Tromsdahl v. Nass

• Decision Date: 13 April 1914
• Parties: TROMSDAHL v. NASS et al.
• Court: North Dakota Supreme Court

27 N.D. 441

146 N.W. 719

TROMSDAHL

v.NASS et al.

Supreme Court of North Dakota.

March 14, 1914.

Rehearing Denied April 13, 1914.

Syllabus by the Court.

Action involves validity of a mortgage given by mortgagor, a married man, without his wife joining therein, and under the following facts: Mortgagor came here from Sweden in 1906, leaving his wife and six children there. In 1907 he made homestead entry on land in Williams county, upon which he established residence, and later offered final proof on June 8, 1908, the date on which he executed the mortgage in question. Receiver's receipt was issued October 23d following, with delivery of patent thereon in June, 1909. This mortgage was recorded in October, 1908. Two years later, in November, 1910, another mortgage was given to appellant Duncan Beaton, which was also recorded. If the first mortgage be invalid, the Beaton mortgage is a first and only mortgage, otherwise it is subject to plaintiff's mortgage. Each mortgage is for nearly as much as the land is worth. The entryman, mortgagor, testifies that he took the homestead as a home for himself and family with the intention of at some time, and as soon as he secured sufficient money to do so, to have his wife and family brought here from Sweden. He has always been dependent upon labor and has sent more than $300 to his family in Sweden for their support, sending the same in small amounts at regular intervals. He is 54 years old, his wife 55. He has never taken out final citizenship papers, having made final proof based on his declaration of intention to become a citizen. The usual homesteader's shack constituted the bulk of his improvements on the land, which he left in June, 1908, returning to Bottineau county, 200 miles distant, where he resided for four years to the date of trial in 1912. If the land was a state homestead (that is, was impressed with the characteristics of a home as guaranteed exempt by section 208 of the state Constitution and section 5049, R. C. 1905, to “every head of a family residing in this state * * * and consisting of a dwelling house in which the homestead claimant resides”), the mortgage of plaintiff is void, otherwise it is valid. Held, the tract never became a state homestead, as defined in sections 5049, 5050, as available to a claimant or to the head of a family, as defined by section 5070, R. C. 1905, for the want of a resident family residing upon the tract. To possess a homestead exemption there must be a resident family and a family residence wherein the homestead claimant resides. Residence within this state and upon the tract is required of both the head of the family and the family. This is not a case of temporary absence of the family from the state or homestead, nor has the family ever constructively acquired a domicile or a residence in this country under these facts. The exemption to homestead claimants was designed to protect those who subject themselves to the laws of our state and act in reliance thereon, but not to treat as homes what are not homes in fact nor give powers to nonresidents which could not under any circumstances be of use to them personally. Where the future removal of the family of the homestead claimant into this state of his residence is wholly uncertain, and a period of six years elapses without their removal from the foreign country to this state, no homestead exemption will be accorded to the husband. Intent alone to bring the family, unaccompanied by their removal from the foreign country within a reasonable time, is insufficient to bring the claimant within either the letter or the spirit of the state homestead statute. The mortgage is held to be valid.

Appeal from District Court, Williams County; Frank Fisk, Judge.

Action by Ole Tromsdahl against Theodore Nass and others to foreclose a mortgage. From a judgment for plaintiff, defendant Duncan Beaton appeals. Affirmed.Henry G. Middaugh and Rollo F. Hunt, both of Devils Lake, for appellant Duncan Beaton. Bowen & Adams, of Bottineau, for respondent.

GOSS, J.

