Solt v. Anderson

• Decision Date: 05 May 1904
• Docket Number: 13,508
• Parties: LUSETTA SOLT, ADMINISTRATRIX, ET AL., APPELLANTS, v. LEWIS C. ANDERSON, APPELLEE
• Court: Nebraska Supreme Court

99 N.W. 678

71 Neb. 826

LUSETTA SOLT, ADMINISTRATRIX, ET AL., APPELLANTS, v. LEWIS C. ANDERSON, APPELLEE

No. 13,508

Supreme Court of Nebraska

May 5, 1904

APPEAL from the district court for Hamilton county: BENJAMIN F. GOOD, JUDGE. Affirmed.

AFFIRMED.

Hainer & Smith, for appellants.

J. M Day, contra.

ALBERT C. FAWCETT and GLANVILLE, CC., concur.

OPINION

ALBERT, C.

Three opinions have already been filed in this case. See 62 Neb. 153, 63 Neb. 734, 67 Neb. 103. The following from the last opinion is sufficient, for present purposes, to show the nature of the suit.

"Lusetta Solt, widow and administratrix of Jacob Solt, brought this suit against Anderson, joining the heirs at law of the intestate, as required by section 335a, chapter 23, Compiled Statutes (Annotated Statutes, 5185), setting up a contract 'entered into' between said Jacob Solt, in his lifetime, and said Anderson, for the sale of certain land held by Solt, and praying for specific performance thereof."

When the case reached the district court, an amended answer was filed, setting forth that the premises in question, at the time the contract was made, were the family homestead of the plaintiff and her husband, not exceeding $ 2,000 in value and less than 160 acres in extent, and that the said contract was not acknowledged by the plaintiff and her husband, or either of them, as required by the homestead act, and is therefore void. It is conceded that the premises were the homestead of the parties at the time the contract was made. The contract was introduced in evidence, and bears no certificate of any officer authorized to take acknowledgments that it was acknowledged, nor does it appear that any such certificate was ever made. It was signed and witnessed before a justice of the peace, and the plaintiff introduced parol evidence to the effect that it was in fact acknowledged. This evidence is contradicted by evidence introduced by the defendants, but the evidence on that point clearly preponderates in favor of the plaintiff. The court found in favor of the defendants and decreed accordingly. The plaintiff appeals.

The only question presented by the record is, whether it is competent to show by parol that an instrument, purporting to convey or incumber a homestead, which bears no certificate of acknowledgment, was in fact acknowledged? If it is, then the decree of the district court is clearly against the weight of evidence and should be reversed.

We think the question should be answered in the negative. Section 12, chapter 73, Compiled Statutes (Annotated Statutes, 10212), provides: "Every officer who shall take the acknowledgment * * * of any deed, shall indorse a certificate thereof, signed by himself, on the deed." Section 46 provides: "The term 'deed,' as used in this chapter, shall be construed to embrace every instrument in writing, by which any real estate or interest therein is created, aliened, mortgaged or assigned, or by which the title to any real estate may be affected in law or equity, except last wills, and leases for one year or for a less time." Section 4 of the homestead act (Compiled Statutes, ch. 36; Annotated Statutes, 6203) provides: "The homestead of a married person can not be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife."

The foregoing sections are in pari materia, and should be construed together. Section 4 makes the acknowledgment of an instrument affecting the title to the homestead of a married person an essential step in its execution, and unless such step is taken the instrument is void. Horbach v. Tyrrell, 48 Neb. 514, 67 N.W. 485; Havemeyer v. Dahn, 48 Neb. 536, 67 N.W. 489; Linton v. Cooper, 53 Neb. 400, 73 N.W. 731. Section 12 provides that the evidence of such step shall be perpetuated by the certificate of the officer taking the acknowledgment indorsed on the instrument itself. The sections read together show, we think, that it was the intention of the lawmakers that it should appear from the instrument itself, that every step essential to its due execution had been taken. As we have seen, the acknowledgment is an essential step, when the property affected by the instrument is a homestead, and it should therefore appear on the instrument itself; and its omission therefrom, like the omission of any other essential step, renders the instrument invalid; and it can not be supplied by parol.

We do not overlook the cases holding that, as between the parties an acknowledgment of a conveyance or an instrument affecting the title to real estate is not essential, and that the office of an acknowledgment is to furnish authentic evidence that the instrument has been duly executed, and is entitled to record. Linton v. Cooper, 53 Neb. 400, 73 N.W. 731; Fisk v. Osgood, 58 Neb. 486, 78 N.W. 924. But those cases have no application where, as in the case of a homestead, the acknowledgment is an essential step in the execution of the instrument, and neither of them...