Smith v. Wade, 34652

• Decision Date: 29 January 1960
• Docket Number: No. 34652,34652
• Citation: 169 Neb. 710,100 N.W.2d 770
• Parties: Mildred SMITH, also known as Mildred R. Smith and Mildred Smith, as next friend of Ralph Smith, Appellants, v. Lynn R. WADE and Naomi Wade, Appellees.
• Court: Nebraska Supreme Court

Page 770

100 N.W.2d 770

169 Neb. 710

Mildred SMITH, also known as Mildred R. Smith and Mildred Smith, as next friend of Ralph Smith, Appellants, v. Lynn R. WADE and Naomi Wade, Appellees.

No. 34652.

Supreme Court of Nebraska.

Jan. 29, 1960.

Syllabus by the Court.

1. Necessaries, within the meaning of section 69-402, R.R.S.1943, are goods suitable to the condition in life of an infant or other person, and to his actual requirements at the time of delivery.

2. The question of what are necessaries is a mixed one of law and fact which must be determined from the particular facts and circumstances of the case.

3. In an equity action the Supreme Court will, in determining the weight of evidence which is in irreconcilable conflict on a material issue, consider the fact that the trial court observed the witnesses and their manner of testifying.

4. A minor may repudiate and rescind his contracts before he reaches his majority.

5. A homestead is the house and land where the family dwells.

6. Ordinarily, a homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife.

Frank B. Morrison, Lincoln, for appellants.

McGinley, Lane, Powers & McGinley, Ogallala, for appellees.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, Justice.

This is an action in equity by Mildred R. Smith in her own behalf and as next friend of Ralph Smith, a minor, plaintiffs and appellants, against Lynn R. Wade and Naomi Wade, defendants and appellees, to have declared null, void, and of no effect a real estate mortgage for $3,256.23, dated July 9, 1956, on the north half of Lot 2, Goodrich's Subdivision of that portion of Lots 2, 3, 4, and 13 lying north of U. S. Highway No. 30 in Smith's Subdivision of that portion of the west half of Section 5 lying south of the public road in Township 13 North, Range 38 West of the 6th P. M. in Keith County, Nebraska, which mortgage was executed by the plaintiffs, who are husband and wife, in favor of the defendants, who are husband and wife, as joint tenants with right of survivorship, and to also have declared null and void any promissory note or notes or claimed indebtedness which the mortgage was given to secure.

As grounds for the right to have the mortgage, the note or notes, or claimed indebtedness declared null and void the plaintiffs alleged that they were husband and wife; that Mildred R. Smith had attained her majority by marriage at the time the mortgage was signed, but that Ralph Smith was at the time under the age of 21 years and a minor, and thus the action was brought by her as next friend of her husband; that the mortgage was null and void for the reason that it is upon the homestead of the parties and is repudiated by Ralph Smith; that it was procured by threats and duress and was not the voluntary act and deed of the plaintiffs; and that it was without valid consideration. No promissory notes are described in the petition but it is declared that all notes and other evidence of indebtedness claimed by defendants are null and void for the reason that they were procured by threats and duress. The prayer is that the mortgage, any pretended indebtedness, and any notes or checks be declared null and void.

The defendants filed an answer in the case in which they generally denied all allegations of the petition the truth of which was not admitted. The execution of the mortgage was admitted. It was pleaded that along with the mortgage seven notes were executed for the total amount of $3,256.23. They alleged that $794.62 of this amount was represented by necessaries of life furnished by Lynn R. Wade to the plaintiffs. They further alleged that the real estate mortgaged was solely owned by Mildred R. Smith. They further alleged that since $794.62 of the amount involved represented necessaries of life for the plaintiffs the defense of infancy was not available, and that since $1,655.61 of the amount was procured by artifice, fraud, and deceit of Ralph Smith he is estopped from asserting the defense of infancy.

By the answer it is asserted that Ralph Smith may not rescind until he attains his majority but this is not urged in the brief. The plaintiffs however present the opposite of this viewpoint by assignment of error.

By cross-petition the defendants prayed for adjudication of the validity of the mortgage and of the seven promissory notes secured by the mortgage, and for a declaratory judgment as to the rights of the parties with regard to the mortgage and the notes.

A trial was had after which a decree was rendered wherein relief was denied to plaintiffs and their action was dismissed. The district court by its decree specifically found that Ralph Smith was a minor. The court also found that a part of the amount involved was for necessaries of life, the particular amount not being declared. The following appears in the decree: 'IT IS FURTHER * * * DECREED that the Notes and Real Estate Mortgage executed by Plaintiffs in favor of the Defendants set forth in Answer and Cross-Petition of the Defendants are decreed to be valid and enforceable according to their terms by the Defendants as against the Plaintiffs, and each of them.'

A motion for new trial was filed by plaintiffs which was overruled. Thereafter the plaintiffs perfected an appeal to this court from the decree and the order overruling the motion for new trial.

The brief contains numerous assignments of error which the plaintiffs contend constitute grounds for reversal of the decree rendered. As a whole however they present in essence the questions (1) of whether or not a minor, or infant, within the meaning of legal terminology, may repudiate a contract before attainment of majority; (2) of whether or not a minor may repudiate a mortgage on real estate the title to which is in his wife who is not a minor within the meaning of law which real estate is the homestead of the parties, and thereby invalidate the mortgage; (3) of whether or not, if notes were executed which were in payment of necessaries of life, a mortgage on a homestead to secure them signed by the wife who was not a minor and by the husband who was a minor, could be repudiated by the husband, thus invalidating the mortgage; (4) of whether or not the repudiation of the notes by Ralph Smith was valid; and (5) of...