Plaintiff brings this action to foreclose a real estate mortgage upon land in Williams county owned by the original homesteader, Theodore Nass, who admittedly executed and delivered his promissory notes for $1,070 and interest, secured by real estate mortgage signed by himself alone to this plaintiff, his brother. This mortgage was recorded two years before that of defendant and sole appellant Duncan Beaton, who has defended for himself alone and asked foreclosure of his $800 mortgage taken and recorded subsequent to plaintiff's mortgage, which first mortgage he desires to have declared invalid because Marie, wife of Theodore Nass, did not join in or sign the mortgage to plaintiff, as required by section 5052, R. C. 1905, if the tract was impressed with the character of a state homestead under sections 5049, 5050, 5070, R. C. 1905. Briefly summarized, the issue is not one of priority between mortgages, but instead whether the first mortgage, belonging to plaintiff, is valid; the mortgagor's wife not having joined therein.

There is no dispute in the material facts. Mortgagor, Theodore Nass, married his wife, Marie Nass, in Sweden in 1896, where they lived, and where six children were born to them. In July, 1906, he came to the United States, leaving his family in Sweden. In April, 1907, he made homestead entry on this land. Within the six months' period allowed for establishing residence on government homesteads, he established his residence on the tract and maintained it for the requisite eight months, when he made final proof. At the time of final proof, before United States Commissioner Flittie, at Williston, on the 8th of June, 1908, he executed and delivered the mortgage and notes in question to his brother, this plaintiff. His proof was subsequently accepted and a receiver's receipt thereon issued October 23, 1908, followed by patent dated June 17, 1909. Plaintiff's mortgage was recorded October 24, 1908. Two years thereafter, or on the 22d of November, 1910, the mortgage of $800 was executed to Duncan Beaton, and was recorded the 11th of January, 1911.

Nass has testified that he took the homestead as a home for himself and family and with the intention of at some time, as soon as he acquired the means to do so, to send to Sweden and have his wife and family brought over. He has been obliged to depend upon labor for his sustenance, and during the period from his arrival to the time of trial he has earned and sent upwards of $300 to his family in Sweden. This has been sent in small amounts at regular intervals and is proof on his part of his good faith toward his family. One child, a girl, has been brought to this country and at the time of trial was residing at Rugby; neither the time of her arrival nor her age being shown. It does not appear that she ever resided with him upon the homestead or that she was in this country at the time of the execution of the mortgage to plaintiff. From the care with which the case was tried, we shall assume that she was not then in this country or residing with the mortgagor on this land; otherwise proof of the facts would have been made. His wife is 55 years old and plaintiff 54. The homesteader is an alien, never having taken out final citizenship papers, having tendered final proof on his declaration of intention to become a citizen, as the homestead law permits may be done on 14 months' proof, where the land is purchased for the $200 fee per quarter section paid the government. The land is not worth the total of both mortgages; the proof showing the value thereof to be about $1,500. The usual homesteader's shack constituted the bulk of the improvements at the time of proof. Soon after proof was made in June, 1908, Nass left his homestead and returned to Bottineau county, 200 miles distant, where he has at all times since resided, and where he was residing at the date of trial on July 12, 1912. Practically all of the testimony offered by defendant Beaton was taken under objection, for which basis is laid in plaintiff's pleadings, to the effect that as no declaration of homestead in the real property mortgaged has ever been filed by any one, and that more than two years have elapsed after the execution of the instrument sought to be foreclosed and the commencement of these proceedings, in time nearly four years, no defense based upon homestead rights can be asserted as against the mortgage. Plaintiff seeks to avail of sections 5053, 5054, R. C. 1905, and as against such claim the defendant claims to have been in actual possession of the land when mortgaged, and has not since quit possession thereof up to the time of the interposition of his defense in this action.

Any rights of Nass or defendant Beaton must be founded upon the assumption that the proof establishes that Nass is entitled to claim the homestead exemption, as a homestead is defined by section 5049, R. C. 1905. For either of the defendants to avail of homestead rights, the facts must bring Nass within this statutory exemption. The statute defines a homestead as follows: The homestead of every “head of a family residing in this state,” of a prescribed area, “and consisting of a dwelling house in which the homestead claimant resides, and all of its appurtenances,” shall be exempt from forced sale as provided by law. The question first arising under the proof is whether Nass, a married alien, with a family, whom he is...