Swiden v. Hasn
| Citation | 175 N.W. 213,43 N.D. 360 |
| Decision Date | 19 October 1919 |
| Court | United States State Supreme Court of North Dakota |
Action in District Court, McIntosh County, to determine adverse claims.
From a judgment in favor of the plaintiff the defendants Hasn and Jones have appealed and demand a trial de novo.
Affirmed.
Franz Shubeck and W. S. Lauder, for appellants.
It is not necessary that the person signing actually himself affix his signature. If he simply touch the pen or even the hand of another, and the cross is made by his direction or with his acquiescence, the signing is sufficient. Bartlett v Drake, 100 Mass. 175, 1 Am. Rep. 101; Gardner v Gardner, 52 Am. Dec. 740; Northwestern Loan & Bkg Co. v. Jonasen, 79 N.W. 840; Conlan v. Grace, 36 Minn. 270, 30 N.W. 880; Harris v. Harris, 59 Cal 620; Lewis v. Watson, 22 L.R.A. 297.
The four facts essential to a proper acknowledgment are set forth in Cannon v. Daming, 3 S.D. 421, 53 N.W. 863.
To overthrow an acknowledgment instrument, fair on its face, the evidence must be "so full and satisfactory to convince the mind that the certificate is false or forged." Griffin v. Griffin, 125 Ill. 43, 17 N.E. 785; Marston v. Brittenham, 76 Ill. 611.
"The certificate makes a prima facie case; that is the least that can be claimed for it." Dock Co. v. Russell, 68 Ill. 438; Borland v. Volrath, 33 Iowa 130; Blarson v. Ford, 108 Ill. 26.
"Good faith will be persumed on the part of all persons and officers in the execution, acknowledgment, filing, and recording of written instruments." Laws 1913, § 5580.
Courts have, with great uniformity, in this class of cases (actions to impeach written instruments) required the proof that should destroy the recitals in a solemn instrument to be clear, satisfactory, and specific, and of such a character as to leave in the mind of the chancellor no hesitation or substantial doubt. McGuin v. Lee, 10 N.D. 169; Larson v. Duitel (S.D.) 85 N.W. 1008; Droge Elev. Co. v. Brown Co. (Iowa) 151 N.W. 1048; Punch v. Williams, 34 Wis. 268. See also Maxwell Land Grant Case, 121 U.S. 380, 30 L.Ed. 949, 7 S.Ct. 1015; Veazie v. Williams, 8 How. 134-157, 12 L.Ed. 1018; United States v. San Jacinto Tin. Co. 125 U.S. 273-300; 8 S.Ct. 850, 31 L.Ed. 747, and other numerous notations cited.
John D. Lynch, Dan R. Jones, and A. G. Divet, for respondents.
Occupying this position of confidence he (Jones) could not deal with her to his own advantage without not only refraining from deceiving her, but further without affirmatively advising her of what was and was not to her best interest. He must guard her interests in preference to his own. Comp. Laws 1913, §§ 6275 and 6281; Field's Civ. Code, §§ 1171 and 1177; Liland v. Tweto, 19 N.D. 551; Gardner v. Ogden, 22 N.Y. 333; McFadden v. Jenkins (N.D.) 169 N.W. 151; King v. White (Ala.) 24 So. 710; Thomas v. Whitney (Ill.) 57 N.E. 808; 2 Pom. Eq. Jur. §§ 948, 953, 956 and cases cited.
On examination Jones would not answer direct, or give details. This examination went to the credibility of the witness; he withheld certain evidence and the presumption is that if the evidence had been given it would have been adverse and tend to lessen his credibility. Jones, Ev. Blue Book, § 19; Cole v. Lake Shore & C. R. Co. (Mich.) 54 N.W. 638; Robinson v. Life Ins. Co. 144 F. 1005; Manhard & C. Co. v. Rothschild (Mich.) 80 N.W. 707; Wigmore, Ev. § 285; Wyldes v. Patterson, 31 N.D. 282; Nelson v. Hall (Mo.) 79 S.W. 500; McDonough v. O'Niell, 113 Mass. 92; Smith v. Tosini (S.D.) 48 N.W. 299.
