Sexton v. Sutherland

• Decision Date: 21 July 1917
• Court: North Dakota Supreme Court

164 N.W. 278

37 N.D. 500

PATRICK SEXTON and Margaret Sexton v. S. S. SUTHERLAND and Frank Windmueller

Supreme Court of North Dakota

July 21, 1917

Appeal from District Court of Stark County, Crawford, J.

From an order overruling a demurrer to the complaint as to the plaintiff Margaret Sexton, the defendant Sutherland appeals.

Affirmed.

C. H Starke, for appellants.

Issues of fact must be tried at the regular term of the district court, if the trial is by jury; otherwise at a regular or special term. Comp. Laws 1913, § 7609.

The manner in which cases are brought on for trial is provided by statute. Comp. Laws 1913, § 7610.

Our statute provides that any person having an estate in interest in, or lien or encumbrance upon the land, may maintain an action to determine adverse claims to lands. The action being statutory, only such designated persons may maintain it. Power v. Bowdle, 3 N.D. 107, 21 L.R.A 328, 44 Am. St. Rep. 511, 54 N.W. 404; Buxton v Sargent, 7 N.D. 503, 75 N.W. 811; McHenry v. Kidder County, 8 N.D. 415, 79 N.W. 875; Hooper v. Henry, 31 Minn. 264, 17 N.W. 476.

The legal title to the land here in question is in the name of the husband. The only right of Margaret Sexton to maintain this action is predicated upon the fact that she is the wife of the legal owner and that the land is their homestead. The question raised by the demurrer is whether or not these facts give her such "an interest" in the land as will permit her to maintain this action, or whether the action can be maintained jointly by husband and wife. Conrad v. Adler, 13 N.D. 202, 100 N.W. 722; San Francisco v. Ellis, 54 Cal. 72; Walton v. Perkins, 28 Minn. 413, 10 N.W. 424.

The homestead right is an exemption, not an "estate."

"It is difficult to understand how the right of an owner of particular land to hold such land exempt from liability for debts can be in any sense an estate." Tiedeman, Real Prop. 1121; Black v. Curran, 14 Wall. 463, 20 L.Ed. 849; McDonald v. Crandall, 43 Ill. 231, 92 Am. Dec. 112; Waples, Homestead, chap. 9.

The statutory restraint upon alienation in the case of the married man does not change the character of the right in any respect. Arnold v. Waltz, 53 Iowa 706, 36 Am. Dec. 248, 6 N.W. 40; Greenwood v. Maddox, 27 Ark. 649.

"The wife cannot properly be said to have any estate in the homestead property of her husband during his life, and the application of the term "estate" to her statutory right to prevent any alienation by him, or to her contingent right to succeed, on his death, to the homestead privilege, is to be avoided." Tiedeman, Real Prop. 506; Gee v. Moore, 14 Cal. 472; Pounds v. Clarke, 70 Miss. 263, 14 So. 22; Creath v. Creath, 86 Tenn. 659, 8 S.W. 847; Godfrey v. Thornton, 46 Wis. 677, 1 N.W. 362; Burns v. Keas, 21 Iowa 257; Jenness v. Cutler, 12 Kan. 515; Const. § 208.

Neither by statute nor court decision has this state ever recognized any right of the wife in the homestead of her husband during his lifetime.

The word "interest" as used in our statute means some present right of property in the land itself, either legal or equitable. In this statute such expression is grouped with others which can only bear the meaning above stated. They are "estate," "liens," "encumbrances," all of which expressions mean some live, present, existing interest in lands. Tiedeman, Real Prop. p. 506, Act 1860, § 1; Dalrymple v. Security Loan & T. Co. 9 N.D. 306, 83 N.W. 245.

The right of the wife in the homestead of her husband during his lifetime is not an "interest" in the land, and she cannot maintain an action to determine adverse claims. Williams v. Santa Clara Min. Asso. 66 Cal. 193, 5 P. 85; Comp. Laws 1913, § 8144; 32 Cyc. 1348-E; Grider v. American Freehold Land & Mortg. Co. 99 Ala. 281, 42 Am. St. Rep. 58, 12 So. 775.

Casey & Burgeson, for respondent.

The court did not err in ordering that the case stand for trial upon ten day's notice, as a condition for allowing an answer, after overruling a demurrer. Comp. Laws 1913, § 7481; Walker v. Maronda, 15 N.D. 63, 106 N.W. 296.

It is held that courts do not abuse their discretion when they order an answer filed upon the date of their ruling upon demurrer. Davis v. Peck, 12 Colo.App. 259, 55 P. 192.

In adverse claim actions, "an action may be maintained by any person having an estate or interest in or lien or encumbrance upon real property." Comp. Laws 1913, § 8144.

