Vannatta v. McClintock

• Decision Date: 23 October 1913
• Citation: Vannatta v. McClintock, 26 N.D. 166, 144 N.W. 76 (N.D. 1913)
• Court: North Dakota Supreme Court

144 N.W. 76

26 N.D. 166

ELY VANNATTA v. W. D. MCCLINTOCK

Supreme Court of North Dakota

October 23, 1913

Appeal from a judgment of the District Court of Pierce County; Burr J.

Affirmed.

F. J Funke, for appellant.

The homestead law confers the right of possession upon the entryman when the entry is made.32 Cyc. 833;Tiernan v Miller,69 Neb. 764, 96 N.W. 661;Marquez v. Frisbie101 U.S. 473, 25 L.Ed. 800.

One in undisputed possession of such land with intent to obtain title is deemed the owner as against everyone except the government.Earnhart v. Switzler,105 C. C. A. 260, 179 F. 832;Miller v. Imperial Water Co.156 Cal. 27, 24 L.R.A.(N.S.) 372, 103 P. 227;Orrell v. Bay Mfg. Co.83 Miss. 800, 70 L.R.A. 881, 36 So. 561;Reservation State Bank v. Holst,17 S.D. 240, 70 L.R.A. 799, 95 N.W. 931;Red River & L. of W. R. Co. v. Sture,32 Minn. 95, 20 N.W. 229;Olson v. Huntamer, 6 S.D. 364, 61 N.W. 479.

Every species of title, inchoate or complete, is comprehended within the term "property" as applied to lands subject to homestead exemption rights which lie in contract; contracts executory or fully executed.Soulard v. United States,4 Pet. 511, 7 L.Ed. 938;King v. Gotz, 70 Cal. 236, 11 P. 656.

Whatever character of title to land held as homestead, or whatever may inure or grow out of such title, will be impressed with homestead quality.Alexander v. Jackson,92 Cal. 514, 27 Am. St. Rep. 158, 28 P. 593;Perry v. Ross,104 Cal. 15, 43 Am. St. Rep. 66, 37 P. 757;Stinson v. Richardson,44 Iowa 373;Moore v. Reaves,15 Kan. 150;McCabe v. Mazzuchelli,13 Wis. 478;Hoy v. Anderson,39 Neb. 389, 42 Am. St. Rep. 591, 58 N.W. 125;Helgebye v. Dammen,13 N.D. 167, 100 N.W. 245;Oswald v. McCauley,6 Dak. 289, 42 N.W. 769;First Nat. Bank v. Lamont, 5 N.D. 393, 67 N.W. 45.

A conveyance of a homestead by a married person which is not executed by both husband and wife is void.Roby v. Bismarck Nat. Bank,4 N.D. 161, 50 Am. St. Rep. 633, 59 N.W. 719;Myrick v. Bill,5 Dak. 167, 37 N.W. 370;Brokken v. Baumann,10 N.D. 453, 88 N.W. 84;Roberts v. Roberts,10 N.D. 531, 88 N.W. 289;Helgebye v. Dammen,13 N.D. 167, 100 N.W. 245;First Nat. Bank v. Lamont,5 N.D. 393, 67 N.W. 145;Silander v. Gronna,15 N.D. 552, 125 Am. St. Rep. 616, 108 N.W. 544;Gaar, S. & Co. v. Collin,15 N.D. 622, 110 N.W. 81;Justice v. Souder,19 N.D. 613, 125 N.W. 1029;Engholm v. Ekrem, 18 N.D. 185, 119 N.W. 35.

Where an acknowledgment is necessary to give effect to an instrument, such instrument becomes a completed one, and takes effect from the date of acknowledgment, and not from date of execution.1 Cyc. 560;Doe ex dem. De Peyster v. Howland, 8 Cow. 277, 18 Am. Dec. 445.

Paul Campbell, for respondent.

Our statute is not limited in its application to homestead claimants, to the exclusion of grantees, mortgagees, etc.Rev. Codes, 1905, § 5054.

The constitutional enactment in so far as it creates the state homestead is plainly self-executing.15 Am. & Eng. Enc.Law, 2d ed. 528, 529;6 Am. & Eng. Enc.Law, 2d ed. 912-914;Calmer v. Calmer,15 N.D. 120, 106 N.W. 684;Roesler v. Taylor,3 N.D. 546, 58 N.W. 342.

The homestead is real property owned by the head of a family and occupied by the family as a home.15 Am. & Eng. Enc.Law, 2d ed. 525, citing, Century Dict.; Bouvier's Law Dict.;Lyon v. Hardin,129 Ala. 643, 29 So. 777;Re Owings, 140 F. 739.

Where the Constitution or statute exempts the homestead from levy or sale "under mesne or final process," it presupposes a title capable of a transfer by such sale, and does not exempt land unless the claimant has such a title. 15 Am. & Eng. Enc.Law, 2d ed. 557;Wisner v. Farnham,2 Mich. 472;Brown v. Keller,32 Ill. 151, 83 Am. Dec. 258;Ketchin v. McCarley,26 S.C. 1, 4 Am. St. Rep. 674, 11 S.E. 1099;Helgebye v. Dammen,13 N.D. 171, 100 N.W. 245;Roby v. Bismarck Nat. Bank,4 N.D. 156, 50 Am. St. Rep. 633, 59 N.W. 719;Myrick v. Bill, 5 Dak. 167, 37 N.W. 369.

The law protects every estate which could be sold on execution.21 Cyc. 502, note, 46;Jones v. Jones,213 Ill. 228, 72 N.E. 695.

The mortgage in question was given before the mortgagor had acquired any estate in the land, his only right being a possessory interest.Adams v. McClintock,21 N.D. 483, 131 N.W. 394.