The rule is a trustee under such circumstances must affirmatively account, and, failing, the most possible liberality will be indulged in in construing the evidence, and he will be held liable for the largest amount that may under the evidence be in his hands. Blanvelt v. Ackerman, 23 N.J.Eq. 495; Irre Gaston Twist, 35 N.J.Eq. 6; Landis v. Scott, 32 Pa. 495; McCulloch v. Tompkins (N. J.) 49 A. 474; Perrin v. Lepper (Mich.) 40 N.W. 859; Biddle Purchasing Co. v. Snyder, 96 N.Y.S. 356; Merritt v. Merritt, 67 N.Y.S. 188.
Nothing is deemed a consideration for a contract that is not so intended by the parties. Fire Ins. Asso. v. Wickham, 141 U.S. 564, 35 L.Ed. 860; Philpot v. Gruninger, 81 U.S. 570, 20 L.Ed. 743; Kilpatrick v. Newloud, 16 Pa. 117; Ellis v. Clark, 110 Mass. 389.
Mere casual transactions not in the regular course of the party's business are not provable by the books of account. 2 Enc. Ev. 625 and 626.
Cash items are not so provable. 2 Enc. Ev. 645-648; Lyman v. Beekle, 7 N.W. 673; Schafer v. McCracken, 58 N.W. 910; Smith v. Rentz, 15 L.R.A. 171; Prince v. Smith, 4 Mass. 454.
Items of money paid out on orders are not so provable. Branning v. Vorhees, 14 N.J.L. 590; 2 Enc. Ev. 620 and 648.
This is an action to determine adverse claims. The defendants, Hasn and Jones, appeal from a judgment of the trial court quieting title in the land involved and declaring the mortgage of such defendants to be not a lien upon such land. A trial de novo is demanded in this court. The facts substantially are as follows:
On June 2, 1909, the plaintiff, the respondent herein, executed a mortgage to the appellants upon 160 acres of land in McIntosh county to secure an indebtedness of $ 1,175. This mortgage contained a misdescription of the land involved. This mortgage was later foreclosed by action in 1914, attempted service being secured by publication. The judgment rendered in such foreclosure action was later vacated in March, 1917, by reason of jurisdictional defects. In August, 1917, action again was instituted to foreclose such mortgage by the appellants herein, and, thereafter, in October, 1917, this action herein to determine adverse claims was instituted; the appellants by separate answer set up the mortgage in question as a lien upon the land; to such answer, the respondents replied, setting up fraud, deceit, misrepresentation, lack of consideration, and abuse of confidential relations in avoidance of such mortgage. At the trial commencing June 5, 1918, it was stipulated that the evidence taken might apply to both of said actions; that the actions, however, should not be consolidated, but as separate judgment should be entered in each.
The land in question was homesteaded by the deceased husband and final proof made shortly before his death. After his death some contest was made concerning this final proof, but subsequently, nevertheless, a governmental patent was issued upon the final proof of the deceased husband. The parties before this court are Assyrians. The respondent and her deceased husband were married in Assyria and came from some town therein known as Karoun. For sometime prior to his death the deceased husband had been afflicted with tuberculosis. He sent for his wife then in Assyria. She arrived some time in December, 1908. Thereafter she lived on the homestead with her husband excepting such times as he was away taking medical treatment at various places until the time of his death from his affliction, during the last days of May, 1909. Immediately, after the funeral of the deceased husband, the appellants secured this mortgage from the respondent as security for the payment of claims against the deceased husband for moneys advanced in making proof on the land, for moneys borrowed, traveling expenses of the wife paid, funeral expenses, and also to cover other claims of creditors against the deceased. Trouble apparently soon arose between the relatives of the deceased husband, particularly his brother and the respondent. In accordance with her testimony, not only was this mortgage secured from her, but also all of the personal property of the deceased husband was taken away from her. She was driven from home and the home of her brother-in-law. She fled into the hills; there she was picked up by one Swiden and subsequently some two months thereafter married the brother of her new protector. From the record apparently she has never received anything from the estate of her deceased husband, and apparently there has never been any probate thereof.
The trial court, in its findings, in effect determined that the signature of the respondent to the mortgage in question was induced by fraud, deception, misrepresentation, and overreaching of the appellants, in abuse of confidential relations existing and without consideration, reciting in detail the particular acts and circumstances which gave rise to such fraud and deception.
Ths appellants herein have challenged these findings principally upon the grounds that the record discloses that the respondent, with full understanding,...
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