Weatherington v. Smith

• Decision Date: 18 October 1906
• Docket Number: 14,590
• Citation: 109 N.W. 381,77 Neb. 363
• Parties: WILLIAM WEATHERINGTON, APPELLANT, v. ARTHUR B. SMITH ET AL., APPELLEES. [*]
• Court: Nebraska Supreme Court

109 N.W. 381

77 Neb. 363

WILLIAM WEATHERINGTON, APPELLANT, v. ARTHUR B. SMITH ET AL., APPELLEES. ^[*]

No. 14,590

Supreme Court of Nebraska

October 18, 1906

APPEAL from the district court for Harlan county: ED L. ADAMS JUDGE. Affirmed.

AFFIRMED.

Flansburg & Williams, for appellant.

R. L Keester, J. G. Thompson, Henry W. Pennock and J. E. Kelby contra.

OLDHAM, C. AMES, C., concurs. EPPERSON, C., dissents.

OPINION

OLDHAM, C.

This was an action to quiet title in a quarter section of land situated in Harlan county, Nebraska. There is no disputed fact in the record. Everything that is essential to the determination of the cause is either admitted in the pleadings or was testified to, without contradiction, at the trial in the court below. The facts established by the record are that plaintiff, William Weatherington, homesteaded the land in controversy in the year 1883, and resided thereon with his wife and minor children; that later in the same year, for the purpose of transferring the legal title from himself to his wife, he conveyed the premises to one Flansburg for the express consideration of $ 600, and Flansburg, as a part of the same transaction, reconveyed the premises to the wife, Mrs. Eliza Weatherington; that in 1890 Mrs. Weatherington and her husband executed a mortgage on the premises to secure a loan of $ 770, due five years after date; that they continued to live with their family on the premises until 1891, when plaintiff Weatherington was adjudged insane by the board of insanity of Harlan county and committed to the asylum at Lincoln, where he remained until 1894, when he was transferred to the asylum at Hastings, where he was confined and treated until July, 1904, when he was adjudged sane and restored to his liberty; that after the incarceration of Weatherington in the asylum his wife and family continued to reside on the homestead until 1894, when they removed to their friends and relatives in the state of Illinois, without any intention of returning to Nebraska, but with the intention of establishing a domicile in Illinois; that on the 10th day of October, 1896, Mrs. Weatherington, while residing in Illinois, made a warranty deed of the premises, subject to the mortgage and taxes then due, to Albert Cross and Alexander Johnston, for a consideration of $ 500, which was a fair and reasonable consideration for the lands. This deed contained the following stipulation and recital: "Hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of this state, with the exception of the crops now on said land, which I hereby reserve. (Signed) Mrs. Eliza Weatherington." This deed was acknowledged before a notary public of Hancock county, Illinois, but neither in the deed nor in the acknowledgment thereof is Mrs. Weatherington referred to as being single or unmarried. The record also shows that Cross and Johnston had knowledge of the fact that plaintiff, Weatherington, was an inmate of the insane asylum at the time they received this conveyance; that they entered into possession of the premises under this conveyance, paid off and discharged the mortgage thereon, and later, in 1899, for a fair and valuable consideration conveyed the premises by warranty deed to defendant Smith, who had no actual knowledge of Weatherington's rights, but took the land relying on the record title thereof.

After plaintiff Weatherington had been discharged from the asylum he was taken to his family in Illinois, but did no act indicating an adoption of the Illinois residence as his home. He went from there to the state of Ohio to transact some business, and then returned to Nebraska, and on the 1st day of December, 1904, instituted the case at bar, in which he asked to have the title to the land quieted in himself, and the deed from himself and wife to Flansburg, and the deed from Flansburg to Mrs. Weatherington, and the deed from Mrs. Weatherington to Cross and Johnston, and the deed from Cross and Johnston to defendant Smith, canceled and held for naught, and for an accounting for the rents and profits of the premises. At the close of the testimony the court entered a decree canceling the deed from Mrs. Weatherington to Cross and Johnston, and the deed from Cross and Johnston to defendant Smith, and rendered an accounting, in which defendant Smith was credited with the mortgage debt, and interest and taxes paid, and improvements made upon the land, and charged with the rents and profits actually received from the land. The decree quieted the title to the premises in Eliza Weatherington, subject to the homestead right of the plaintiff, and subject to the remainder due on the mortgage debt after deducting the rents and profits. From this decree defendant Smith has appealed to this court, and plaintiff Weatherington has filed a cross-appeal, in which he complains of the action of the trial court in refusing to cancel all the deeds alleged against and quiet the title to the premises in him.

Section 4, ch. 36, Comp. St. 1903, provides: "The homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife." The requirements of this section of the statute have been strictly adhered to in a long line of decisions in this court. See Aultman & Taylor Co. v. Jenkins, 19 Neb 209, 27 N.W. 117; Swift v. Dewey, 20 Neb. 107, 29 N.W. 254; Larson v. Butts, 22 Neb. 370, 35 N.W. 190;...