The premises were not a state homestead.The entryman during the first five years has only a possessory or proprietary interest in the Federal homestead.After five years, and being still in possession, he becomes the equitable owner, and by compliance with the law, this right may be ripened into a perfect legal title. 32 Cyc. 786-787, note, 18-23, 788, note 26-29, 817, note, 46-51, 818, note, 52, 54-56, 819, 820, note, 69 and 70-72, 833, 834, 855, 1029, 1030;Gjerstadengen v. Van Duzen,7 N.D. 612, 66 Am. St. Rep. 679, 76 N.W. 233;Bergstrom v. Svenson, 20 N.D. 55, 126 N.W. 497, Ann. Cas. 1912C, 694.

Appellant bought from Hublou with knowledge of the law, that the bar of the statute was against his grantors.37 Cyc. 665;25 Cyc. 1009, 1010, note, 23;15 Cyc. 1001-1024.

The statute under consideration is a limitation law, and the time between its passage and going into force is reasonable.Adams & F. Co. v. Kenoyer,17 N.D. 302, 16 L.R.A.(N.S.) 681, 116 N.W. 98;Clark v. Beck,14 N.D. 287, 103 N.W. 755.

This law was in effect before appellant or his grantors acquired any interest, and the propositions here involved have been passed by this court.Justice v. Souder,19 N.D. 613, 125 N.W. 1029;Styles v. Theo. P. Scotland & Co.22 N.D. 469, 134 N.W. 708.

The grantee's interest and estate are derived solely from the husband, owner; he claims under him; takes no greater rights than he possessed, and is estopped where his grantor is estopped.21 Cyc. 460;Dun v. Dietrich,3 N.D. 3, 53 N.W. 81;Kuhnert v. Conrad, 6 N.D. 215, 69 N.W. 185.

The deed or mortgage became valid and effective on abandonment of homestead.Rev. Codes, 1905, §§ 4974-5053,5054;Robertson v. Hefley,55 Tex. Civ. App. 368, 118 S.W. 1159;Kirby v. Blake,53 Tex. Civ. App. 173, 115 S.W. 674;Note to Jerdee v. Furbush,95 Am. St. Rep. 920;Helgebye v. Dammen,13 N.D. 167, 100 N.W. 245;Gee v. Moore,14 Cal. 472;21 Cyc. 460, 528, 535, 539-546, 547, 549, 616;16 Cyc. 686-715;Vickers v. Peddy,55 Tex. Civ. App. 259, 118 S.W. 1110;Keyes v. Scanlan,63 Wis. 345, 23 N.W. 570;Bremseth v. Olson,16 N.D. 242, 13 L.R.A.(N.S.) 170, 112 N.W. 1056, 14 Ann. Cas. 1155;Foogman v. Patterson, 9 N.D. 254, 83 N.W. 15.

The Constitution exempts the homestead only from foreclosure.Calmer v. Calmer,15 N.D. 120, 106 N.W. 684;McCanna v. Anderson,6 N.D. 482, 71 N.W. 769;Gaar, S. & Co. v. Collin,15 N.D. 623, 110 N.W. 81;Roesler v. Taylor, 3 N.D. 546, 58 N.W. 342;21 Cyc. 460-462, 527-529, 622, 623.

If an instrument is void, notice of it certainly cannot render it valid.If not void, then the record of it constitutes notice.Roby v. Bismarck Nat. Bank,4 N.D. 156, 50 Am. St. Rep. 633, 59 N.W. 719;1 Cyc. 516.

OPINION

SPALDING, Ch. J.

This is an appeal by the plaintiff, Ely Vannatta, from a judgment entered by the district court of Pierce county on the 3d of January, 1912, in an action to determine adverse claims to the north half of the southeast quarter of section two, and the northwest quarter of the southwest quarter and the southwest quarter of the northwest quarter of section one, in township 153 north of range 74 west, in Pierce county, North Dakota.The judgment quieted title in the plaintiff and appellant, Vannatta, as against all the defendants except the respondent, W. D. McClintock.It was adjudged that he held a valid and subsisting lien by mortgage upon the premises, prior and paramount as an encumbrance thereon, to the right, title, estate, and interest of the plaintiff, Vannatta, and the judgment contained the usual provisions and directions for foreclosing such mortgage.None of the defendant lien holders appealed, and the contest lies between the plaintiff-appellant, Vannatta, and the defendant-respondent, W. D. McClintock, and only the judgment roll is before us, the question being whether the findings of fact sustain the judgment.

Without setting out such findings in detail, it is sufficient to say that it appears that one George Goetz was the head of a family dependent upon him for support, which family included his wife, Barbara Goetz, at all times material to a consideration of this case; that on the 20th of August, 1900 Goetz made a homestead filing and entry upon the premises in controversy, and on about the same day entered into possession thereof and took up his residence thereon with his family in a dwelling house situated upon said premises; and that such residence continued up to and until some time in the month of April, 1907, when they voluntarily quit possession thereof and removed their residence therefrom, and had no intent to return thereto, and voluntarily abandoned any homestead right or claim therein or thereto.No declaration of homestead in said premises was ever made or recorded; that on or about the 18th day of November, 1905, said Goetz made final proof upon said premises, and on that day received a final receiver's receipt from the receiver of the appropriate United States land office therefor, which receipt was recorded in the office of the register of deeds of Pierce county, North Dakota, on December 28th, 1905; and the United States patent therefor was delivered to Goetz on the 30th of June, 1906, and recorded on the 17th of November, 1910.On or about the 17th day of December, 1904, said Goetz executed and delivered a mortgage on said premises to the McHenry County State Bank, containing the usual covenants of warranty, and duly executed.This mortgage was duly recorded in the office of the register of deeds of ...