gray, 383; Dye v. Mann, 10 Mich. 291; Sammon v. Wood, 107 Mich. 506, 65 N.W. 529; Delisha v. Minneapolis, St. P. R. & D. Electric Traction Co. 110 Minn. 518, 27 L.R.A.(N.S.) 963, 126 N.W. 276; Kaiser v. Klein, 29 S.D. 464, 137 N.W. 52; Goodwin v. Goodwin, 113 Iowa 319, 85 N.W. 31; Karsten v. Winkelman, 209 Ill. 547, 71 N.E. 45.
A deed of a tract of land, including a homestead, will be void entirely, where the homestead, on account of impossibility of location, cannot be severed from the entire tract. Sammon v. Wood, 107 Mich. 506, 65 N.W. 529; Goodykoontz v. Olsen, 54 Iowa 174, 6 N.W. 263; Ryan v. Carr, 46 Mo. 483; Den ex dem. Robinson v. Barfield, 6 N.C. (2 Murph.) 391; Grove v. Todd, 41 Md. 633, 20 Am. Rep. 76; Pearce v. Patton, 7 B. Mon. 162, 45 Am. Dec. 61; Alabama L. Ins. & T. Co. v. Boykin, 38 Ala. 510; Armijo v. New Mexico Town Co. 3 N. M. 244, 5 P. 709.
No technical duress need be established. Clement v. Buckley Mercantile Co. 172 Mich. 243, 137 N.W. 657.
FISK, J. BURKE, J., did not participate.
This appeal comes here for trial de novo under the provisions of § 7229, Rev. Codes 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 practised, caused, and brought about by the defendant, who at said time claimed to be acting under authority of the Bank of New Rockford, North Dakota; 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...
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