Weatherington v. Smith

• Decision Date: 18 October 1906
• Citation: 109 N.W. 381,77 Neb. 363
• Parties: WEATHERINGTON v. SMITH ET AL.
• Court: Nebraska Supreme Court

77 Neb. 363

109 N.W. 381

WEATHERINGTON

v.SMITH ET AL.

Supreme Court of Nebraska.

Oct. 18, 1906.

Syllabus by the Court.

Section 4, c. 36, Comp. St. 1903 (Cobbey's Ann. St. 1903, § 6203), provides that 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.

Estoppel will not supply the want of power or make valid an act prohibited by express provision of law. Whitlock v. Gosson, 53 N. W. 980, 35 Neb. 829, followed and approved.

A departure from the homestead for pleasure, business or health, does not constitute an abandonment thereof. Blummer v. Albright, 89 N. W. 809, 64 Neb. 249, followed and approved.

Neither spouse can abandon the homestead for the other without his, or her, free consent.

If a party relies upon a record to establish his title to realty and to relieve him of knowledge of secret liens known to his grantor, the record itself must show a chain of conveyances which discloses a perfect title in the grantor.

Commissioners' Opinion. Department No. 1. Appeal from District Court, Harlan County; Adams, Judge.

Action by William Weatherington against Arthur B. Smith and others. From the judgment, defendant Smith appeals, and plaintiff files a cross-appeal. Affirmed.Flansburg & Williams, for appellant.

E. R. Duffie, R. L. Keester, J. G. Thompson, and Henry W. Pennock, for appellees.

OLDHAM, C.

This was an action to quiet title in a quarter section of land situated in Harlan county, Neb. There is no disputed fact in the record. Every thing that is essential to the determination of the cause is either admitted in the pleadings or 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, Ill., 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...