The interest of the wife in the homestead is fully as great as that of the husband, and this is true even though the legal title remains of record in the name of the husband during his lifetime. The wife may unite with the husband in an action to set aside a conveyance or mortgage of the homestead premises in which she did not join. Shoemaker v. Collins, 49 Mich. 595, 14 N.W. 559; Revalk v. Kraemer, 8 Cal. 66, 68 Am. Dec. 304; Watts v. Gallagher, 97 Cal. 47, 31 P. 626; McDonald v. Sanford, 88 Miss. 633, 117 Am. St. Rep. 758, 41 So. 369, 9 Ann. Cas. 1; Larson v. Reynolds, 13 Iowa 579, 81 Am. Dec. 444.

The homestead of the family in this state is absolutely exempt from attachment or mesne process, and from levy and sale upon execution. Dieter v. Fraine, 20 N.D. 484, 128 N.W. 684; McDonald v. Sanford, 88 Miss. 633, 117 Am. St. Rep. 758, 41 So. 369, 9 Ann. Cas. 1.

The homestead belongs to and is for the benefit of the family. Larson v. Reynolds, 13 Iowa 579, 81 Am. Dec. 444.

The wife may join with the husband in an action to quiet title to the homestead. Rasmussen v. Stone, 30 N.D. 451, 152 N.W. 809; Engholm v. Ekrem, 18 N.D. 185, 119 N.W. 35; Erickson v. Wiper, 33 N.D. 193, 157 N.W. 592.

The wife's right or "interest" in the homestead does not depend upon the will or caprice of the husband. Comp. Laws 1913, § 5627.

CHRISTIANSON, J. ROBINSON, J. (dissenting).

OPINION

CHRISTIANSON, J.

This is an appeal from an order of the district court of Stark county overruling a demurrer to the complaint of the plaintiff Margaret Sexton.

The action is brought to determine adverse claims to a certain lot in the city of Dickinson. The plaintiffs filed the following joint complaint:

"The plaintiffs for their complaint herein allege and show to the court: (1) That the plaintiff Margaret Sexton is the wife of the plaintiff Patrick Sexton, and joins with him in this action for the purpose of quieting title in the lands and premises hereinafter described, which is and for more than six years last past has been the homestead of herself and husband; that this action is for the purpose of freeing the title to such premises from all liens and encumbrances of whatever description claimed by the defendants, which lien and encumbrances have grown out of mortgages signed by her husband without being either signed or acknowledged by herself, the said Margaret Sexton.

"(2) That the plaintiff Patrick Sexton is the owner in fee simple of the following described real property, situated in the county of Stark and state of North Dakota, to wit:

"Lot two (2) in block two (2) in Hilliard and Manning's second addition to the city of Dickinson, according to the plat thereof on file and of record in the office of the register of deeds, Stark county, North Dakota.

"(3) That the defendants claim certain estates or interest in or liens or encumbrance upon the same, adverse to plaintiffs.

"Wherefore, plaintiffs pray:

"1. That defendants be required to set forth all of their adverse claims to the property above described, and that the validity, superiority, and priority thereof be determined.

"2. That the same be adjudged null and void, and that said defendants be deemed to have no estate or interest in, or lien or encumbrance upon, said property.

"3. That plaintiff's title be quieted to such lands and premises as against the defendants or either of them, and that the defendants be forever debarred and enjoined from further asserting the same.

"4. That they have such other and general relief as to the court seems just, together with the costs and disbursements of this action."

The defendant Sutherland demurred to the complaint as to the plaintiff Margaret Sexton, on the ground that it does not state facts sufficient to constitute a cause of action. It is conceded that the complaint states a cause of action so far as the plaintiff Patrick Sexton is concerned.

Under our statute a misjoinder or excess of parties plaintiff does not constitute a ground for demurrer. Olson v. Shirley, 12 N.D. 106, 96 N.W. 297. Whether a defendant may single out one of several joint plaintiffs and demur to the complaint as to such plaintiff, on the ground that the complaint does not state a cause of action, is by no means free from doubt. It is at least an unusual procedure, and one not to be encouraged, because if a joint complaint states a cause of action in favor of any of such plaintiffs it tenders an issue for trial. Ordinarily the only parties likely to be injured because unnecessary persons have been made parties to an action are such parties themselves. If these persons do not object to being made parties, as a general rule, other persons have no cause for complaint. The mistake, if any, in joining unnecessary parties may be corrected on the final decree, as the judgment will be so framed as to work full and substantial justice, and obviously no relief will be allowed to any plaintiff who has failed to allege or establish sufficient facts to show that he is entitled thereto. See Brown v. Lawton, 87 Me. 83, 86, 32 A. 733; 30 Cyc. 141. See also Webster v. Kansas City & S. R. Co. 116 Mo. 114, 22 S.W. 474.

The splitting of a joint complaint in the manner adopted in this case tends to encumber the records of this court with needless appeals. It seems that the legislature intended that this practice should not be...